Subjective Bargaining Standard: Good Faith

As it pertains to collective bargaining, "good faith" has a long history in American labor law. In Michigan, PERA specifically states:

"[T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising under the agreement, and the execution of a written contract, ordinance, or resolution incorporating any agreement reached if requested by either party, but this obligation does not compel either party to agree to a proposal or require the making of a concession."[59]

Henry Saad: “Good-faith bargaining — no one has ever described that very well. It’s like with pornography: You know it when you see it. The jingles are true — you’ve got to keep an open mind when there are proposals that are serious. And the reasonable proposals, you’ve got to explore them; find out what is at the heart of them, what is the concern; see if you can narrow it down. Because sometimes you’re going to get proposals that aren’t real clear. But once you do, you make an effort. ...”

Sandra Feeley Myrand: “Good faith goes hand-in-hand with integrity.”

The Michigan Supreme Court has opined on the subject in the following manner:

"The primary obligation placed upon the parties in a collective bargaining setting is to meet and confer in good faith. The exact meaning of the duty to bargain in good faith has not been rigidly defined in the case law. Rather, the courts look to the overall conduct of a party to determine if it has actively engaged in the bargaining process with an open mind and a sincere desire to reach an agreement. … The law does not mandate that the parties ultimately reach agreement, nor does it dictate the substance of the terms on which the parties manifest such an attitude and conduct that will be conducive to reaching an agreement."[60]

While good faith is at the heart of collective bargaining, it is not always an easy concept to apply. Determining whether a party is acting in good faith is complicated, as it involves the proposals made by the parties, the procedures they followed and the manner of their negotiating. Thus, courts will look to the totality of the circumstances in determining whether a party has circumvented its obligation to bargain and reach an agreement.[61]

Brian Higgins: “We’re presenting data; we’re not hiding anything. When we present information on our budget, our teachers trust that information because we are always above board. We are not hiding it by saying, ‘We’re poor, we’re poor, we don’t have any money’ and then at the end of the year say[ing], ‘Oh, by the way, we’ve found half a million dollars.’ We don’t do that. We’ve been above board; we’ve been honest when things do change because a budget is a living, floating document. It’s always changing, and we explain why. There is trust that develops because of that kind of thing. We share the information. It’s not secret; they’re entitled to find it anyway, and that just engenders trust, and trust helps build the relationship and helps you get through situations like that.”

Henry Saad: “[E]very time I acted as chief negotiator, I wouldn’t take anything to the board unless I’d thoroughly reviewed its history and all of its financial and political implications with people in the administration who had been there for many, many years.”