The Impact of a Bargaining Impasse

Under the National Labor Relations Act, union members have the right to collectively bargain with their employer. However, what happens when these negotiations reach a point of seemingly no return? 

When both the union and the employer are engaged in good faith negotiations, yet there are differences that cannot be reconciled, then both parties are in what is called a bargaining impasse.

What Makes an Impasse?

Whether or not bargaining is at an impasse is a legal question decided, when contested, based on the consideration of a number of factors. In general, and preliminarily, the negotiations need to have been going on for a substantial period of time. According to the National Labor Relations Board (NLRB), as noted in A.M.F. Bowling Co., an impasse is defined as when there is a point in negotiations when “the parties are warranted in assuming that further bargaining would be futile.” 

One of the key aspects of a bargaining impasse is that “good faith” negotiations must have taken place. The parties cannot simply have a few meetings and then the employer declares that they are at an impasse. Rather, there needs to be sustained negotiations where neither side shows signs of flexibility. 

Also, when evaluating whether parties are at an impasse, the issue relates to whether you are at an impasse on everything or a single issue. For instance, you may be bargaining wages, hours, and health insurance. If you are at loggerheads on health insurance, yet the other issues are still in negotiation, that generally does not mean there is an impasse. Typically, when there is a hold-up on a single issue, unilateral action is not permissible by the employer. However, if this single issue causes a breakdown of the entire negotiations, then unilateral action may be allowed.

Other Factors to Consider

What else is considered by the NLRB when determining whether or not there is a bargaining impasse? The Board likely will look at the bargaining history between the two parties. Additionally, the Board may also consider the willingness of the parties to continue the bargaining process, as well as how much time has passed in between bargaining discussions. From the statements and actions of the parties, evaluating the gap between them, the Board will look to every relevant aspect of the negotiations to make a determination if an impasse is present.

Why Impasses Are Important

When a bargaining impasse occurs, it has a significant impact on what options the employer has. Why is an impasse important? If an impasse is present, then the employer is permitted to make unilateral changes that are consistent with what it offered to the union – called implementation. For instance, an employer could implement its last wage offer to the union at bargaining. It should be noted that an impasse on just one issue typically does not grant the employer to act unilaterally. 

If there is an impasse, it does not mean that the parties do not have a duty to bargain. The duty to bargain remains intact during the course of a collective bargaining agreement unless their duty has been either waived or discharged. For instance, there may be language within a collective bargaining agreement that states that the union does not need to negotiate on matters involving assignments and scheduling of work. And it is important to keep in mind that changing factors (such as the Union asking for a clarification of the employer’s offer) can end an impasse and require the parties to go back to the bargaining table. 

So, parties do not need to constantly negotiate when there is clearly no end in sight. That is why impasses exist. It is the point where negotiations have reached an obvious stalemate, and there is no conceivable end and present resolution in sight. But it represents ​a critical moment for the parties to reassess their positions, consider alternatives, and explore new options to break the deadlock.