Mgmt 583
Chapter 12: Impasses and Their
Resolution
Fall 2008
Impasses

An impasse occurs when the parties are
unable to move any further toward a
settlement.


Usually when a bargaining issue falls out side
either party’s tolerance limit (a.k.a. settlement
ranges).
May occur when one party fails to convey enough
information to facilitate a settlement (i.e.,
management does not explain why a work rule
change is important).
Third Party Attempts to Resolve
Impasses



Mediation
Fact-Finding
Interest Arbitration
Must be voluntarily agreed
To by both parties
Mediation

Mediation – a neutral third party is engaged to
get the principals back to the bargaining table.




Relies on persuasion.
Tries to facilitate communications.
May introduce new “solutions”
(recommendations) for parties to consider.
May only recommend, the recommendations are
NOT binding.
Fact-Finding

Fact-Finding - a neutral third party who
studies the issues under dispute, attempt
conciliation, and (if this fails) publishes a
recommendation for settlement.



Use more in the public sector.
Though the recommendation is not binding (as in
mediation) it carries more weight because is
published.
Uses public opinion to force a resolution.
Interest Arbitration

Interest Arbitration - a neutral third party
imposes a settlement.



In most case the arbitrator’s award is binding on
the parties.
Extremely rare in the private sector, but common
in the public sector.
Who wants wage issues determined by a neutral
third party?
When Neutral Third Parties Fail

If alternative dispute resolution fails, the
following tactics are available:

Management




Lockouts.
Shut downs
Outsourcing
Unions



Strikes
Slowdowns
Corporate campaigns
Four types of Strikes




Economic
Unfair Labor Practice
Wildcat
Sympathy
Economic Strikes

Results when there is a failure to agree to
contact terms involving mandatory bargaining
issues.


Strikes over permissive issues is an unlawful
labor practice (Detroit Floor Decorators Union,
136 NLRB 756 (1962)).
Naturally striking over prohibited issues is an
unfair labor practice.
Economic Strikes

Employment rights during economic strikes:
 Unions can fine members for crossing picket lines
(NLRB v. Allis-Chamblers Manfg, 388 U.S. 175
(1967)).
 Striking employees can be punished for:



Picket line violence (Cory Corporation , 84 NLRB
972 (1949)).
Harassment (paint balloons to fire bombings).
Sabotage.
Economic Strikes

Employment rights during economic strikes
(continued):

Employers have the right to maintain operations during a
strike:



Hiring permanent replacements is permitted (NLRB v. McKay
Radio & Telegraph, 304 U.S. 333 (1938)).
Permanent or temporary replacements are the employer’s
discretion.
Striking employees cannot be fired, but can be placed on a recall
roster and return only when an appropriate opening occurs.
Unfair Labor Practice Strikes

The union is protesting a violation of their §7
rights

Examples:



Unilateral amendment of the CBA.
Refusing to bargain.
Employer cannot hire permanent strike
replacements.

Employees return immediately to work upon the
strikes conclusion.
Wildcat Strikes

A breach of the CBA’s no strike/no lockout
clause.


An unauthorized strike.
National union violates the labor code if it sends
strike funds.


Can be sued for actual (not punitive) damages.
Strikers may be disciplined.
Sympathy Strikes

One union goes on strike in support of another
union’s strike.



Actually members of one union refuse to cross the picket
line of another, hence a de facto strike.
Most often both unions work for the same employer.
Sympathy striker are protected under the NorrisLaGuardia Act (Buffalo Forge Co. v. United
Steelworkers, 420 U.S. 397 (1976)).
Actions During a Strike

Union:



Strike vote is taken by the members.
National union approval is required in most
instances.
Picketing is initiated to inform the public about
the strike issues and to encourage them to boycott
the employer’s goods or services.
Types of Picketing


Primary situs - union may picket a primary
employer at his primary place of business.
Ambulatory site - the strike object is
movable. To be lawful the following four
conditions must be met:


The strike object is present on the secondary employer’s
site.
The primary employer continues to engage in normal
business at the common site.
Types of Picketing

Ambulatory site - continued.


The picketing is reasonably close to the strike
object.
The picketing must clearly declare that the
dispute is with the primary, not the secondary,
employer.
Ambulatory Picketing
A
X
X Gate
X
XXX
Moore Dry Dock, 92 NRLB 93 (1950)
Types of Picketing

Common situs - typical to the construction
industry.



How to reduce the affects of sympathy strikes when
employees of the primary employer are working along
side those of secondary employers.
Union cannot picket the entire site.
Reserved gate doctrine (NLRB v. Denver Building Trades
Council, 341 U.S. 675 (1951))
Types of Picketing

Multiple use sites - typical to the retail malls.

How to reduce the affects of strikes a primary
employer in one store in a mall without affecting
neutral secondary employers.


Picket must clearly identify the store against whom
they have a dispute.
Cannot interfere with access to neutral stores.
Other Union Methods to
Pressure Employers

Slowdowns



Working to the rules.
Refusing overtime.
Corporate Campaigns


Identifying and reporting regulatory violations
(OSHA, EPA, etc.).
Publicly distributing damaging information about
the employer.
Employer Responses to Strikes

Shutdowns - wait it out.



Production is lost during the period.
Competitors may get market share.
Continued Operations



Use supervisory & nonproduction personnel.
Automated production facilities.
Strike replacements


Availability is crucial
May cause picket line violence.
Employer Responses to Strikes

Outsource



Preferably a nonunion employer.
May result in the Ally doctrine being invoked.
Lockout - only legal under three
circumstances



Perishable goods (to avoid economic loss).
To preclude whipsawing.
To enhance bargaining position in single employer
bargaining (let the union strike first).
Employer Responses to Strikes

Hire Strike Replacements



Depends on their availability.
Downside: future employer/employee relations
may suffer.
Chapter 11 Bankruptcy


Permit use of successor employer doctrine.
See NLRB v. Bildisco & Bildsco, 465 U.S. 513
(1984).
Other Union Options

Slowdowns



Working to the rules
Refusing overtime
Corporate campaigns


Identifying and reporting regulatory violations
Publicly distributing damaging information about
the employer.