In the ongoing negotiations between the AMPTP and SAG-AFTRA, the studios have presented their “last, best, and final offer” to SAG. But this is the second time that they have offered one. If the last, best, and final offers are neither last, best, nor final, then what are they?
The last, best, and final offer is part labor law term-of-art and part negotiating tactic. From the business point of view, they are presented as the final terms that an employer is willing to give to a union. But just because a business states that does not make it so. Businesses have a legal obligation to negotiate with properly recognized unions. For the most part, they may not unilaterally impose a new union contract.
So then what is the point of declaring an offer last, best, and final? While businesses have an obligation to negotiate in good faith with unions, it is possible that negotiations reach an impasse. A bargaining impasse is defined by the National Labor Relations Board as a point in negotiations where further negotiation would be futile. It is not easy to declare an impasse, and efforts by negotiating businesses to do so often result in lengthy court battles. Whether a legitimate impasse exists depends on a number of factors, including the issues in dispute, length of negotiations, and the history between the union and company.
If there is an actual impasse, the business or businesses may impose the terms of their “last, best, and final offer”, provided the terms were made in good faith. In practice, this rarely happens. Given the importance of the remaining conflicts and the length of the current strike, it’s unlikely to happen with the last, best, and final offer presented by the AMPTP here. In practice, unions often treat these declarations as another simple counteroffer and keep negotiating.
So what is a “last, best, and final offer”? In theory, it’s the offer that the AMPTP would impose if they declared an impasse and won the inevitable court battles that would ensue. In practice, it’s mostly a negotiating tactic.