Thankfully employers are not required to negotiate until they collapse on the treadmill of collective bargaining. When irreconcilable differences exist between the union and the company – after full, good faith negotiations – the law recognizes that an impasse has been reached. The National Labor Relations Board has defined impasse “as the point in time of negotiations when the parties are warranted in assuming that further bargaining would be futile . . . Both parties must believe they are at the end of their rope.”
That “both parties” part has tripped up many unseasoned labor lawyers and companies who negotiate their own union contract. You see, they typically believe that they are at impasse long before the law allows them to be at impasse. There is no set number of bargaining sessions, no hours of table time, no percent of tentative agreements that must be satisfied before negotiations are at an impasse. Rather, impasse happens when impasse happens.
For example, I was once involved in an impasse situation after 12 bargaining sessions in a 2-month period when the company and union could not agree on a reduction in wages and benefits. Another impasse did not occur until well over a year of bargaining and several dozen bargaining sessions. We remained far apart and neither side had any new proposals to make beyond what each side had already rejected. To my surprise, the union did not make even the smallest modified proposal in an effort to break the impasse. Had it done so, the company would not have been allowed to implement its last, best, and final proposal.
The Board considers many factors when determining whether impasse has been reached. These include:
Fluidity of position
Statements or understandings of the parties concerning impasse
Union animus evidenced by prior or concurrent events
The nature and importance of issues and the extent of difference or opposition
Bargaining history between the parties
Demonstrated willingness to consider the issue further
Number and duration of bargaining sessions
Employers must remember that when an impasse is reached, the duty to bargain is suspended but not terminated. Changed circumstances that renew the possibility of productive bargaining may break an impasse. Companies should consult with their labor counsel before declaring impasse, since premature termination of bargaining is a very serious unfair labor practice.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.