The PERColator Podcast
The PERColator Podcast
Episode 51: The Doctrines of Impasse and Implementation
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A detailed review of the doctrines of impasse and implementation at the intersection of the duty to bargain in good faith and seemingly endless negotiations.
Cases referenced in the episode:
We're at impasse. Three words that few parties want to say or hear during the collective bargaining process, but a reality that most negotiators will face at various times at the bargaining table. The impasse doctrine surfaces a tension that exists in the collective bargaining statutes. On the one hand, there is an ever present duty requiring parties to bargain in good faith. On the other hand, collective bargaining is not meant to be an endless exercise in futility. Impasse can bring finality, at least temporarily, to a negotiation, but its legal status in the party's bargain is often more tenuous than most realize, and the consequences from such a declaration are often unclear. Please join your PERColator co-host, Chris Casillas and Loyd Williford in this final episode of our series on the duty to bargain in good faith and what that means for negotiators in Washington State public sector labor relations. In our third episode of the series, Chris and Lloyd take a deep dive into the doctrine of impasse, examining its legal parameters, as well as the ability of an employer to implement its final offer after reaching a lawful impasse. Importantly, we also discuss strategies and techniques that you as a negotiator can deploy to avoid hitting an impasse, thus ensuring that any collective bargaining agreement is the result of mutual consent. Hello and welcome to the PERColator podcast. Great to be back with you. My name is Chris Casillas, one of the negotiation project founders here at PERC, and I am joined once again by my dutiful and excellent partner in crime here, so to speak. Loyd Wilford, Loyd, how you doing today?
Loyd Willaford:I am doing well.
Chris Casillas:Thanks for continuing to work on this series. We're back to talk about good faith bargaining and its impact on the bargaining process. And if you've been kind of following along with our series here, we've kind of worked through some different topics related to good faith bargaining, including the duty to provide information and kind of the general duty to meet and bargain in good faith. And today we're going to kind of continue that series with a closer look at the doctrines of impasse and implementation, and again, their connection to the good faith bargaining obligation. So as we've done with this series, kind of want to start with just a little bit of a overview of the the law and the lay of the land here, so to speak, once again, as as we've stated throughout this series, this is not intended as legal advice. Any specific questions—our best advice there is to seek out legal counsel on these issues, but it is a fairly well developed area in PERC case law, and we wanted to kind of just use that case law as a foundation for our discussion here, and then—you know—eventually, kind of transitioning to how this impacts you as a negotiator, and kind of thinking about some of those issues. So to start here with just kind of the concept of impasse in the collective bargaining space. We kind of begin with this, this tension that exists in the law between the fact that both parties have a duty to bargain in good faith. That duty to bargain in good faith is kind of ever present in the relationship. But on the other hand, there's kind of this recognition that bargaining is not necessarily an exercise in futility. You know, it doesn't—it's not meant to go on forever—continue to kind of bargain, just for the fun of it, so to speak. And so while we're not there, to kind of just continue this process for forever, part of that general obligation in the law is to eventually try and reach an agreement on those terms and conditions of employment. And so this the impasse doctrine, kind of grows out of that tension. And with that, there's kind of this recognition that there are circumstances in which a party might be able to actually lawfully conclude that further negotiations just aren't going to result in an agreement. And that's where we get to this concept of impasse. And I should say here—kind of impasse is not necessarily kind of a singular moment—we can hit impasses at multiple points, and a lot of times when we hit those, we find ways forward. And that's necessary both to continue to try and reach an agreement, but also to recognize the reality that circumstances change, and impasse is not like the be all and end all. It's not a final determination in most circumstances. It's just kind of a temporary hiatus or break in the negotiation process, but usually over the course of time or through change in circumstances, those impasses will be broken and the parties can continue to move forward. And importantly, kind of recognizing there that that duty to bargain in good faith remains ever present—as I've said—and so when those circumstances do change, or those impasses are broken, there is this continuing obligation to move forward with trying to reach an agreement on those issues that you are stuck with, or the agreement as a whole. Now, when there is kind of a genuine impasse, and the party determines that kind of—no, they're not making any progress, they're stuck there—there is kind of this moment realistically at the table where you might kind of declare that there's an impasse—that the parties are stuck. But what our case law makes clear is that ultimately the existence of an impasse is a legal determination that is made by the Commission—by this agency. It's not determined based exclusively on what the parties think about the situation and statements that they've made. There really has to be kind of a irreconcilable difference between the parties that the Commission determines to be, in fact, a kind of a legal impasse—but if that, if that kind of standard is met that does potentially bring some different outcomes and ways forward, and Loyd will talk about that in a minute with the implementation doctrine. But again, that that actual legal determination is something that the agency ultimately has jurisdiction to determine. Now, if there is a is a true impasse, and that question comes to the agency to resolve through the unfair labor practice (ULP) process, the burden is on the party declaring the impasse to show that there's really no realistic prospect for the bargaining to continue forward. And like many of our doctrines, there's not kind of a clear bright line that exists for this where we can say, "You know, up until this point, there isn't an impasse, and then beyond that, there is." That would be nice if it was so clean, but unfortunately, the reality of collective bargaining is it's a lot more colorful and complicated than that, and so the commission has historically used kind of, what we call this five factor test in analyzing whether, in fact, a party has really met its burden to show that an impasse exists. And those factors include looking at the bargaining history between the parties, their overall good faith in the negotiation process, how long negotiations have been underway, the significance or importance of the issues that remain in disagreement, and then finally—kind of—what each party's understanding was as to the state of negotiations. And so it's—kind of, I would say—a more holistic review of the entire process, looking at these different elements to ultimately determine whether there, as I said before, there's really no realistic prospect for the parties to be able to continue with negotiating on those subjects of bargaining. And so if that's met—if that test is satisfied—then it has some important implications, and that's where we turn, potentially, to this concept and doctrine of implementation. So Loyd, you want to kind of lay that out a little bit more and talk about perhaps some cases where we've seen parties implement on mandatory subjects.
Loyd Willaford:Yeah—yeah, thanks, Chris. And I appreciate union how cause you to kind of reassess where you were at three months limitations points, and just because you hit actually in on where some of those that's a great overview, kind of of the sort of impasse topic. And, you know, and I'm sure many, many people, you know, when we immediately asked about the, "Well, what happens if we don't get to an agreement?" And you know, what I'm going to describe now is the potential for what can happen, and kind of what—what's what's kind of legally available. And I would preface all this by saying that implementation is very is rare. Most parties on—you know, I meant by rare. I mean it doesn't happen all that often. And sometimes it happens, and we never see it, because the parties, for whatever reason, and they sort of tacitly agree sometimes that, "Hey, you know, sometimes it's like, you know." And again, we're talking about so to speak. And you know, when you're constantly in bargaining
Chris Casillas:No, I think that's a great implementation. We're talking about the employer here implementing a unilateral change after you bargain and pass, and that's frustrating, and it can frustrate your constituents as here it's to to mandatory subject of bargaining. If it's a permissive subject, it's not a unilateral change, and you know, well for not getting an agreement, employers can do things that— you know—if they're not mandated a bargain about it, and they make a decision to implement a the implementation risks of the impacts to the broader change, and it was a permissive subject of bargaining that's not relationship, the fact that it's probably going to draw an unfair going to be an implementation issue. Now, there might be effects bargaining or things like that that would would come labor practice charge, and you still have to keep bargaining, up, that we might see in terms of unfair legal practice, but it doesn't fall into this category of implementation. The other important caveat here for implementation is we're only necessary for the parties to find a way to come back to the talking about non interest arbitration eligible groups, if for for the bargaining units that have interest arbitration, this implementation is not a thing if a a party in an interest argument wants to to make a unilateral change and table and find a new way forward. I also they think that are impasse, there is an impasse resolution procedure called interest arbitration that you are of topic, thinking about impasses and implementation that required to use. So that's another important caveat. So when can a an employer implement—they can implement. We used to call this the 123 Rule, because that was the number of really brings to the to kind of Top of Mind here—as a negotiator the statute in the legislature, and its infinite wisdom has renumbered lots of statutes, including an RCW 41.56 it's now 41.56.310, the 310 Rule doesn't sound so great as 123. So when can—so under our RCW 41.56, an employer can implement when ago or nine months ago—so important to kind of always be there's a lawful impasse. And Chris just talked about, what does that mean? What is an impasse. if it has been one year coming back to that data. And then, you know, to give us a since the CBA has expired. So if you don't have a CBA, that's your CBA—they're going to treat that as technically expired. And I'm going to talk about actually, one of the cases I'm going to talk about is, is a first contract case where there was implementation. And basically, if that's satisfied, so you, you've your contracts been expired for a year, there is a lawful impasse, then the employer can implement changes that are not different or greater than the changes that they had proposed. So this is also important, and it makes sense, right? Because if you hadn't talked about this stuff, then how could you be an impasse? If it's a brand new an impasse doesn't mean you're going to be stuck there forever. thing, there's no way to know whether you bargained in good faith about it. Bargained to impasse about it. So it has to be basically topics that have, that have been talked about at the bargaining table, and that the whatever the position the And I think we've actually done a employer has been taking is not more than what they've been doing at the table. And essentially, kind of, we like to parameters may be. And the simple passage of time, too, can think of it usually as they're sort of implementing. Maybe you—the way this would typically look like, is like a last, best and final and you would maybe say, hey, you know, this is where we're at. And if we don't get an agreement, you know, we're going to consider implementing, and that's a—those are kind of code words for,"Hey, we need to maybe think about how we're going to get done here" and at that. You know, employers can be really reticent to do that because of this next piece, which is that you have to keep bargaining final a little plug for PERC—you know—the mediation process is about all other mandatory subjects. In other words, you you don't get to implement a whole contract. You can only implement the things that you're at impasse on, and so you might be at impasse on some things and not others in your negotiation, and you can't implement things on things that you're not an impasse on. So it becomes really kind of problematic. Also, just because—so after implementation, you still have an obligation to continue bargaining in good faith, but you can't just say,"Oh, we're implementing. We're done." And I'm going to talk about a case here in a second where that exact same thing happened. They implemented they were lawful impasse, actually in that and maybe I'll just talk about it now. In that case there, the union filed the ULP, the examiner found that they were at impasse, and nobody appealed it. And then the union said, oh, you know, we changed our mind. We really want to keep talking about this. And the employer said, Oh no, we've already implemented that ship has sailed. We're going to keep doing things the same. Union filed another ULP, and they won that ULP because the commission said circumstances had changed. The union had demonstrated a willingness to move in the employer's direction, and now you now have a bar a duty to bargain over that. So that's another reason why, you know, employers can be reticent to implement in outside of kind of, what I might think of as an extreme situation—so maybe I'll talk about one of those. Now, the case that I mentioned earlier about an employer who implemented on a first contract. So this is a 2013 case, Yakima Valley Community College, they started negotiating, they, they petition for representation in 2007, they negotiated. Tried to negotiate a contract for four years. The, as some of you may know, the history here, the Great Recession happens. The state legislature PAC starts looking at hacking budgets with a 3% cut. They actually pass a budget with a 3% cut, and they're still negotiating. And the college is saying, "We have to, we have to, you know, we implement this." and they said,"Oh, we want to keep negotiating in the context of the all this other stuff." The employer actually implements a 3% cut union files, a ULP, and the Commission says you were not an impasse. Even though this looks like an emergency. It looks like, you know, yes, these cuts, you're not in an impasse because you there wasn't alternatives. You weren't willing to really talk about alternatives, and nobody, you know, there wasn't this, this kind of good faith bargaining about how would this look like? Look like? You just said, Oh, you assumed, well, because we got this budget that says we got a 3% cut, we have to do something. And you're not willing to agree to what we want to we can just implement it. And the commission said, "No, you can't do that." So, I mean, that's, I think, a good example of the difficulty here—of implementation. And again, you know, back to—yes, that you can be, you can be an impasse on some things and not others, and I think that's also really crucial. And kind of it's all this kind of context specific, where are the parties at? And the the five factor test that Chris you talked about, is kind of a key here. And you would think you've been bargained for four years that might be, and a commission said, yes, that factor does definitely weigh in after four years if you haven't gotten an agreement. But the thing is, it wasn't just on that topic like the I think the key factor in that case was the budget stuff was kind of new, right? I mean, it'd been coming, and then when they passed this 3% cut. Now it's like real and concrete. And just because you're in a real concrete situation, it doesn't mean you don't have a duty to bargain over a mandatory subject, and you got to do it to impasse. So and again. Back to the thing I said before about—you know—the other case that I mentioned where the—if people are curious about it—that's a Vancouver School District. The initial decision from the examiners 2012 and then the commission decision about—well, things have changed, was in 2013—that you have to impasse continues and you know, and you still, if you're gonna things change now you have a duty to come back and bargain, even though you've already implemented already implemented, you know, it basically is anything that makes it look like it could get to an agreement. So that's kind of the implementation piece. Do you have anything to add to that Chris? also a really great way to help you kind of move through those impasses, and that kind of shift in forum and bringing in a neutral third party can also be a valuable tool for the party is to kind of think about how they break those impasses. So I want to finish there in terms of kind of thinking about our strategies here as negotiators, and how this kind of legal framework that overhangs your entire process as a labor negotiator kind of impacts some of your strategic approaches in in how you come to the table, would any kind of final thoughts or kind of reflections on any of that from your end?
Loyd Willaford:Yeah, I guess I would just end on also the topic of mediation. I mean, typically you are—maybe, if you're not technically at impasse—probably close by the time you get to see a meteor, and it's probably a good thing, general—just generally speaking—to engage a mediator again— to plug PERC here, we're free—coming highlighting back to the risks of other strategies, things like implementation. It carries some litigation risk. As Chris and I were talking, we're not—we were talking about, you know, commission decisions. There are some exam or decisions—I referenced one of them—where, you know, we said, "Yeah, the you word impasse, it was okay to implement," but in terms of commission decisions, saying that [are] few and far between, but we couldn't actually think of one right off the top of our heads, as we were we were discussing this, and on the strike piece, Chris diplomatically glossed over that, but I am going to hit that directly. There are serious, serious legal risks. This is not the private sector. We in fact, we have a statute that says there is no affirmative right. Now, does that mean that there's no—it's a legal kind of ambiguous whole. And yes, we do get strikes periodically, but—you know—recognizing that there are serious risks, and—you know—to think about those things, not just the legal risk of some courts going to order you back to work or a union if they damage somebody, damage an employer. You know, you see these kinds of things sometimes in the private sector too, in terms of other kinds of strikes. So there is a significant difference between the private sector and the public sector in terms of strikes, and I think it's important to sort of highlight that as a—you know, impasse resolution—and I'll just you know not speaking for PERC, speaking for myself— that it creates a kind of a problematic dynamic that we don't have this the same kind of—you have implementation, but you don't have really a effective kind of of strike mechanism, and so there's a little bit of asymmetry of power dynamics, which I think can create difficulties that—And just to recognize that upfront as you're preparing people for this. This is the process that we have and to you know, employ some of these other strategies. And one of the other strategies that we sometimes see is, in the public sector, you have a right to petition, and we sometimes see people exercise that as a means of trying to resolve impasse. So that's kind of my—kind of, you know—wrapping up thoughts on this topic. Thanks for the discussion, Chris. Really appreciate it.
Chris Casillas:Yeah, all good ideas. Loyd, and appreciate that—filling in some of those gaps in what I said and offering some other suggestions there. So yeah, I think just to kind of hit home that point of recognizing,—I think, as you said— those limitations and where as a negotiator, we can move and what strategies you can deploy to kind of help you through these, challenging moments, which I think most negotiators will hit, and probably multiple times in any particular bargain, but there are, there are pathways forward. So with that in mind, thanks very much for the conversation. Lloyd. Hope everyone is able to take a few nuggets of information and ideas out of this, and we will see you next time. Thank you.
Loyd Willaford:Thanks all!
