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Jan 6, 2017

LCA Requirements

While last chance agreements are not frequently offered by the Carrier, they are, on occasion, presented to an employee facing dismissal. Such offers must be carefully considered, weighing the various facts and merits surrounding each case and situation. Following is a Labor Arbitration Institute article detailing the requirements of an LCA (this information is reproduced herein with permission of the author):

An advocate once told a prominent labor arbitrator:  The Last Chance Agreement (LCA) is a Performance Improvement Program (PIP) on steroids.

The arbitrator did not disagree, and at a recent conference, offered these minimum requirements.

1.    It’s a tri-partite agreement. There are 3 parties:  employer, union and individual employee. The document must be signed by all three.
2.    Sets forth the context for entering into the LCA, such as what the employee did, why it would have been the subject of discharge, etc.
3.    Sets forth the employer’s expectations of the employee.
4.    and the consequences for violating the LCA (almost always termination).

Additional Conditions
There can also be conditions as part of the expectations:  entering treatment, taking anger management classes or completing counseling, making restitution for damaged or stolen items, submitting to random drug-testing, staying alcohol and drug-free, or maintaining certain production or attendance levels.

What does the LCA mean?

1.    After the employer and union have negotiated it, it’s given to the employee on a 'take-it or leave it' basis. Some union advocates have argued in later proceedings that the grievant signed under duress. The argument is unpersuasive, because of course it was stressful for the employee to either sign or lose his job.

2.    For as long as the LCA remains in effect (usually somewhere between 6 months and 2 years), the employee is no longer entitled to progressive discipline. When the LCA expires, the principle of progressive discipline is reinstated.

3.    The union cannot challenge the LCA in terms of the penalty (nearly always discharge), but it can challenge in arbitration whether the employee violated the LCA. For example, the employee is accused of violating the LCA and the employer immediately moves to discharge. The union cannot challenge the remedy of discharge, but it can challenge whether it was a triggering event and the employee was the actor.

Some LCAs try to skirt this issue and state that a “discharge under the LCA is not subject to the grievance and arbitration procedure in the CBA." Arbitrators (and courts) will not enforce that language. The union always has the option to challenge whether the grievant actually committed the offense and whether the offense falls within the proscriptions of the LCA. This is because the principal of Due Process still applies under the CBA.