Under Michigan law, impasse is the point at which the positions of the parties have become so entrenched on mandatory subjects that additional bargaining would be unproductive. Whether an impasse exists may be recognized either mutually by the school board and the union or unilaterally by the school board. Until the point of impasse, even if a collective bargaining agreement has expired, neither the school board nor an education union is permitted to change the status quo. Moreover, even submitting a dispute for compulsory arbitration does not automatically mean that the parties have reached an impasse.
The National Labor Relations Board describes impasse in the following manner:
"A genuine impasse in negotiations is synonymous with a deadlock: The parties have discussed a subject or subjects in good faith, and, despite their best efforts to achieve agreement with respect to such, neither party is willing to move from its respective positions."
If contractual negotiations have reached an impasse, and if the prior bargaining agreement has already expired, the school board is free to implement its final contractual offer. As such, impasse remains a last resort.
Connie Gillette: "For impasse to be supported in a MERC hearing, you really must have reached the point beyond which you cannot move, and you must have been there with no movement over a long period of time. Another means of declaring impasse is if there is ‘financial exigency,’ meaning that your finances are at a critical point and you are at risk of financial failure unless a change is made quickly."
Donald Wheaton: "Should you get to impasse with any of your unions and impose any offers, you must be prepared to commit resources for legal fees and suffer the inevitable criticism from union members for having done so. Yet unions have virtually unlimited budgets for legal services compared to what you have."
Where there is mutual agreement by the school board and the union that an impasse has been reached, PERA provides a special mediation procedure to aid in resolving the dispute. In essence, this procedure calls for a final attempt at mediation. If this final mediation is sought, both the school board and the union are required to select one person to represent their respective interests. These two representatives then select a neutral third party to act as the mediator, and all three have 30 days to mutually agree to a settlement that breaks the impasse. If a settlement is reached, it is presented to the school board and union for approval.
If either the school board or the union fails to ratify a recommended settlement within the 30-day window, then "the public school employer may implement unilaterally its last offer of settlement made before the impasse occurred." However, this section "does not limit or otherwise affect a public school employer’s ability to unilaterally implement all or part of its bargaining position as otherwise provided by law." The advantage of pursuing impasse mediation is that it lessens the likelihood that an unfair labor practice charge could be sustained against the school board.
When a school board declares an impasse without agreement from the union, the issue becomes more complicated. The school board must be careful at this point, or it will likely become the subject of an unfair labor practice charge of violating the duty of good faith. Deciding whether an impasse has actually occurred is somewhat subjective. Thus, when impasse is challenged, MERC must necessarily decide on a case-by-case basis whether that point has indeed been reached.
Lynn Parrish: "As I tell the board, if we don’t resolve the matter and we’re going to go to impasse, the board might as well get ready, because they’re going to be hit with an unfair labor practice charge. They’re going to be told terrible things about me. I, as their chief negotiator, am guaranteed to be charged with not negotiating in good faith, because that’s how the game is played. I try to prepare the board for that, so they’re not taken by surprise. We do negotiate in good faith. That’s my obligation, and if I’m not doing that, I shouldn’t be working for this board of education. But just because we do it doesn’t mean we won’t be charged to the contrary."
Frank Garcia on what school boards should expect when they declare impasse: "Expect well-organized and thought-out offensive activities from your local EA and the MEA. We even had a couple of NEA representatives in the area for a short period. The board and I have been the subject of a well-organized letter, phone call and e-mail campaign by the EA leadership. A strike vote was called for by the [Holland Education Association] leadership and rejected by the membership. We have been the subject of a harmful and demeaning parable written by a high school counselor. I and a board member even received a hateful Christmas card. While these activities have been the doing of a small percentage of the EA members, to the community it could be perceived as an endorsement by the whole membership. My advice would be, Don’t be surprised by anything: Expect the unexpected. Expect a long and difficult process; stay strong and united; and maintain constant dialogue among each other."
In conjunction with MERC’s analysis, a school board must be able to show that it has bargained in good faith throughout the process. This good faith may be evidenced by the number and quality of negotiations, the amount of time between the offer and the impasse or the presence of a mediator. An aggrieved union will almost certainly claim that the imposition of new conditions did not involve good faith.[vii]
After an impasse is declared, a school board may implement its final contractual offer. But the school board is prohibited from actually imposing its unilateral changes if, after the board declares an impasse, the union first requests mediation and fact finding. This request, in effect, can set up a "race" between a union and the school board.
The race commences the moment the board declares an impasse. The school board "wins" if it can actually implement its final offer before the union, by seeking additional mediation, is able to stop the board. To avoid this race, MERC has declared that to block the board’s implementation of its final offer, the union must formally file a petition requesting mediation before the employer announces its plans to implement its final offer. Accordingly, if the school board announces that an impasse has been reached and a final offer is to be forthcoming before the union files for additional mediation, the board is allowed to implement its final offer so long as it does so within a reasonable time.
Impasse is not the end of collective bargaining. The parties are still obligated to seek an acceptable agreement, even when operating under impasse-imposed terms. Ultimately, the nature of impasse and unilateral implementation of terms often results in new progress in contract talks. This is due to the intense pressure that develops in impasse situations. For example, in the private sector, it is at the point of impasse that unions call strikes, often resulting in the pressure that forces an employer to capitulate. While strikes are not legal in the public sector and can result in substantial fines, a union will apply as much pressure as legally possible on a school board, including media campaigns and recall efforts. The resulting pressure on both sides — as well as on parents — can provide a breakthrough leading to an agreement.
[vii] This is precisely what happened in the fall of 2005 to the board of education for the Lakeview Public Schools in St. Clair Shores.