[3] The entire history of the negotiations must be assessed, including the party's intent, efforts made toward reaching an agreement, and any behavior which may be seen as inhibiting the bargaining process.
[7] Under US law, it is an unfair labor practice and a breach of the duty to bargain in good faith.
[9] In New Zealand, surface bargaining is a violation of the Employment Relations Act 2000 (as amended).
[11] US courts have held that "hard bargaining" (taking a firmly held and well-explained position), failing to make a concessionor failing to reach an agreement do not constitute surface bargaining under federal labor law.
[12] Additional evidence, such as away-from-the-table statements or behavior, is needed to prove surface bargaining in the US.