Last Chance Agreements And The Duty Of Fair Representation

What does it take for an arbitrator to uphold a Last Chance Agreement? At a minimum:

• The employee must have competent union counsel while negotiating the Last Chance Agreement;

• The employer must tender sufficient consideration;

• There must be an ending date for the last chance status;

• There must be a clear statement of what constitutes a breach of the Last Chance Agreement.

Competent counsel for the employee raises both duty of fair representation implications as and professional responsibility implications for the attorney retained:

• Is the attorney’s retention such that he or she can negotiate independently of the union?

• Does he or she represent the member through the union, or does he or she represent the member?

• If the attorney has a dispute with the member, can the member terminate that attorney, retain his or her own attorney, and still continue to negotiate a deal?

• If the employee can do this, would any deal be enforceable?

Special problems arise with Last Chance Agreements that arise from the employee’s drug or alcohol use. Alcoholism is treated as a disability under ADA, and the employee could challenge the Last Chance Agreement as incompatible with ADA rights. Courts in these circumstances tend to look for:

• Sufficient consideration, in the form of the defendant employer reinstating the employee’s employment;

• Complete voluntariness and knowledge of the statutory rights that he was waiving;

• Any evidence that the Last Chance Agreement was overreaching or exploitive;

• Accommodation of the employee’s condition through the Agreement.