Impasse in Bargaining
During the collective bargaining process, when parties fail to reach agreements about the terms and conditions of employment, either side can typically make it known that they have reached an impasse, signaling that they are unable to resolve their differences on their own. When collective bargaining negotiations reach an impasse, there are three primary methods used to facilitate the resolution of disagreements. These formal methods of dispute negotiation include mediation, fact-finding, and arbitration. All three methods of dispute negotiation, described in this entry, are typically mandated by state statute.
The formal grievance resolution process of mediation involves the use of neutral third-party mediators who work closely with the parties in order to facilitate an agreement. Individual mediators are usually chosen either by state labor relations boards or through the mutual agreement of local school boards and the bargaining representatives of their employees. Mediators’ recommendations are ordinarily not disclosed to the public. While the legal authority of mediators is limited, a number of states require that the parties must exhaust formal mediation efforts before they may proceed to fact-finding, arbitration, or the termination of bargaining altogether.
The second method of dispute resolution adopted when an impasse in bargaining has occurred is factfinding or advisory arbitration. Fact-finding requires the use of a neutral, third-party intermediary called the fact finder. Similar to mediators, fact finders are chosen by either state labor relations boards or through the mutual agreement of the parties to the bargaining agreement. Fact finders are legally empowered to conduct hearings and collect evidence from all parties associated with the bargaining agreement as well as any other, relevant outside sources. While the recommendations put forth by fact finders are not legally binding on the parties to the agreement, their reports are usually made available to the public and in some cases act as a catalyst for the resolution of a dispute.
The third method of dispute resolution when an impasse arises in bargaining is arbitration. In the United States, there is a strong inclination within the legal community to use arbitration as an effective means of setting labor related disputes. This public policy of favoring arbitration was developed in a set of three famous U.S. Supreme Court labor cases: United Steelworkers of America v. American Manufacturing Company (1960), United Steelworkers of America v. Warrior and Gulf Navigation Company (1960), and United Steelworkers of America v. Enterprise Wheel and Car Company (1960). These three Court cases have been collectively referred to as the steelworkers’ trilogy, demonstrating the legal connection between federal labor law and state collective bargaining law. As with mediation and factfinding, arbitrators are selected by either state labor relations boards or through the mutual agreement of the parties to the dispute. However, unlike mediators or fact-finders, arbitrators’ decisions are legally binding on all parties to the agreement.
If school boards and the bargaining representatives of their employees ultimately fail to reach agreements after exhausting the dispute negotiation remedies of mediation, fact-finding, and arbitration, most states require that they maintain the terms and conditions of the prior collective bargaining agreement. Additionally, if school boards and unions have exhausted all the methods of dispute negotiation, many states allow school boards the opportunity to implement their last best offer as a unilateral contract.
Kevin P. Brady
- Brady, K. P. (2007). Bargaining. In C. J. Russo (Ed.), The yearbook of education law: 2007 (pp. 101–110). Dayton, OH: Education Law Association.
- Brady, K. P. (2006). Collective bargaining. In C. J. Russo & R. D. Mawdsley (Eds.), Education law. New York: Law Journal Press.
- Dodd, V. J. (2003). Practical education law for the twentyfirst century. Durham, NC: Carolina Academic Press.
- United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564 (1960).
- United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593 (1960).
- United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574 (1960).