## Facts

- A small employer, Jake and Josephine Lipsitz, operated American Sanitary Wipers Company.
- Production employees selected the Retail, Wholesale and Department Store Union, AFL–CIO as their certified bargaining representative.
- The parties negotiated for a successor collective-bargaining agreement, with bargaining focused on wages and other economic benefits.
- The employer attended bargaining sessions and engaged in discussions but maintained a firm position against any wage or benefit changes that would increase operating costs.
- Negotiations reached an impasse without movement on economic terms.
- The union filed an unfair labor practice charge alleging the employer refused to bargain in good faith in violation of NLRA § 8(a)(5) and derivatively § 8(a)(1).
- A Trial Examiner found that, despite procedural compliance, the employer’s absolute resistance on cost-increasing proposals showed a lack of good-faith bargaining and recommended finding a violation.
- The Board majority declined to adopt the Trial Examiner’s conclusion; one Board member dissented.

## Issues

1. Whether an employer violates NLRA § 8(a)(5) by maintaining its existing economic terms and refusing all cost-increasing concessions while otherwise meeting and negotiating with the union.
2. Whether a rigid bargaining position on wages and benefits, without other indicia of sham negotiations, permits an inference of bad-faith bargaining under a totality-of-conduct analysis.

## Decision

- The Board (majority) dismissed the complaint and found no violation of § 8(a)(5) or § 8(a)(1) on this record.
- The majority held that steadfast refusal to make economic concessions, standing alone, did not establish bad-faith bargaining absent additional evidence of surface bargaining or a closed mind.
- The Board declined to treat the duty to bargain as a duty to agree to the union’s proposals or to make concessions.
- A dissenting member would have adopted the Trial Examiner’s finding that the employer’s unyielding resistance on economic issues constituted bad-faith bargaining and a statutory violation.

## Legal Principles

- The duty to bargain in good faith under § 8(a)(5) is assessed under the totality of a party’s bargaining conduct.
- The NLRA does not compel either party to agree to any proposal or require the making of concessions; firm or intransigent positions may be lawful hard bargaining.
- Bad-faith (surface) bargaining requires evidence that a party is merely going through bargaining formalities without a genuine intent to reach agreement; refusal to move on economics alone is generally insufficient without additional indicia.

## Conclusion

The NLRB concluded that an employer’s unwavering refusal to accept wage or benefit increases, by itself, does not prove a refusal to bargain in good faith when the employer otherwise participates in negotiations and the record lacks other evidence of sham bargaining.


Lipsitz (Am. Sanitary Wipers Co.), 157 N.L.R.B. 1092 (1966)