Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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 [1988].) 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 [1967].) 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:

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.