BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 150, SERVICE EMPLOYEES INTERNATIONAL
d/b/a NORTHWEST HEALTH CARE
Local 150, Service Employees International Union, AFL-CIO, CLC, hereinafter
as the Union, and GranCare, Inc. d/b/a Northwest Health Care Center, hereinafter referred
to as the
Employer, are parties to a collective bargaining agreement which provides for the final and
arbitration of disputes arising thereunder. The Union made a request, with the concurrence
Employer, that the Wisconsin Employment Relations Commission designate a member of its
act as an arbitrator to hear and decide two grievances over separate discharges. The
so designated. Hearing was held in Milwaukee, Wisconsin, on June 11, 1998. The hearing
transcribed and the parties filed post-hearing briefs which were exchanged on August 21,
The grievants, Ann Maney and Ronica Little, were terminated by the Employer on
11, 1997, for sleeping while on duty. Ann Maney was hired on January 11, 1988, and
was hired on May 8, 1990, and both were employed as Certified Nursing Assistants (CNA's)
Employer and both worked the third shift.
Mary Humphrey, a charge nurse on the third shift, testified that on November 10,
was called into the dining room where she observed Ann Maney sitting in a chair asleep and
asked by the charge nurse to wake her up. She complied and woke Maney at 5:10 a.m.
denied she was asleep and testified that she was in the lobby at 5:10 a.m. and started her
at 5:18 a.m.
Humphrey testified that on November 11, 1997, the charge nurse came and got her
went to the upper dining room where she observed Ronica Little sitting in a rocking chair
appeared to be asleep and Humphrey woke her. Little denied sleeping.
Humphrey testified that she had seen other employes nod off and they were never
Little testified that all the employes including the nurses and the charge nurse dozed off on
with the exception of Kathy Bell. On November 11, 1997, both grievants were discharged
sleeping on duty. Each filed a grievance which was processed to the instant arbitration.
The parties stipulated to the following:
Was there just cause for the discharge of the grievants?
If not, what is the appropriate remedy?
DISCIPLINE AND DISCHARGE
SECTION 1. JUST CAUSE. After completion of the
probationary period, no employee shall
be disciplined or discharged except for just cause.
The Employer contends that the grievants were discharged for just cause
because they were
observed sleeping on duty by two different staff members. The Employer notes that its
policy is that
sleeping on the job justifies immediate discharge. The Employer points out that it operates a
24-hour-a-day skilled nursing facility which requires staff on duty at all times. It asserts that
it has limited staff on the third shift and providing nursing care requires
sometimes immediate attention and for this reason, it has a policy which justifies immediate
termination for sleeping on the job.
The Employer recounts that on November 10, 1997, Ms. Maney was observed
two nurses, Humphrey and Curtin and on November 11, 1997, Little was observed by the
nurses. It alleges that both were awoken by Humphrey and each employe displayed sleeping
behavior, "snoring," "eyes closed," "head down on the table," or "head back in a rocking
The Employer argues that the two defenses lack merit. The Employer claims
that the defense
that they were not sleeping at all is untrue as shown by the testimony of RN Humphrey. The
defense, that others found sleeping were not terminated, is questioned by the Employer
Employer has terminated employes for sleeping on duty, though not in all cases.
points out that the Company handbook states that sleeping on duty justifies termination and
grievants were aware of this policy.
In conclusion, the Employer contends that it had just cause to discharge the
sleeping on duty, an offense that can seriously threaten the welfare of residents in a nursing
It argues that this is such a serious offense that it is not lessened by the grievants' years of
It maintains that sleeping on duty is a serious work rule violation and the decision to
employment should be upheld.
The Union claims that the Employer's case rested solely on Mary Humphrey's
severe questions were raised concerning her credibility. The Union also asserts that the
the grievants for sleeping on the job conflicts with the treatment of other employes. It notes
while the Employer's rules provide that sleeping on the job is improper, such conduct does
require discharge but the discipline is dependent upon all the circumstances.
With respect to Humphrey's credibility, the Union notes that she worked under
the RN in
charge of the night shift, Ethel "Mickey" Curtin, who was out to get rid of the grievants.
relies on the testimony of the Union Steward who investigated the grievance during the
which she spoke with Humphrey and Humphrey told her that Little was
not asleep and was ambiguous with regard to Maney. It observes that Humphrey
explained to the Steward that Curtin wanted to get rid of the grievants and Humphrey did not
The Union argues that even if the grievants had dozed off, discharge is not
observes that they work on the third shift from 10:00 p.m. to 6:00 a.m. and between rounds
in the dining room reading or doing other things to pass the time. It notes that they are
available if the nurse requests their assistance and there are no set break times. It contends
that it is
not surprising that employes will nod off from time to time in the early morning hours. It
this is common and includes nurses as well as CNA's. It asserts that Nurse Curtin even left
and slept which incident was reported to higher management. The Union claims that Curtin
Delrose Cain to doze off so long as Cain would go to bingo with her after work.
Despite the Employer's policy on sleeping on the job, the evidence established
that only one
employe was discharged. It observes that in that case, the employe was found sleeping in a
room with the curtains drawn and the covers over her. It maintains that there is no
between sleeping in a resident's bed and an employe who dozes off briefly.
The Union also points out that a Robin Holland who had less than 90 days of
found sleeping in a chair in a resident's room and received a warning notice. It asserts that
case involves two long-term employes who, at best, briefly dozed off between rounds, and
Humphrey's contradictory statements, it is doubtful they were asleep, and, given the
Holland, the discipline cannot stand. It notes that the Employer had the burden of proving
for the discharges and it failed to carry its burden with respect to the facts or to justify the
disparate punishment given to the grievants. It seeks reinstatement of the grievants and that
made whole for all losses.
Sleeping on the job, particularly at a skilled nursing facility, is a serious matter and
likened to theft of company property because if a sleeping employe is permitted to do so, the
is rewarded for not working. Sleeping on the job is a serious offense but it does not
for immediate discharge. A number of matters have been raised by this case. The first is
evidence even established that the grievants were sleeping on the job. The Employer
documents with its brief. These documents were not admitted into evidence and it is
to consider them and they cannot be considered as proof of anything. Additionally, RN
testified at the hearing so the Employer's proof is the testimony of RN Humphrey as well as
exhibits admitted into evidence at the hearing. With respect to Ann Maney, I credit
testimony that she heard Maney snoring and observed her sitting in a chair in the dining
her head down and Humphrey had to awaken her. As to Ronica Little, Humphrey testified
appeared to be
asleep with her head back and her eyes closed. The Employee Handbook (Ex-9) lists
modes of conduct which includes sleeping or appearing to be asleep while on duty. In
the proof established that she appeared to be asleep.
The next issue is whether discharge is warranted for the grievants' conduct.
arbitrators distinguish between employes who make preparations and deliberately sleep in an
location from employes who inadvertently doze off or nod off. This distinction is noted in
Southwestern Engineering Co. 95 LA 1006 (Suardi, 1990) citing Crown Cork and Seal, 64
LA 734 (Stilwell, 1975), who stated:
One who deliberately seeks out a secure hiding place to avoid
detection and proceeds to deny
management of his services wilfully and maliciously is not the same as one who through
circumstances of his work or other situations falls inadvertently to sleep without intention of
It would appear that in an earlier case, a CNA who was found
sleeping in a resident's room
at 11:00 a.m. with a blanket over her, with the privacy curtain drawn and a wet floor sign
by the door
and who was discharged falls in the first category of deliberately and secretively sleeping on
(Ex-10). On the other hand, an employe who was found sleeping in a chair in a resident
her head down over folded arms on an overbed table was merely given a warning notice
would fall in the second category.
In the instant cases, the evidence did not establish that the grievants made any attempt
surreptitiously seek out a sleeping place; rather the evidence indicates that this was in the
of accidental or inadvertent dozing off. Additionally, there was no proof that either had
her duties. Under these circumstances, immediate discharge is not appropriate. The
Discipline Procedure states:
Moreover, it is stressed that all disciplinary situations must be
evaluated in light of their individual
circumstances, including the employee's overall record of performance. Therefore, the list
only a guide as to what discipline may be appropriate for the situations listed and as to what
may apply for situations not listed. (Ex-8).
Where discipline may be appropriate, it requires an evaluation
of all the circumstances. Here,
the evidence failed to show that the grievants had anything but a clean record and no
irresponsible conduct related to sleeping on the job. At most, the evidence was that the
dozed off or appeared to be asleep in a situation that is consistent with unintentional nodding
sleep. Under these circumstances, immediate discharge is not appropriate.
Furthermore, the evidence in the instant case indicated that all but one employe dozed
occasion including the nurses and, in particular, Humphrey and Curtin. Humphrey was not
to rebut this testimony. The evidence indicated that RN Curtin not only slept on the job but
condoned certain CNA's sleeping on the job. Under these circumstances, where sleeping on
was condoned, the Employer had the obligation to warn employes that it no longer condoned
on the job, even inadvertent nodding off, before it could invoke immediate discharge.
notice, discharge would be completely unfair and unwarranted so as to violate the basic
tenets of just
cause. Great Plains Bag Corp., 83 LA 1281 (Laybourne, 1984).
The Employer did not have just cause to discharge the grievants. The evidence
at best that the employes inadvertently dozed off or appeared to be sleeping. In similar
circumstances, employes received merely a warning notice and given the past acceptance of
condoning nodding off and the failure to discipline anyone for doing this in the past, the
summary discharge cannot stand. They are to be immediately reinstated with back pay. The
discipline warranted is a warning notice.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The Employer did not have just cause to discharge the grievants. The discharges
reduced to warning notices. The Employer shall immediately reinstate the grievants to their
positions and make them whole for lost wages and benefits, less interim earnings and
compensation received, if any. The undersigned will retain jurisdiction for a period of thirty
for the sole purpose of resolving any disputes with respect to the remedy herein.
Dated at Madison, Wisconsin, this 1st day of September, 1998.
Lionel L. Crowley, Arbitrator