"Subject to discharge" and progressive discipline

An earlier post ("subject to termination" does not equal automatic termination) noted a decision of the Sixth Circuit confirming an arbitrator's award reinstating an employee fired for an offense that was "subject to termination" under the cba. The court noted that the arbitrator did not disregard the contract by finding that this language did not compel termination.

The Indiana Court of Appeals has recently reached a similar conclusion.

In  Madison County Board of Commissioners and Madison County Highway Department v. AFSCME Local 3609 the Court refused to set aside an arbitrator's award overturning the termination of two individuals (who happened to be the Union's President and Vice President). The two were dismissed after they were observed allegedly "loafing" on two consecutive days and taking an excessive lunch break on a third.

The applicable cba provided for progressive discipline for minor infractions, but also states that a single major infraction (or a third minor one) made an employee "subject to discharge."


The initial notice of suspension indicated that the employees were being investigated for minor violations. Ultimately, however, the termination notice stated that they had been found to have engaged in the major violations of theft (of time) and falsification of records by claiming to have worked when they were either "loafing" or taking an excessive lunch.

The arbitrator rejected the County's characterization of the offenses as major. He also found that the county had denied the grievants' due process by waiting until after the third incident to take action. Accordingly, he reduced the dismissal to a five day suspension. 

The County sought to set aside the award, but the trial court summarily confirmed it. The county appealed, arguing, inter alia, that the arbitrator's findings on due process improperly modified the cba and that by not upholding the discharges based on each employee's commission of three minor offenses the arbitrator had exceeded his authority.

The Court of Appeals rejected both of these claims. It found the County's position on the due process issue unsupported, finding that the Arbitrator could correctly conclude that the cba requirement that discipline for minor offense be progressive required that County to take disciplinary action promptly. Its failure to do so denied grievants the opportunity to correct their behavior. Moreover, the Court noted:  

[A]s the Union points out, the CBA states that the commission of a third class B minor infraction results in an employee being "Subject to Discharge"; it does not provide for automatic discharge. ... And finally, the CBA does not prohibit an arbitrator from modifying an employee's punishment; it merely prohibits modification of the CBA itself. The arbitrator did not modify the CBA by imposing a lesser punishment than discharge in this case.

The Court accordingly upheld the lower court's decision confirming the award.