"Subject to termination" does not equal automatic termination.

The Sixth Circuit has upheld the dismissal of an action seeking to set aside an arbitration award.  Titan Tire had dismissed an employee under its drug policy, which provided that employees who test positive for drugs were “subject to termination”. The arbitrator converted the termination to a suspension, concluding, contrary to the employer’s argument, that “subject to termination” did not mean automatic termination. The arbitrator found the termination contrary to other language in the cba which required notice to the employee of the consequences of a failed drug test. Noting the narrow scope of review of arbitration awards the court found no basis for refusing to enforce it. The court’s decision can be found here.

Arbitrator Jonathan Dworkin's award can be found here. The District Court's opinion here.

Update: Two awards discussing the impact of policies providing for discipline "up to termination" are discussed at Just cause, progressive discipline and zero tolerance.