BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AMERICAN FEDERATION OF STATE, COUNTY AND
AFL-CIO, WISCONSIN COUNCIL 40, LOCAL 1287
(Grievance dated January 7, 2000;
written warning for sleeping in the County's vehicle
during an unpaid break.)
Mr. Philip Salamone, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 7111 Wall Street, Schofield, WI 54476, appearing on behalf of Local
Ruder, Ware & Michler, S.C., Attorneys at Law, by Attorney Dean R.
Dietrich, 500 Third Street, Wausau, WI 54402-8050, appearing on behalf of the
American Federation of State, County and Municipal Employees, AFL-CIO,
Council 40, Local 1287, hereinafter the Union, with the concurrence of Marathon County,
the County, requested the Wisconsin Employment Relations Commission to designate a
its staff to serve as arbitrator to hear and decide a grievance dispute concerning County
C___ , hereinafter the Grievant, and in accordance with the grievance and arbitration
contained in the parties' collective bargaining agreement, hereinafter the Agreement. The
undersigned, Stephen G. Bohrer, was so designated. On August 29, 2000, a hearing was
Wausau, Wisconsin. The hearing was not transcribed. On October 24, 2000, and upon
the last of the parties' written briefs, the record was closed.
On the basis of the record submitted, the Arbitrator issues the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties did not agree on a statement of the issues. The Union would state the
1. Did the County have just cause to discipline the Grievant
on or about January 5, 2000?
2. If so, what is the appropriate
The County would state the issues as follows:
1. Did the County violate the collective bargaining
agreement when it disciplined the Grievant
for conduct on January 5, 2000?
2. If not, what is the appropriate
The Arbitrator frames the issues for determination as follows:
1. Did the County have just cause to discipline the Grievant
for conduct which occurred on
January 5, 2000?
2. If so, what is the appropriate
The following provisions of the parties' Agreement are cited, in relevant part:
Article 5 Management Rights
The County possesses the sole right to operate County
government and all management rights
repose in it but such rights must be exercised consistently with the other provisions of this
These rights include but are not limited to the following:
. . .
C. To suspend, demote, discharge and take other disciplinary
action against employees for just
. . .
J. To determine the methods, means and personnel by which
such operations are to be
. . .
L. To establish reasonable work rules.
The County will notify the Union, through its authorized
representatives, of any proposed rules at least two (2) weeks prior to the time the new rules
become effective. At any meeting held to consider such rules, the Union through its
representatives, will be allowed to make its position known on the proposed rules or changes.
County, however, reserves the right to establish reasonable work rules for day to day
Any dispute with respect to the reasonableness of the application
of said management rights with
employees covered by this agreement, may be processed through the grievance and
procedures contained herein.
Article 14 Grievance Procedure
. . .
. . .
5. Decision of Arbitrator: The
decision of the arbitrator shall be limited to the subject matter of
the grievance. The arbitrator shall not modify, add to or delete from the express terms of
. . .
Article 22 Break Periods
All employees shall receive a ten (10)
minute paid break approximately midway during each four
(4) hour work period with a thirty (30) minute unpaid break for the noon meal except when
hour days are worked when employees shall receive a ten (10) minute paid break
midway during the first five
(5) hour work period; a thirty (30) minute paid break for the noon
meal. Breaks and noon meals
shall be taken at the work site unless otherwise approved in the reasonable discretion of the
Department Head. The exact time of the breaks will be at the discretion of the Crew Chief
Supervisor as governed by the nature of the ongoing work. Abuse of these break periods
the employee involved to disciplinary action.
The County's Employee Handbook states in relevant part:
We strive to create and maintain a positive and productive work
environment. To achieve this,
we encourage courteous and respectful behavior, a responsible attitude toward work, and
employees, clients, and property.
Because we feel strongly about this, we
have developed the following to clarity [sic] our views.
This statement outlines the general principles on which you are expected to base your
cites examples of unacceptable conduct. The examples are not meant to be all-inclusive.
In general, actions harmful to the public,
another employee, or to the County are cause for
disciplinary procedures, up to and including dismissal. You may be disciplined or dismissed
of the following violations:
. . .
i.) Sleeping on duty.
. . .
Posted on a bulletin board at the shop where Department
employees report to work and finish
their work each day, is a document titled "MARATHON COUNTY PARK DEPARTMENT
OPERATIONS WORK RULES AND EXPECTATIONS." Among those rules are
. . .
4. Employee breaks shall be as follows:
Some break times may vary due
to job circumstances
5. All breaks will be taken at work site. Use
discretion when working in high visibility areas.
6. No sleeping in any Park
Department vehicle or in public at any time.
. . .
The County's Park Department, hereinafter the Department, operates a park system
County of Marathon and the City of Wausau, the only such joint park system in Wisconsin.
Grievant is a Park Maintainer II whose duties include the sweeping of outdoor ice rinks
operating a Model 590 Super L enclosed tractor. This tractor has windows on all four
of the cab where the operator sits and is equipped with a front-end rotating brush for
ice. The cab's heating system draws in outside air and blows warm air on the operator
cold weather. The Grievant has been employed in the Department since July, 1995.
On January 5, 2000, the Grievant was assigned to sweep the City's Tenth Street Park
At 12:10 p.m., the Grievant decided to take his 30-minute lunch break at that time and upon
arrival at the park. He faced the tractor into a snow bank at a corner of the rink and laid his
down on top of his arms and with his arms across the tractor's steering wheel. While in this
position, Grievant kept the tractor idling. Nearby, and also at the rink, was a heated public
house commonly used by ice skaters.
Shortly after the Grievant had positioned himself, Parks Director William Duncanson
driving along Tenth Street to an appointment and noticed the idling tractor with a person in
Duncanson is the overall administrator of the Department. There is a retaining wall which
downward from the street and toward the rink and at the point where Duncanson noticed the
From Duncanson's vantage, he could see someone inside of the cab, but he could not identify
person. Duncanson had no prior knowledge that the Grievant would be there at the time that
drove by. Duncanson drove past the scene, circled his car back around the block and parked
an adjacent street to make further observations. Duncanson observed the scene from about
p.m. to 12:30 p.m. During this time period, the tractor's occupant made no movement,
a slight motion from that person's right shoulder.
After making these observations, Duncanson got out of his car, walked over to the
opened the tractor's passenger side door. The Grievant sat up startled. Duncanson told the
that if he was too tired to stay awake then he should go home and get some sleep. The
that he was not sleeping and that he was not tired. Duncanson was unhappy with the
directed the Grievant to return the tractor to the shop. Duncanson then left for his
Following his appointment, Duncanson called the shop where the tractors are kept
to Park Operations Superintendent Daniel Fiorenza. Fiorenza is the overall supervisor of the
Maintainers, including the Grievant, and reports directly to Duncanson. Duncanson
Fiorenza of what had happened with regard to the Grievant. During this conversation,
informed Duncanson that the Grievant had been involved in a similar incident about a year
facts relating to that prior incident are in dispute and are restated below in the parties'
positions. Fiorenza further informed Duncanson that the Grievant had not yet returned the
to the shop and that the Grievant was out working. The conversation ended with Duncanson
directing Fiorenza to go out and find the Grievant.
Following Fiorenza's telephone conversation with Duncanson, Fiorenza located the
at another ice rink and questioned him about the incident. Fiorenza commented how the
would have had been perceived by the public while at the park. The Grievant responded that
if it was
a busy area, then it was probably not a good thing to do because of the way it looked. The
apologized for getting Fiorenza involved. Fiorenza instructed the Grievant to work the rest
day. Following this meeting, and later that same day, Fiorenza spoke to the Grievant where
discussed that the ice rink's warming house would have been a better place to take a break.
Fiorenza telephoned Duncanson and it was decided that the Grievant would receive a written
On January 5, 2000, Duncanson wrote the following memorandum to the Grievant:
. . .
On Wednesday, January 5, 2000, I observed
you sleeping in the cab of an idling tractor at 10th
Street Park from approximately 12:25 pm to 12:30 pm. At about 12:30 pm I woke you up.
informed you that I had observed you sleeping on the job.
The Marathon County Employee Handbook
lists sleeping on duty as unacceptable employee
conduct that is cause for discipline up to and including dismissal. Based upon this incident
and a prior
incident for which Dan Fiorenza, Park Operations Superintendent, issued you a verbal
warning, I am
issuing you a written reprimand for sleeping on the job. This reprimand will become part of
permanent personnel record. Future incidents of this nature will result in an extended
. . .
On January 6, 2000, the Grievant went to Duncanson's office
and spoke to him about the
incident. The Grievant said that the tractor cab's heat blower had made his eyes dry, that he
lunch break and that he was resting his eyes. Duncanson replied that such conduct
was inappropriate even on the Grievant's lunch break because the public would
conclude that the
Grievant was sleeping. The Grievant said that he had made a mistake in judgment, but
the reprimand not be permanently placed in his file. Duncanson refused to put a time limit
the reprimand in the Grievant's file.
On January 7, 2000, the Union filed the instant grievance stating that "Duncanson
reprimanded [the Grievant] for sleeping on duty when he wasn't sleeping as well as he was
break and therefore not on duty." The grievance seeks to dismiss the written reprimand and
expunge any reference to the reprimand.
On February 3, 2000, and in its decision to deny the instant grievance at Step 2 of
grievance procedure, Duncanson wrote the following on behalf of the County:
The written reprimand given to [the
Grievant] on January 5, 2000, will not be dismissed. During
the five minutes that I observed [the Grievant] slumped over the steering wheel in the
of a tractor in 10th Street Park adjacent to the intersection of
10th and Forest Streets, the only way that
I, or a member of the public, could describe what I observed, is that a person was sleeping
in a tractor
cab. With respect to the contention that [the Grievant] was on break and therefore not on
would remind you that our rules of conduct and behavior are in force at all times in the
In the case of the Park Department, the workplace includes the public lands and facilities we
and the vehicles and equipment we use. Further, employees have been clearly notified of the
to present a positive appearance to the public during breaks and lunch periods.
. . .
On March 7, 2000, County Personnel Director, Brad Karger, denied the instant
Step 3 of the grievance procedure and wrote the following:
I have decided to deny the grievance submitted by [the Grievant]
which appeals a written
reprimand issued to him on January 5, 2000 for sleeping on the job.
On 1-5-00 [the Grievant] was observed by
Bill Duncanson, Park Director, slumped over a
steering wheel of a tractor at 10th Street Park. [The Grievant] says he
wasn't sleeping; he says he was
resting his eyes because a fan had been blowing in this [sic] face that morning. However,
there is no
dispute that a reasonable person would assume [the Grievant] was sleeping and that he was
positioned in full public view.
[The Grievant] says that he was on break at the time. Bill
Duncanson does not dispute this but
points out that [the Grievant] is a public employee and that it is expected that an employee of
Department take reasonable action to prevent the public from getting the idea that its
"shirkers". Such a perception could erode public support for the department and adversely
ability to obtain approval of its projects and programs.
I have decided to deny the grievance and
sustain the written reprimand for these reasons:
1. The evidence indicates that
the investigation of the facts was sufficiently complete and fair.
[The Grievant] and Bill Duncanson met on a subsequent day and engaged in what has been
characterized as a frank and open discussion.
2. The evidence is clear that
there was no effort to "set-up" or exaggerate the facts with regard
to this matter. The supervisors of the Park Department have high regard for [the Grievant]
and his work.
3. [The Grievant] was issued
an oral reprimand approximately 1 ½ years ago for sleeping on the
4. The Park Department has a
legitimate business interest is protecting its reputation in the
community and employees can legitimately be disciplined for actions contrary to this interest.
Whether [the Grievant] was on break or not, the public perception of his behavior is
damaging to the Park Departments [sic] business interests.
The parties thereafter advanced their dispute to arbitration. Additional background
information is set forth in the positions of the parties.
POSITIONS OF THE PARTIES
The grievance should be dismissed.
Although the Grievant contends that he was resting his eyes, an employer need not
scientifically prove that an employee was sleeping, only that a reasonable person would
much, citing General Electric Co., 74 LA 115 (King, 1979). Further, the person observing
less motivation to be untruthful than the person alleged to be sleeping and who is under a
In the instant case, Duncanson observed the Grievant's posture as that of a sleeping
During Duncanson's five-minute observation, the Grievant only made a slight motion with
shoulder. The Grievant was startled when Duncanson opened the tractor's door as would be
expected when waking up suddenly. Further, Duncanson's observation was coincidental to
traveling to a meeting and was not for the purpose of observing the Grievant. It was
Duncanson, or anyone else observing the Grievant, to conclude that the Grievant was
Moreover, the testimony of Duncanson and Fiorenza is more reliable because they have no
to be untruthful, unlike the Grievant who faces discipline. Although Grievant claims that he
resting his eyes due to some of the tractors fumes entering the cab, this testimony is suspect
the Grievant failed to mention it to either Duncanson or Fiorenza immediately following the
The Union's claim that the County's rules are unreasonable is without merit. The
reasonableness of an employer's rule is whether or not it is reasonably related to a legitimate
of management. An employer has a legitimate business interest in protecting their public
particularly where it offers services to the public. In this case, the posted work rules are
related to the County's legitimate objective of fostering a positive image with the public.
perception of the Department is continually under observation by both the City and the
there is no mandate that park services be offered, and if the citizens are dissatisfied with the
Department's services, the Department's budget may be cut. Consequently, and as Fiorenza
Department employees are repeatedly informed at meetings about the importance of their
appearance. The Grievant understands the importance of public perception and, according to
testimony of Duncanson and Fiorenza, the Grievant twice admitted that he made a mistake in
judgment and with regard to his conduct on January 5, 2000.
The Union's argument that the County's rules are unreasonable is untimely. This
should have been raised when the rules were first established. Since they were not
challenged at that
time, an inference can be drawn that the Union considers the rules reasonable.
Duncanson took into account a prior verbal warning for sleeping on the job when
to verbally reprimand the Grievant. The facts of this prior incident show that on December
the Grievant had signed up for the early morning duty of filling an ice rink with water using
truck. At 4:30 a.m. that day, Fiorenza stood outside the truck's door, observed the Grievant
and eventually woke up the Grievant, who was startled. Fiorenza told the Grievant how bad
Grievant's conduct looked and warned the Grievant that "this is never to happen again."
further told the Grievant not to sign up for the duty if he could not stay awake. Fiorenza
the Grievant apologized for his conduct and that it was not necessary under the circumstances
explicitly tell the Grievant that that reprimand was "a formal discipline." Following this
Fiorenza made a note of the incident in his home computer. These notes are not placed in
Fiorenza's account of the prior incident is more credible than the Grievant's account
Fiorenza has no reason to testify falsely and, unlike the Grievant, is not facing a written
Further, the Grievant's claim, i.e., that the prior incident does not constitute a verbal
implausible. Fiorenza's statement to the Grievant on December 21, 1998, that "this is
happen again" is reasonably construed as a verbal warning. The testimony by Union
that the Grievant never informed Sislo of the prior incident should not be given weight since
conceded that employees do not always advise him of their oral or written warnings.
The County's written warning imposed upon the Grievant was appropriate and the
should defer to the County's judgment absent an abuse of discretion. Since the County's
determination in this regard was not arbitrary, capricious or discriminatory, there was no
discretion and the discipline should stand. Further, in light of the prior verbal warning for
on the job and the severity of the Grievant's conduct in the most recent incident, the written
reprimand issued to the Grievant should be upheld.
The grievance should be sustained and the Grievant's record expunged.
The Union disputes or emphasizes certain facts which affect the outcome of the case.
include that the Grievant was reclining on the tractor's steering wheel, as opposed to
Duncanson did not properly investigate whether the Grievant was sleeping and assumed it
asking the Grievant for an explanation, that the Grievant's conduct was during a contractually
provided unpaid lunch break, that there is no rule against sleeping during breaks, that the
a problem with exhaust fumes which may have caused the Grievant to become drowsy, and
Grievant has maintained a good work record.
With regard to the investigation, there is not substantial evidence that the Grievant
of the alleged misconduct and the County has not met its burden of proof that he was
Midwest Telephone Co., 66 LA 311 (Whitney, 1976). Duncanson was acting upon an
and ambushed the Grievant after observing him for just a few minutes. He then initiated a
reproach and launched into an uncontrolled tirade. The evidence supports an inappropriate
investigation because Duncanson failed to ask whether the Grievant was sleeping and because
Duncanson admitted that he could not see whether or not the Grievant's eyes were closed.
written reprimand itself shows that it was based upon an assumption where it states that "a
person would assume that [the Grievant] was sleeping."
Sleeping on the job can be a relatively serious offense. Since there is not convincing
that this occurred, the discipline should not be sustained, citing Coastal Resin Co., 61 LA
(Jenkins, 1973) and Pet Incorporated, 83 LA 468 (Schedler, 1984). In
Coastal Resin Co., as in the instant case, the supervisor surmised that the employee
In overturning the discipline, the arbitrator ruled that the employer had not met its burden of
Similarly, in Pet Incorporated, the arbitrator determined that the employer failed to establish
grievant was actually asleep. The supervisor's approach in Pet Incorporated was similar to
Duncanson's approach in that the former made his determination based upon surreptitiously
through a crack in the stall. Likewise, in Scott Paper Co., 99 LA 624 (Byars, 1992), the
found that there was no evidence of negligence on the grievant's part or that there was work
grievant to do when he was allegedly sleeping. Comparing the above cases to this case, it is
that the County failed to ask the Grievant whether he was sleeping and failed to properly
Therefore, the County's actions were both unreasonable and nonsensical.
If it is determined that the Grievant was asleep, there is no rule prohibiting sleeping
unpaid lunch breaks. The time of the incident was between noon and 12:30 p.m. According
parties agreement, this is an unpaid, duty free lunch period. In Duncanson's state of mind,
was something which Duncanson apparently did not know or care about. Furthermore, the
Handbook expressly describes sleeping "on duty" as misconduct. Since the Grievant was on
break and not on duty, he was not breaking any rule.
An employee's break period is usually considered a time to enjoy a respite from
work. In a
somewhat similar case, an employer was found to have improperly disciplined an employee
sleeping 8-10 minutes during a bathroom break, citing Oshkosh Truck Corp., 81 LA 1009
1983). In that case, the arbitrator reasoned since the employee had the right to take a toilet
since there was no evidence that he had gone there for the purpose of sleeping or that his
beyond a normal 10-15 minute bathroom break, that discipline was overturned.
If it is determined that the Grievant was sleeping and if it is also determined that
a rule against sleeping on an unpaid lunch break, then such a rule is unreasonable and,
a violation of the parties' agreement. An employer retains the inherent right to exercise
control over employee conduct, but that right is for conduct during scheduled work hours,
Brown-Graves Co., 43 LA 465 (Stouffer, 1964). It is unreasonable for an employer to
rules that directly affect an employee's use of break time, particularly where there is no
breaking the rule would interfere with the employer's production, citing Ross Clay Products
41 LA 1095 (Kabaker, 1963), or where the employee is not trying to hide anything, citing
Kawneer Co., 30 LA 1002 (Howlett, 1958). In this case, the rule against sleeping during a
contractually provided duty free lunch period is unreasonable because it seeks to control an
employee's behavior during an unpaid break and without compensation. The County
wants to "have their cake and eat it too" and to secure a change in the contract through this
If it is determined that the rule against sleeping is reasonable, then there are
circumstances that should be taken into account. At the time of the alleged misconduct, the
had recently requested service of the tractor due to the tractor's outside exhaust fumes
inside of the tractor's cab. It is well recognized that even low levels of such fumes can
drowsiness. Therefore, the Grievant's recent request for service of faulty equipment is a
With regard to the appropriateness of the penalty, the discipline here was too harsh
inconsistent with the County's past practice of progressive discipline. Contrary to the
argument of leniency by the County, the fact that the discipline was not more severe is more
reflection of the County's known problems with the discipline than any claimed spirit of
the part of the County. Notwithstanding the significant aforementioned points raised on
if it is a legitimate offence to be either napping or reclining on a break, the Grievant's
should be considered a minor infraction and subject to a progressive level of discipline, citing
Harvester Co., 12 LA 1190 (McCoy, 1949).
The evidence shows that the County has accepted a progressive level of discipline,
with a verbal warning and then advancing to a written warning. With regard to the prior
about one year ago, it did not result in any oral reprimand. Rather, the Grievant was
Fiorenza that it may be hazardous to sit in a particular truck with the engine idling due to the
for exhaust fume contamination. Contrary to Fiorenza's claim, the Grievant was not warned
sleeping on the job and the Grievant was not told that he was being disciplined. There was
reference made by Fiorenza about the incident in the Grievant's personnel file. According to
Chief Steward Sislo, the County's practice is to record verbal warnings and place them in the
employee's file. The omission of this documentation supports the Union's contention that the
incident related to safety and was not disciplinary.
If it is determined that the January 5, 2000 incident warrants discipline, then such
should be reduced to an oral reprimand.
The County's Reply Brief
The Union's characterization that Duncanson "ambushed" the Grievant, that
"launched into an uncontrolled tirade," or that Duncanson was "flying off the handle" after
the Grievant on January 5, 2000, is not supported in the record. In addition, the Union's
the County has a practice of recording it verbal warnings, is incorrect. The Grievant's
challenges Sislo's statement when the Grievant received a prior verbal warning for not
seatbelt, but did not receive anything in the Grievant's personnel file verifying this warning.
it is not the Department's practice to record verbal warnings in an employee's personnel file.
should be noted that Fiorenza's reference to a computer is actually a reference to one in
office at the Department.
The three cases cited by the Union concerning whether an employee is found sleeping
inapplicable. In Coastal Resin, Co., the arbitrator refused to infer the fact that the employee
sleeping under circumstances where the employee's eyes were open, he was lucid and he
to conversation. In the instant case, the County's evidence that the Grievant was sleeping
upon facts, i.e., Duncanson observing the Grievant laying across the steering wheel with
arms on the
wheel and his head face-down on his arms, not inferences. In Pet Incorporated, the
overturned because the employer failed to identify the person viewed sleeping through a
crack in the
bathroom stall door as the grievant. In the instant case, the identification of the grievant is
issue and, therefore, is inappropriate to compare. In Scott Paper Co., the grievant was not
of sleeping, and so the arbitrator did not address that issue. Further, the grievant was
negligent job performance. This was overturned because of the employer's failure to
evidence regarding that allegation.
With regard to the Union's assertion that it is inappropriate to discipline an employee
conduct occurring during an unpaid break, the case of Oshkosh Truck Co., is factually
distinguishable in that the grievant was found sleeping in a private place, i.e., a bathroom
opposed to the Grievant sleeping in a public park. As previously asserted on brief, it is
the Department to maintain a positive public image, one that is tarnished when employees are
observed sleeping in public. Further, unlike the employee in Oshkosh Truck Co. who had a
under plant practice to be in the bathroom, the Grievant in the instant case violated a rule by
in a Departmental vehicle in public.
The Union's Reply Brief
With regard to the incident in December of 1998, the Grievant was not warned for
and that incident was not disciplinary in nature. Rather, and as the Grievant testified, that
of a cautionary statement with respect to potentially hazardous exhaust fumes. Further, the
Grievant's account of the prior incident is more credible because there was not a formal
and the County has a past practice of recording such discipline. In addition, the County has
burden of proof and it has not met its burden with respect to the incident in December of
It is significant that the County has not met its burden of proving that the Grievant
sleeping on January 5, 2000. The County's repeated assertions to the contrary is an
indication of an
inherent weakness in their case.
The Union disputes that the County had "just cause" to discipline the Grievant for
on January 5, 2000. Duncanson did not know whether the Grievant was sleeping, rather he
it. Further, this assumption was based upon a limited observation and Duncanson admitted
could not see whether the Grievant's eyes were closed. Duncanson merely observed the
drove around the block and saw the Grievant in a
position that he believed to be the same. Moreover, Duncanson's alleged investigation
nonexistent due to Duncanson's failure to ask the Grievant whether or not he was sleeping.
The County's use of cases, in support of its argument that an employer need not
prove an employee was sleeping, is misleading. In Phelps Dodge, 107 LA 175 (Brisco,
employer's discipline was without just cause, was overturned, and the grievance was
Similarly, in Arch of Illinois, 107 LA 178 (Feldman, 1995), the arbitrator sustained the
finding that there was not just cause despite there being no question that the grievant was
In Basin Electric Power Cooperative, 91 LA 443 (Jacobowski, 1988) the discharge was
overturned based in part on the fact that the grievant's duties included a
factor and that the grievant had not neglected his duties. Further, the discipline was reduced
a discharge to a one-day suspension. In Contico International, Inc., 93 LA 530 (Cipola,
the discharge was overturned where the grievant was working more than 60 hours per week
was sleeping during some slack time following an electrical outage. In Manley Brothers, 106
442 (Cohen, 1996), the discipline was sustained; however, the supervisor was close enough
observe the grievant's face and eyes so as to assure a correct conclusion that the grievant was
These facts are in contrast to the instant case's facts regarding Duncanson's conduct and
In addition, the County's reference to Maui Pineapple Co., 86 LA 907 (Tsukiyami,
is questionable. In that case, there was no dispute that the grievant's eyes were closed;
unlike the present case, the grievant had been previously discharged and was under a "last
agreement. Therefore, it is distinguishable. Moreover, the reasoning in Maui Pineapple
where testimony conflicts the employer's version is more reliable because they have no
to be untruthful, is faulty. It conflicts with the longstanding principle that in discipline cases,
employer bears the burden of proof. Following the line of reasoning in Maui Pineapple Co.
unavoidable result, in discipline cases where the facts are in dispute, the employer is always
the truth and the grievant is always lying.
It is significant that none of the County's cited cases deal with a grievant being
allegedly sleeping during an unpaid break. This strongly suggests that it is highly unusual
employee to receive discipline for such conduct during an unpaid break. It should also be
the work involved here is a blue-collar type and is often physical. Thus, such work can lead
degree of exhaustion. Since breaks are negotiated to serve a respite from work, they are
to provide employees time to briefly relax. This is what the Grievant was doing. The lack
cases regarding employees allegedly sleeping on breaks attests to the fact that most rationally
employers recognize the purpose for which breaks are intended.
Duncanson's testimony that the Grievant was "startled" on January 5, 2000, is not
Duncanson acknowledged that he basically slinked-up on the reclining Grievant
and ambushed him. Under these circumstances, it was not unusual for the Grievant to
way. This falls far short of any "smoking gun" that the Grievant was sleeping.
The County's allegation that the Union is untimely challenging the reasonableness of
County's work rules is unsupported. No evidence was advanced at the instant arbitration
whether the rule was challenged prior to the hearing. Further, the Union does not challenge
reasonableness of a work rule prohibiting an employee from sleeping on duty since the
reclining and not asleep and since he was on an unpaid break.
The County's use of cases, in support of its argument that off-duty employee conduct
result in legitimate employee discipline, are dissimilar, extreme, and/or do not support its
Indiana Bell Telephone, 93 LA 981 (Goldstein, 1989) involved a grievant who was convicted
of patronizing a prostitute. Indiana Bell Telephone Co., 99 LA 756 (Goldstein, 1992)
a grievant who violated a substance abuse policy; her discharge was reduced to a suspension.
Pittsburgh Plate Glass Co., 49 LA 370, 374-375 (Dworkin, 1967) involved an intoxicated
grievant who drove a motorcycle through the plant while off-duty. City Of Cedar Rapids, 95
1119 (Cohen, 1990) involved a grievant who left her job duties and her equipment to discuss
business and who falsified a work log. City of Racine, WERC MA-9994 (Nielsen, 1998)
the challenge of a work rule that was the result of a negotiated change in language relating to
Contrary to the County assertions, the cases of Marathon County, WERC MA-6492
(Levitan, 1991) and Peoples Gas Light And Coke Co., 73 LA 357 (Gundermann, 1979) are
very similar to the instant case. In Marathon County, a written warning was upheld where
grievant used a county vehicle for personal use and without permission. However, the
that case was the grievant's second offense and was preceded by an oral reprimand over facts
were not in dispute. Further, and unlike the instant case facts, that conduct occurred during
work time and the grievant admitted he took the vehicle to his personal residence. Moreover,
grievant's conduct was a deliberate act and arose from a public complaint. In addition, the
damage to property and the grievant's negligence could have had dire consequences. Thus,
Marathon County case is not comparable. In Peoples Gas Light And Coke Co., a one-day
suspension was upheld where the grievant ignored a warning with respect to a rule regarding
It is unclear whether that conduct, which occurred on breaks, was with or without pay.
in that case there was no dispute that the grievant intentionally violated a work rule. In this
alleged misconduct is not only disputed, but also there was no intentional misconduct.
The County's other cases do not support its position and are not comparable. In Park
Geriatric Village, 81 LA 306 (Lewis, 1983), the grievant was discharged for physically
a nursing home patient with a cane. In Safeway Stores, Inc., 78 LA 394 (Jackson, 1982),
was no dispute that a checker did not record six separate transactions nor that the rule that
broken was strict. In Irwin-Willet Home Products Co., Inc., 77 LA 146 (Maniscalco, 1981),
the grievant was discharged for falsely reporting information relating to her absenteeism.
Finally, while the discipline in this case may be considered mild, it is nevertheless
The County has not met its burden of proof of the alleged misconduct. Further, the alleged
against reclining while on unpaid break is inherently unreasonable and contrary to the intent
parties' agreement providing a break. Alternatively, this is a first offense. Since the County
to follow its past practice of recording oral discipline, the conduct which occurred on January
2000, should have only constituted an oral warning.
The first issue is with regard to the Grievant's conduct on January 5, 2000. The
posture is not in dispute. His head was down and forward with his face on top of his arms
tractor's steering wheel. It is also undisputed that the Grievant maintained this posture for 5
1/ with the exception of some "slight" movement from the Grievant's right shoulder.
Grievant was, for the most part, inert during this period. The Union claims that the Grievant
"resting his eyes," as opposed to being asleep, and characterizes this conduct as "reclining."
asserts that the County has not met its burden of proof that the Grievant was actually
County maintains that the inquiry is not whether the County has proved the Grievant was
sleeping, but whether a reasonable person would conclude that the Grievant was asleep.
1/ Duncanson's testimony is that, while
checking his watch, he observed the Grievant from 12:25 to 12:30 p.m.
I agree with the County. I am persuaded that it was reasonable for the County to
the Grievant was asleep and I adopt the general reasoning from General Electric Co., 74 LA
(King, 1979). To adopt the Union's position would virtually require the presence of a
the use of sophisticated equipment to prove a person's state of mind during the period in
It is more reasonable to determine whether someone is sleeping based upon the perceived
of the person in question. In this case, the evidence shows that Duncanson observed the
essentially inert for a sufficient length of time and in a posture where it was reasonable to
that the Grievant was asleep.
I find it immaterial that Duncanson could not see the Grievant's eyes during his
observation. During the hearing, Duncanson demonstrated what he saw and placed his
top of his arms, covering any view to the eyes. Hence, the Grievant's eyes were obscured
Duncanson's view. Further, it is not uncommon for people to close their eyes when in this
and when inert for this period of time. Therefore, I do not find it unreasonable for
conclude that the Grievant was sleeping, despite not having a visual line of sight of the
eyes. Moreover, the fact that Duncanson failed to ask the
Grievant whether he was asleep when initially confronting him does not destroy the
reasonableness of Duncanson's conclusion. Although such an inquiry may have been
such an omission does not undermine the reasonableness of Duncanson's determination.
I agree there is no evidence that Duncanson "ambushed" the Grievant. Duncanson
coincidentally driving to an appointment when he noticed, from a clear vantage, a curious
a Department vehicle idling and facing into a snow bank with a motionless operator inside. I
find it suspect for Duncanson, the Department's head administrator, to inquire into this
addition, there is no evidence that Duncanson was predisposed toward the Grievant. While
Duncanson's reprimand could fairly be described as a stern verbal reproach, the evidence
support a characterization that Duncanson launched into a tirade or that he acted irrationally
The second issue is whether there exists a rule against sleeping during unpaid breaks.
Union claims that there is no such rule. The evidence submitted, however, shows that there
work rules posted on the employee bulletin board which stated, among others: "No sleeping
Park Department vehicle or in public at any time." I find that the phrase "any time" is broad
scope and is clear in its meaning. It specifically prohibits sleeping in a Department vehicle
time. This includes any and all break times. Therefore, the Union's assertion that such a
not exist is without merit. Further, the Grievant testified that he was aware of the posted
contained these work rules. Thus, I also find that the Grievant had notice of the rule.
Breaks are a negotiated condition which serve an important purpose of providing
a time to enjoy a respite from work. The parties' agreement, however, does not expressly
how Department employees are to take breaks, only that the work rules be reasonable.
the next issue is whether or not the instant rule prohibiting certain conduct during unpaid
The County asserts that the rule is reasonably related to a legitimate objective, i.e., a
public perception. I agree that that objective is legitimate. As a public employer, the
justifiably concerned with the public appearance of its employees sleeping inside
vehicles, even when on breaks. A public employee sleeping in a vehicle paid for by
the impression that the public's resources are being squandered. The fact that such conduct
occur during an unpaid time does not lessen the County's exposure and legitimate concern of
adverse public reaction. Article 22 does not establish a certain time for breaks, thus making
possible, and perhaps probable, that Department employees take their breaks at nonuniform
Since the public is usually unaware of when an employee is on break, it is not unreasonable
rule to apply at all times.
I do not agree that the potential for exhaust fumes entering the Grievant's tractor cab
mitigating circumstance. The Grievant testified that there had been an exhaust problem, but
he also testified that this problem was repaired one to two weeks before the incident.
exhaust problem still been a factor as of January 5, 2000, it would seem likely that such
been at the forefront of the Grievant's mind as an explanation for the incident. However, the
Grievant failed to mention this as a possibility to either Duncanson or his immediate
although he had several opportunities to do so, until the parties were well into the grievance
procedure. Therefore, the Grievant's failure to timely notify the County is contrary to the
Finally, the appropriateness of the penalty needs to be considered. Whether or not a
warning was too severe depends upon whether there was any similar conduct for which the
was disciplined. The parties' version of the facts which occurred in December of 1998 were
different. Fiorenza testified that he found the Grievant not moving while inside of a
truck, that he stood at the truck's door for some time, and that he awoke the startled
Fiorenza further testified that he told the Grievant how bad it looks, that the Grievant
couldn't stay awake, and that he told the Grievant not to sign up for that duty if that was the
Following this incident, the Grievant did not sign up for this particular duty using the tank
Finally, Fiorenza testified that he warned the Grievant this conduct "should not happen
Conversely, the Grievant testified that Fiorenza found him resting and dozing in and out.
to the Grievant, Fiorenza said if the Grievant was to doze, to do it somewhere else because
potential for fumes and that this exchange was more of a cautionary concern, as opposed to
of a disciplinary warning. In support of the Grievant's account, the Union asserts that since
County has a past practice of recording its verbal warnings, and since there was no written
of this alleged verbal warning, that the Grievant's version should be credited.
Union witness Sislo testified that he was verbally warned for smoking in a building
Fiorenza and that Sislo should take it as a such. However, there was no evidence that Sislo's
was ever recorded. Further, as Chief Steward, other unnamed employees have informed
they were verbally warned. However, there was no testimony that those warnings were
The Grievant also testified that he was once verbally warned for not wearing his seat belt and
should consider it a verbal warning. However, there was no evidence that such warning was
recorded. Therefore, there is insufficient evidence to find that the County has a past practice
recording verbal warnings.
I accept the County's version of the prior incident in December of 1998 and I am
in general by the demeanor of the County's witness. In addition, and although much of
statements were disputed, it was undisputed that the Grievant no longer performed this
duty of using the tank truck following his verbal exchange with Fiorenza. Fiorenza's
consistent with the Grievant's change of duties and the Grievant did not explain this change.
Moreover, and although I agree with the Union that Fiorenza could have stated "this is a
warning," the statement that the Grievant's conduct "should not happen again" is clear to this
arbitrator that it was a verbal warning.
Given the finding that there was a prior verbal warning of the same nature within
year's time, I do not find that the County's discipline of a written warning was too severe.
the written warning should reflect that the Grievant's discipline was for sleeping in a
vehicle while on an unpaid break, as opposed to sleeping on duty. Therefore, the Grievant's
warning should be amended.
Based upon the foregoing, and the record as a whole, it is this Arbitrator's decision
award that the County had just cause to discipline the Grievant for conduct which occurred
January 5, 2000. However, the written warning should be amended to show that the
disciplined for sleeping in a Park Department vehicle while on an unpaid break. The
Dated at Eau Claire, Wisconsin this 19th day of January, 2001.
Stephen G. Bohrer, Arbitrator