Last Chance Agreements Are Enforceable If ‘Precisely Written’

Written on 09/02/2022
Will Aitchison

Local 2297 of the IAFF represents firefighters working for the North Collier Fire Control and Rescue Dis­trict in Florida. The District issued a termination notice to bargaining unit member Mark Batten. At the time of his termination, Batten was subject to the terms of a Last Chance Agreement (LCA). The LCA provided that Batten could be immediately terminated if he violated District Policies 1.03 (Code of Ethics) or 1.04 (Code of Conduct and Discipline).

Local 2297 filed a grievance al­leging that Batten’s discipline violated the collective bargaining agreement. Citing the LCA, the District refused to proceed to arbitration on the grievance. Local 2297 responded by filing an unfair labor practice complaint with Florida’s Public Employment Relations Commission, alleging that the Dis­trict’s refusal to arbitrate violated its obligations to bargain in good faith.

The General Counsel for the Commission dismissed the complaint. The General Counsel began by noting that “the Commission has concluded that an employee can waive his or her collective bargaining rights pursuant to an LCA. The Commission’s stan­dard for examining the validity of a waiver is whether the waiver is ‘clear and unmistakable.’

“A clear and unmistakable con­tractual waiver of bargaining rights is demonstrated by language which unambiguously confers upon an em­ployer the power to unilaterally change terms and conditions of employment. A waiver of this type must be stated with such precision that simply by read­ing the pertinent contract provision employees will be reasonably alerted that the employer has the power to change certain terms and conditions of employment unilaterally.

“The validity of the waiver in an LCA, and thus the difference between a penultimate chance versus a true ‘last chance,’ depends on the precision of the language used in the agreement. LCAs are enforceable if they are cor­rectly and precisely drafted. When not done properly, they can become Hydra-like to their drafters by cutting off remedial paths only to find that others remain or have sprouted.

“In the instant case, the LCA between Batten and the District is correctly and precisely drafted. Bat­ten entered into the LCA in lieu of termination for an earlier offense. Under the terms of the LCA, Batten served a five-day suspension without pay. Additionally, the LCA allows for Batten’s immediate termination upon a finding that he violated either District Policy 1.03 or 1.04. The LCA gives the fire chief the sole discretion to make the decision to terminate Batten and further states that such a decision is final and binding on all parties. Finally, the LCA language constitutes a clear and unmistakable waiver of Batten’s grievance rights under the CBA.

“Perhaps recognizing the diffi­culty in avoiding the clear waiver language in the LCA that precludes him from utilizing the CBA’s griev­ance procedure, Batten instead argues he was terminated without an actual finding that he had violated either District Policy 1.03 or 1.04. Howev­er, what is stated in the LCA is that the fire chief had the sole discretion to terminate Batten. Moreover, the LCA clearly precluded Batten’s use of the CBA’s grievance procedure to challenge either his termination under the LCA or his right to file a grievance concerning the terms of the LCA. Therefore, Batten is not entitled to the relief he is seeking, and his claim is not arbitrable.”

North Collier Professional Fire­fighters, 49 FPER ¶ 9 (Fla. PERC Gen. Coun. 2022).

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