An impasse is reached when both management and the union stand firm on major issues in a proposed contract and will not budge from their positions. The National Labor Relations Board enforces federal laws that deal with issues of labor/management disputes, including contract negotiations that deteriorate to the point of impasse.
Determining an Impasse
Once a union has been certified to represent a company’s workforce, the company is legally bound by the National Labor Relations Act to meet with the union at reasonable times and to bargain in good faith. However, neither side is mandated to make concessions. Though there are clear federal laws regarding impasses, the determination of an impasse has often been decided in court. To determine if the union and management are at an impasse, the NLRB or the courts may examine such exigencies as the length of the negotiations, the bargaining histories of each party, rejection of a final offer, the importance of the issues creating deadlock and if the negotiations have truly been in good faith from both sides.
Fact-finding is a legally mandated procedure in the process of determining an impasse. Once the negotiations are deadlocked, a neutral entity is chosen and paid for by both parties to investigate whether an impasse truly exists. If the neutral entity finds there is genuine impasse, he issues a report to both sides, 10 days after which the report can be made public. Both parties then have 20 days to reach an agreement. If there is no agreement, the negotiations go to another fact finder or “super conciliator.” If the fact finder is unsuccessful in achieving a deal, he issues a written recommendation to the parties. Ten days later, the recommendation is made public.
After notice of the impasse has been given to the Federal Mediation and Conciliation Service (FMCS) and a 60-day “cooling off” period has elapsed, the two sides are not required to meet if both sides continue to offer the same concessions. After this period, the employer is allowed to lockout his employees, and the employees are allowed to strike. The employer is not allowed to fire the workers but may hire permanent replacements. However, even if the employer hires permanent replacement workers, the strikers are still considered employees. If the strikers offer to return to work without condition, they must be given preference in hiring. Locked-out employees or employees striking because of unfair labor practices may not be replaced permanently.
Airline and Railroad Industries
When talks between a union and airline or railroad employers break down, the National Mediation Board (NMB) steps in. It may require the parties to continue negotiating or declare an impasse. An impasse is declared by the NMB after its offer of binding arbitration of the dispute is turned down, and it indicates that its efforts at mediation have come up empty. The union and management are then required to keep working together under the old contract’s conditions for 30 days. If the president fails during that time to seat an emergency board, the parties are free to strike or hire replacements.