EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES – Exploding Offers

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A party cannot in good faith make an exploding proposal unless it can adequately explain a legitimate basis for doing so. When a party issues an exploding offer without an adequate explanation as to why its bargaining position should become less generous on a given date in the future, it preemptively indicates its intent to engage in regressive bargaining, imposes its own ground rule and deadline, evidences unlawful inflexibility, and manifests a take-it-or-leave-it attitude. Although an exploding offer is not a per se violation, a bargaining party evidences bad faith under the totality of conduct test if it does not adequately justify a threatened change in position that is inherent in an exploding offer. (p. 18.)