Declaring impasse during collective bargaining can be an important, consequential decision for an employer. A valid impasse generally allows an employer to implement its last, best, and final offer unilaterally, but a premature declaration can violate Section 8(a)(5) of the National Labor Relations Act (NLRA).
In Southwest Florida Symphony Orchestra and Chorus Association v. NLRB, decided February 19, 2026, the U.S. 11th Circuit Court of Appeals addressed this issue after the Symphony declared impasse just one week after the union’s membership rejected a contract offer. This followed a year of negotiations, 14 bargaining sessions, and the engagement of a federal mediator. The court upheld the National Labor Relations Board’s (NLRB) finding that the declaration was premature, emphasizing that the parties had made meaningful progress after an earlier “final” offer and that the union had indicated openness to surveying its members and meeting again.
What is Impasse?
Impasse is “synonymous with a deadlock,” occurring only when the parties have bargained in good faith and neither is willing to move from its position. The NLRB examines the totality of the circumstances, including:
- Bargaining history
- The good or bad faith of each side
- The frequency of negotiations
- The importance of unresolved issues
- The parties’ contemporaneous understanding of where things stand
Critically, a failed ratification vote alone doesn’t establish impasse, nor does the passage of time or failure to reach agreement after multiple sessions.
Lessons for Employers
The Southwest Florida Symphony decision offers several practical compliance lessons. You should document the bargaining process thoroughly, maintaining records of every session, proposal, and concession. You should also avoid declaring impasse shortly after a ratification vote fails, especially if the union signals any intention to regroup or consult its membership.
Additionally, be cautious with “last, best, and final” language if you intend to keep negotiating because subsequent movement can undermine a later impasse claim. Most importantly, you should look for signs that the union may still be willing to move. If the union is requesting meetings, surveying members, or expressing willingness to revisit issues, impasse likely hasn’t been reached.
Bottom Line
Impasse is a high bar, and premature declarations expose employers to liability. When in doubt, continue bargaining. Candidly, because the stakes of getting the call wrong are so high, no employer should declare impasse and implement without engaging labor counsel. If you have questions regarding collective bargaining or making an impasse determination, please contact our office for additional guidance.
Alec R. Rolain is an attorney with Felhaber Larson in Minneapolis and can be reached at arolain@felhaber.com.