Are we there yet? Reviewing impasse in union negotiations

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,