Proceed with care during union negotiations

Here’s a warning to employers facing a union for the first time. Get an attorney right away and rely on his or her advice to guide your actions.

The 5th Circuit Court of Appeals, which has jurisdiction over Texas employers, has just issued a tough decision requiring an employer to rehire employees it terminated during a strike.

Recent case: The National Labor Relations Board (NLRB) was called in to see if El Paso Disposal acted illegally during an effort to organize drivers and garbage collectors.

In 2006, the International Union of Operating Engineers won certification as the collective bargaining representative for the two employee groups. The union and the company began initial contract negotiations. Things did not go smoothly.

El Paso Disposal delayed negotiations with various tactics, including cutting short the negotiating sessions. Then the company said it wouldn’t move forward to resolve contract sticking points and announced a take-it-or-leave-it contract offer.

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Union members voted to strike, and El Paso Disposal fired the strikers, replacing them with new employees who denounced the union. Shortly after, the company gave pay raises to employees who hadn’t joined the picket line.

The NLRB stepped in when the union petitioned for reinstatement of the strikers. The board argued that the strike concerned unfair labor practices—a type of strike that doesn’t allow employers to permanently replace strikers. The lower court issued the order and El Paso Disposal appealed.

The 5th Circuit Court of Appeals upheld the lower court. It said that the way El Paso handled negotiations and increased wages amounted to an unfair labor practice. It ordered rehiring of the strikers. (Overstreet v. El Paso Disposal, No. 09-51006, 5th Cir., 2010)

Final note: Once employees unionize, you need legal counsel to handle contract negotiations.