## Facts

- Hardesty Company, Inc., doing business as Mid-Continent Concrete (Hardesty), negotiated with a labor union that represented a unit of Hardesty’s employees.
- In bargaining, Hardesty proposed major reductions in wages and benefits, including eliminating overtime pay that had made up a large part of employees’ earnings.
- Hardesty also proposed reducing insurance benefits and eliminating a 401(k) plan and a bonus plan.
- As bargaining continued, Hardesty proposed increasingly unfavorable vacation terms rather than moving toward compromise.
- During negotiations, Hardesty made claims about its economic situation and bargaining position, including that the unit was Hardesty’s least profitable and that the company was considering a company-wide wage cut, but those claims were not supported in a way that satisfied the union.
- Bargaining was marked by unexplained delays.
- Two supervisors made statements to employees indicating that the company intended to prolong negotiations until the next opportunity for employees to vote on the union, suggesting an intent to avoid reaching an agreement.
- The union filed unfair labor practice charges alleging that Hardesty was bargaining without a real intent to reach an agreement (surface bargaining) in violation of the National Labor Relations Act (NLRA).
- An administrative law judge found Hardesty engaged in surface bargaining, and the National Labor Relations Board (NLRB) reviewed the case and issued an order.
- Hardesty sought review in the U.S. Court of Appeals for the Eighth Circuit, and the NLRB sought enforcement of its order.

## Issues

1. Whether substantial evidence supported the NLRB’s finding that Hardesty violated NLRA §§ 8(a)(1) and 8(a)(5) by engaging in surface bargaining rather than bargaining in good faith.
2. Whether Hardesty’s bargaining proposals, delays, and supervisors’ statements could be considered together to show a lack of genuine intent to reach agreement.
3. Whether the Eighth Circuit should enforce the NLRB’s remedial order.

## Decision

- The NLRB found Hardesty violated NLRA §§ 8(a)(1) and 8(a)(5) by engaging in surface bargaining, based on the overall pattern of Hardesty’s conduct at the bargaining table.
- The NLRB relied on the combination of severe and regressive proposals affecting core terms of employment, unsupported bargaining claims, delays, and management statements indicating an intent to stall until a future union vote.
- The NLRB ordered Hardesty to cease and desist from unlawful bargaining conduct and to bargain in good faith with the union.
- The Eighth Circuit held the NLRB’s findings were supported by substantial evidence and enforced the Board’s order.

## Legal Principles

- The duty to bargain in good faith under NLRA § 8(a)(5) is assessed under the totality of an employer’s bargaining conduct; surface bargaining may be shown when actions and proposals indicate no real intent to reach agreement.
- Hard bargaining, including seeking concessions, is not unlawful by itself; it becomes unlawful when the overall conduct shows the party is only going through the motions of bargaining.
- Regressive or increasingly unfavorable proposals on mandatory subjects (such as wages, overtime, insurance benefits, retirement plans, bonuses, and vacation) can support a finding of surface bargaining when combined with other evidence of stalling or bad faith.
- Employer statements by supervisors that tend to interfere with employees’ NLRA § 7 rights may violate NLRA § 8(a)(1) and may also support an inference that the employer is not bargaining in good faith.

## Conclusion

Hardesty’s combination of far-reaching concession demands, worsening proposals over time, delays, unsupported claims used to justify concessions, and supervisor remarks about stalling until a future union vote supported the NLRB’s finding that Hardesty was surface bargaining in violation of NLRA §§ 8(a)(1) and 8(a)(5); the Eighth Circuit enforced the Board’s order requiring Hardesty to bargain in good faith.


Hardesty Company, Inc. DBA Mid-Continent Concrete, 336 N.L.R.B. 258, 308 F.3d 859 (2002)