Impasse is the equivalent of "obscenity" in the National Labor Relations Act -- difficult to define, but you know it when you see it. The determination of whether impasse exists is a matter of judgment based on an evaluation against often imprecise standards: the circumstances, bargaining sessions, open issues, statements, possible strikes, union animus and actions inconsistent with impasse.
By Jeffrey D. Pollack|March 28, 2003 at 12:00 AM
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Professing his inability to describe “obscenity,” U.S. Supreme Court Justice Potter Stewart authored the famous line, “I don’t know how to define it, but I know it when I see it.” Impasse is the equivalent of “obscenity” in the National Labor Relations Act: whether impasse exists is “a matter of judgment based on an evaluation of the parties’ bargaining history against standards that are imprecise at best.” ( Laborers Trust Fund v. Advanced Lightweight Concrete Co., Inc., 484 U.S. 539, 552 .) SIGNIFICANCE OF IMPASSE Ordinarily, an employer who unilaterally changes terms or conditions of employment violates the act. After bargaining to impasse, however, an employer may implement changes “reasonably comprehended” within its pre-impasse proposals. ( Brown v. Pro Football, Inc., 518 U.S. 231, 238 (1996); Taft Broadcasting Co., 163 NLRB 475, 478 .) Unilaterally implemented changes may not differ substantially from those proposed during negotiations. Nevertheless, an “employer need not implement all of its pre-impasse proposals, but the changes must be in line with or no more favorable than those offered prior to impasse … which the union has rejected.” ( Emhart Industries v. NLRB, 907 F.2d 372, 376 [2d Cir. 1990].) In Telescope Casual Furniture, 326 NLRB No. 60 (1998), the employer stated that if the union did not accept its final offer, it would implement a less favorable alternative offer. When the union rejected the final offer, the employer implemented the alternative one. The board found the employer’s action “completely comprehended” by the final offer. In contrast, in NLRB v. Plainville Ready Mix, 44 F.3d 1320 (6th Cir. 1995), the company eliminated incentive and profit-sharing plans as proposed, but did not implement proposed wage increases. The court affirmed the board’s finding of a violation: In cases involving the implementation of only a portion or portions of the final proposal … the employers did not implement only the negative portions of a separate component of the final proposal, such as a wage plan … but implemented, for example, the wage plan, but not the benefit plan. In other words … portions of the final offer that constituted comprehensive, integrated entities. An employer cannot splinter off or fragment proposals presented as a comprehensive system in such a way that the portions implemented are not reasonably comprehended as unrelated in the employer’s previous offers. Otherwise, the character of the implemented plan takes on a different meaning (increased cost) from that offered … (increased costs and benefits). Even when impasse exists, an employer may not unilaterally implement terms that are “contract-bound’ or involve a statutorily protected right. Nor may the employer implement a proposal that gives it too much discretion in matters of great significance. For example, in McClatchy Newspapers, Inc., 321 NLRB No. 174, 153 LRRM 1137, 1141 (1996), the board ruled the employer unlawfully implemented a merit-pay proposal because it retained unchecked discretion to grant increases “without notice to or participation by” the union. Noting the proposal contained no objective standards, the board stated, “nothing … precludes an employer from making merit wage determinations if definable and objective procedures and criteria have been negotiated to agreement or to impasse.” ‘DETROIT TYPOGRAPHICAL’ In contrast, in Detroit Typographical Union v. NLRB, 216 F.3d 109, 118 (D.C. Cir. 2000), the court vacated the board’s finding that the employer unlawfully implemented its merit-pay proposal because the employer provided written details, including guaranteed minimums and projected average increases. Moreover, although excluded from arbitration, employees could grieve unsatisfactory increases. The court contrasted McClatchy as “an unusual situation where an employer provided no details at all of its merit pay plan.” In most cases, implementation is not permitted until an overall impasse exists on the agreement as a whole. (Naperville Ready Mix v. NLRB, 242 F.3d 744 [7th Cir. 2001].) Alone among the U.S. Circuit Courts of Appeals, however, the 5th Circuit holds that deadlock on one issue can constitute impasse. The board recognizes two exceptions to the total impasse rule — where unforeseen business exigencies prevent bargaining to impasse, see, e.g., Quality House of Graphics, 336 NLRB No. 40 (2001), or when the union avoids bargaining, see, e.g., Serramonte Oldsmobile, 318 NLRB No. 6 (1995). Inasmuch as employers can unilaterally alter conditions of employment upon impasse — but not before — labor negotiators must recognize the existence (or absence) of impasse. RECOGNIZING IMPASSE The board has “no fixed definition of an impasse … which can be applied mechanically to all factual situations.” (Dallas Gen. Drivers Local Union v. NLRB, 355 F.2d 842, 845 [D.C. Cir. 1966].) Impasse has been described or addressed in a number of ways, including:
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