[PEN-L:10740] Re: tight labor markets -- a historical question

[Ellen Dannin <[EMAIL PROTECTED]>]

One thing that seems to be affecting union power and thus the 
attractiveness of unions to members has been the expansion of the legal 
doctrine which allows employers to implement their final offers upon 
reaching impasse. Beginning in the mid-1980's the NLRB became 
increasingly willing to find impasse, leading in some instances to the 
"instant impasse." [Employer comes to first bargaining session, says 
"Here is my offer. It is very firm. I will negotiate, but this is what I 
must have and you will be unable to change my mind." The employer 
declares impasse and implements.]

Employers can't lose and unions can't win under this doctrine. To get to 
impasse an employer must propose and insist upon terms unacceptable to 
the union, and those may be the very terms the employer would like to 
implement. The union can only stave off impasse by making concessions.

20% of cases decided by the NLRB over the past five years concern this 
issue. The rate is increasing.

In a pre-survey I did with a couple others, we found that union 
negotiators were making concessions in +60% of cases SOLELY to stave off 
impasse and implementation. Along with implementation, employers may be 
able to replace the workers if they have struck. All this makes unions 
very weak. You can't only look at economic factors to try to figure out 
why unions are so unable to avoid concessionary bargaining. The law plays 
an important part.

So far very little research has been done into the issue of 
implementation upon impasse and its impact on collective bargaining. It's 
enormously important, and the area is currently wide open.

ellen

Ellen J. Dannin
California Western School of Law
225 Cedar Street
San Diego, CA  92101
Phone:  619-525-1449
Fax:    619-696-9999