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Several writers, including @kenrosenthal, have been throwing around the term impasse as it relates to the bargaining between #MLB & #MLBPA. That is incorrect. Impasse is a term of art in labor law. It means that the negotiations have carried on for a period of time, the parties1/ https://twitter.com/Ken_Rosenthal/status/1268258277848162304
parties have become fixed, and talks have reached a stalemate. Impasse cannot exist over non-mandatory bargaining.* More on that later. When a bargaining impasse occurs is a matter of judgment based upon the bargaining history, good faith negotiations, 2/
length of negotiations, importance of the issue as to which there is a disagreement, and the contemporaneous understanding of the parties as to the state of negotiations. The National Labor Relations Board considers the existence of an impasse to be a question of fact. 3/
It considers: whether there has been a strike or the Union has consulted employees about one, however a strike does not necessarily create an impasse and it may, in fact, break a preexisting one; fluidity of position; continuation of bargaining; 4/
statements by the parties concerning impasse; union animus evidence by prior or concurrent events; the importance of the issues and extent of difference; bargaining history; demonstrated willingness to consider the issues further; duration of hiatus between bargaining sessions;5/
number and duration of bargaining sessions; and other actions inconsistent with impasse. Impasse on one or more issues does not suspend the bargaining obligation on remaining, unsettled issues. 6/
Impasse does not remove the duty to bargain, it only suspends it because impasse is a temporary state of being, which can end suddenly. Almost any changed condition can terminate an impasse. 7/
The NLRB has said, “anything that creates a new possibility of fruitful discussion breaks an impasse” including off the record discussions. 8/
*As I’ve previously explained, mandatory subjects of bargaining under the NLRA are wages, hours, and other terms and conditions of employment. Salaries are mandatory subjects, but once agreed, mandatory subjects are foreclosed from further bargaining 9/
unless both parties mutually consent to reopen them. This is why the subject of pro rata salaries is closed and there is no further duty to bargain. Further, the unilateral discretion of the Commissioner to set the start and stop time for the season based upon 10/
economic feasibility is hours, another mandatory subject. It too is foreclosed with no further duty to bargain. Those subjects can no longer be at impasse; they have been agreed. The duty to bargain remains on safety and health 11/
(including health protocols and the right to opt out) and other terms and conditions of employment (like service time) related to players who opt out. The playoff schedules is also foreclosed as covered by the CBA. So MLBPA may agree to expand the playoffs at their election. 12/
They may have already done so, but I would have to review the language of their proposal to be sure, and I have not. So, not only can there not be impasse on the things that were agreed to in March, there isn’t impasse on the things for which a duty remains. 13/
The parties are continuing to engage in bargaining over those subjects and under the NLRB standard are nowhere near impasse. Having not reached impasse over those mandatory subjects of bargaining, 14/
management cannot unilaterally implement terms and conditions of employment without committing an Unfair Labor Practice for failure to bargain in good faith, the same charge that it committed during the 94-95 bargaining. /end
