EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS – Other

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Supposals—typically “what-if” ideas that a negotiator puts forward to test the waters, while acknowledging that the negotiator does not currently have authority and would need to obtain authority from the principal—are not inherently lawful or unlawful; their legality depends on whether they are part of a tactic that constitutes either per se bad faith bargaining or constitutes an indicator of bad faith under the totality test. The facts here presented the most extreme possible use of supposals: Alliance chose to bargain using supposals only, with no proposals. That was very different from the more typical approach in which a party has already made actual proposals but, seeing no agreement, uses a supposal discussion to learn what types of solutions are worth considering and what issues to raise with the party’s principal. Alliance’s non-standard use of supposals amounted to a refusal to make proposals, which was a fully independent, alternative ground for finding that its conduct constituted a per se violation. (pp. 17, 28-29)