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Let’s say a union has just won a representation election and now you’ve become a unionized employer. Suddenly, after running your own business, you’ve got a partner. No more unilateral decisions in dealing with your employees ...

The key question: How do you protect yourself in decision making and prevent union encroachment on your prerogatives as a boss, including your right to terminate deadwood employees?

It may seem ironic, but your best defense is something that comes with a union: the negotiated contract. The contract language spells out your management rights. So what you do in negotiating that contract—the goals you formulate—is vital to protecting your interests.

Through the years, decisions of the NLRB and the courts have tended to narrow management’s rights in what has seemed to be an invasion of business decisions. An example is the area of subcontracting, interpreted to involve “terms and conditions of employment”: the definition for union involvement. The NLRB says that even such issues as dropping a product line, automating or moving a plant and having an in-plant cafeteria or food vending machines are subject to bargaining.

Contract clauses

In negotiating a contract, nail down your right to make a wide variety of business decisions. The contract language becomes your protection because it will surely be scrutinized if a dispute with the union arises.

You’ll want to assert your rights in a variety of contract clauses, such as the right to discipline for absenteeism, the right to discharge for excessive time spent away from work, and the right to discipline and discharge. Arbitration clauses (another factor that can seriously intrude on your rights) should meticulously define which issues in conflict are to be dealt with exclusively by an arbitrator.

At the same time, avoid going overboard with a blanket management-rights demand aimed at covering all bases. In its decisions, the NLRB has interpreted this strategy as an effort to strip the union of its statutory prerogatives by holding that it was not a good-faith approach to bargaining.

You have other pitfalls to avoid. In case the contract language is imprecise concerning your rights, you should have an accurate record of contract negotiations to fall back on. This means keeping a well-documented account of bargaining history throughout all contract negotiations.

In addition, the practices you follow with the ongoing contract can affect your rights. If you relax discipline or give benefits not called for, these concessions can become an inherent part of your relationship with the union, without benefit of contract language.

On the bright side, a well-crafted collective bargaining agreement can keep an employer out of court. The U.S. Supreme Court ruled in 14 Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009) that a collective bargaining agreement that “clearly and unmistakably” compels a union member to arbitrate claims under the Age Discrimination in Employment Act (and presumably other employment laws) is binding on the employee.

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