BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CHIPPEWA COUNTY DEPUTY SHERIFF'S
WISCONSIN PROFESSIONAL POLICE
ENFORCEMENT RELATIONS DIVISION
Ms. Victoria L. Seltun, Weld, Riley, Prenn, and
Ricci, S.C., 3824 Oakwood Hills Parkway,
P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of the County.
Mr. Gary W. Gravesen, Bargaining Consultant, Wisconsin
Professional Police Association, Law
Enforcement Employee Relations Division, 16708 South Lee Road, Danbury, Wisconsin
appearing on behalf of the Union.
Chippewa County, hereinafter referred to as the County, and the Chippewa County
Sheriff's Association, Wisconsin Professional Police Association/Law Enforcement Relations
Division, hereinafter referred to as the Union, are parties to a collective bargaining
provides for final and binding arbitration of grievances. Pursuant to the parties request the
Employment Relations Commission appointed Edmond J. Bielarczyk, Jr. to arbitrate a
the suspension of an employee. Hearing on the matter was held in Chippewa Falls,
September 11th, 2001. Post-hearing arguments were received by the
undersigned by November 16th,
2001. Full consideration has been given to the testimony, evidence and arguments presented
rendering this Award.
The parties agreed upon the following issue:
"Did the County have just cause to suspend the grievant
for one (1) day without pay?"
"If not, what is the appropriate
. . .
ARTI CLE 7 DISCIPLINE AND
Section 1 Just Cause: The County will
discipline or discharge any employee without
just cause. Warning notices shall be given when required by established approved County
Copies of such warning notices shall be given to the employee, Personnel Director and the
Department Head. The warning notice must be issued within 30 days of said complaint.
verbal reprimand is given to an employee and it is noted for the record, the employee and
will be required to initial and date the incident.)
. . .
PERTINENT WORK RULES
4.62 WORK RULES
An employee may be disciplined
for just cause, including violations of County work rules.
The following list provides some examples. Individual departments may have additional
Discipline for violations varies according to degree, but may include oral warning, written
suspension without pay, or discharge.
. . .
Reporting to work under the influence of
drugs or alcohol.
. . .
SHERIFF DEPARTMENT POLICIES AND
A deputy will not operate any sheriff's office
vehicle if that deputy has consumed any amount
of alcohol and will not be used when patronizing an establishment whose primary
business is the sale of intoxicants. No office mamember will operate any sheriff's
office vehicle with a (BAC) Blood Alcohol Concentration greater than .00.
. . .
Amongst its various governmental functions the County operates a
it employs Investigator Mark Martens, hereinafter referred to as the grievant. The grievant
twenty-nine (29) year employee. On April 9th, 2001 the grievant was off
duty. At 5:00 p.m. he
received a call from Sergeant Kenneth Oemig requesting him to report to the scene of a
grievant declined based upon the fact he had been drinking. The grievant ceased drinking
call and went to bed that night at approximately 10:00 p.m. At approximately 11:00 p.m.
Folska was contacted by the County's dispatch center informing him that there was a need
investigator. Folska directed the dispatch center to go down the list of employees starting
grievant. At approximately 11:15 p.m. the County's dispatch center contacted the grievant's
residence where his son answered. His son informed the dispatch center his father was
bed. The son was directed to wake his father. When the grievant came to the phone the
center requested he respond to the scene of a suicide. At this time the grievant believed he
was in a
position to take the call went to the scene.
When the grievant arrived at the scene Coroner Kay Gerrits and Sergeant Robert
where there. Gerrits noticed what appeared to be the odor of an intoxicant on the grievant
informed Cunningham of the matter. Cunningham contacted Lieutenant Gene Gutsch. When
arrived at the scene he also noticed the odor of intoxicant on the grievant. Gutsch requested
grievant accompany him to his squad car. Therein Gustsch requested the grievant to blow
preliminary breath test device, (Portable Breath Testing or PBT device). The grievant agreed
so and the device measured 0.04. Gutsch instructed the grievant to secure his squad car and
the grievant a ride home.
On April 9th, 2001 the following disciplinary letter was sent to the
April 9, 2001
Mark J. Martens
320 Portland Ave.
Chippewa Falls, WI 54729
Re: Statement of Charges
I am, by this letter, giving you formal
notice of the summary of charges as follows: On Monday,
April 9, 2001 you were called to the scene of a suicide at 3286 90th Ave in
the township of Howard.
While on the scene Coroner Gerrits thought you smelled of an intoxicant. She voiced her
to Sergeant Cunningham who in turn contacted Lt. Gutsch. Lt. Gutsch proceeded to the
spoke with you regarding the concern and asked if you would blow into a PBT which you
do. The reading of the PBT at 12:58am on April 9, 2001 was .04. Lt. Gutsch
instructed you to
secure your car at the scene and he gave you a ride home.
County work rule 4.62 (19) states "An
employee may be disciplined for just cause including, but
not limited to, the following infractions of work rules: (19) Reporting to work under the
of drugs or alcohol." In addition, section 803.10(K) of the Chippewa County Sheriff's
policy and procedure manual states, "A deputy will not operate any sheriff's office vehicle if
deputy has consumed any amount of alcohol and will not be used when patronizing an
whose primary business is the sale of intoxicants. No office member will operate any
vehicle with a (BAC) Blood Alcohol Concentration greater that (sic) .00"
I am recommending to the Grievance
Committee you be suspended for 1 working day. If you
choose tor equest a hearing within the allotted 3-week time limit per State Statute 59.26(8)(b)
may do so. Otherwise, the Grievance Committee will be hearing this case at a date chosen
committee. At such hearing appropriate discipline action will be determined.
Doug Ellis /s/
Thereafter the matter was grieved and processed to arbitration in accord with the
At the hearing the grievant testified he did not want to
remove a bullet from the ceiling at
the crime scene while the family was present. At the hearing Gutsch testified he was
unaware the grievant had turned down a previous call-in. The record also demonstrates
that results of a PBT device can not be used in court, that extraneous factors such as:
temperature of the device, volume of breath, medical condition, condition of the battery,
radio frequency and cleaning from a previous test can impact on the device's results. At
the time of the incident the Chippewa County Sheriff's Department did not have a
procedure for regularly calibrating the PBT device. There is no evidence that since its
purchase that the PBT device used by Gutsch had ever been calibrated prior to testing the
grievant. Gutsch also testified he did not turn off his squad car radio when he tested the
The County contends it had just cause to impose a one-day suspension on the grievant
violation of County work rules of which he had adequate notice. The County asserts it had a
legitimate disciplinary interest in the grievant's conduct on April 9, 2001. The County points
County work rules expressly prohibit any County employee from reporting to work under the
influence of drugs or alcohol. The County also points out that Sheriff's Department
prohibited from operating any vehicle if the employee has consumed any amount of alcohol
a blood alcohol concentration of greater than .00 (zero tolerance).
The County asserts the Grievant was not ordered to report and was under no
report. The County argues that the grievant was asked to report and he indicated he would
though he had consumed lawful alcoholic products within the previous six hours. The
asserts that the grievant exercised poor judgement on April 9, 2001 and that the County has a
legitimate disciplinary interest in that conduct/poor judgement. The County stresses that the
grievant's off duty conduct became a County disciplinary matter when the grievant reported
while still under the influence of alcohol and with the presence of alcohol in his system.
The County also argues that whether the grievant felt he was in a condition to
irrelevant. The grievant reported to work with alcohol in his system and he therefore
County's and Sheriff's Department work rules. The County also argues it is the Union's
demonstrate that the dispatch center was aware the grievant had turned down a previous call
the fact he had been drinking. The County further argues that employees are well aware of
inappropriateness of reporting to work in a condition that is the result of the consumption of
that impairs work performance. The County stresses the grievant was aware of, and
The County also asserts it did a thorough investigation, pointing out that Gutsch
personally detect the odor of alcohol, administered the PBT test, is certified to administer the
that Gutsch concluded there was a presence of alcohol in the grievant's system. The County
that Gutsch, along with two other witnesses (Cunningham and Gerrits), together with the
PBT test result, concluded the grievant had violated County work rules. The County
Union has failed to demonstrate that Gutsch's investigation was flawed in any respect
The County also contends that there is no evidence introduced by the Union that
demonstrate the PBT device did not accurately detect alcohol on the grievant. The County
argues the level of intoxication is irrelevant. What is relevant is the fact the PBT device
presence of alcohol. The County, in acknowledging it did not perform a chemical test of the
grievant's blood, argues a presumption can be made that any such test would of resulted in a
in excess of .00. The County also points out it was not attempting to establish legal
whether the grievant had violated a clearly enunciated work rule.
The County also asserts the one (1) day suspension is a reasonable penalty given the
of the grievant's actions.
The Union contends the County did not have just cause to suspend the grievant for
The Union argues the County failed to properly investigate the matter prior to taking
action and that the County failed to conduct a fair investigation. The Union points out the
grievant is alleged to have violated requires that the employee not have a Blood Alcohol
Concentration (BAC) higher than 0.00. The Union asserts a PBT device cannot measure the
of an employee and points to the unrefuted testimony of Deputy Jeff Hanzlik in support of its
position. The Union also points out that Gutsch acknowledged he did not require the
grievant to take
a blood test on April 9th, 2001.
The Union also argues that existing statues prevent the use of PBT devices in motor
violation cases and such results cannot be used as evidence of legal intoxication. The Union
out the County's PBT devices are not calibrated on a regular basis. The Union points out
testified that it was possible to get a false reading on a PBT device if it had not been
Union also points out that County witness Captain James Clark testified it was possible to
odor of an alcoholic beverage on someone's breath and still test at .00.
The Union stresses there is no evidence the grievant did anything but a professional
Union points out Gerrits testified the grievant did an appropriate investigation except for the
of the bullet from the ceiling.
The Union also argues that it was reasonable for the grievant to assume that since the
had knowledge of his prior refusal the County was comfortable with his responding over six
later. The Union points out that if the grievant had not felt he was fit for duty the second
would of so told the dispatch center. The Union argues it was reasonable for the grievant to
that information concerning his first denial would be passed on. The Union asserts the
aware of the rules but that he also felt an obligation to the County so he responded to the
because he believed he was fit for duty. The Union argues the County waived any right to
the grievant because the County was aware of the grievant's initial refusal to report to duty.
The Union would have the undersigned sustain the grievance, direct the grievant be
whole and cleanse his record.
In determining to discipline the grievant the record demonstrates the County cites two
rules. Therefore, in order for it to prevail the County has the burden of demonstrating the
violated both. Thus, the County must demonstrate the grievant was under the influence of
and the County must demonstrate the grievant operated a squad car after consuming any
matter arose when Coroner Gerrits smelled alcohol on the grievant's breath. She was also
because the grievant was not concerned about a bullet in the ceiling. She contacted
contacted Gutsch. Gutsch relieved the grievant from duty and drove him home. While the
has clearly demonstrated the grievant smelled of alcohol, there is no evidence the grievant's
was influenced by alcohol. While Sheriff Douglas Ellis reported that the victim's daughter
informed him on June 28th, 2001 that the grievant had been rude, this
differs from the written
statements of the victim's sons. One of the sons of the victim wrote " very consoling officer
telling us if we find any evidence to give him a call (Jt.7 A). Another son wrote "The
was helpful however he smelled of alcohol." (Jt.7 B). The fact the grievant showed no
Gerrits about a bullet in the ceiling does not lead by itself to a conclusion that the grievant
the influence of alcohol. Particularly when the grievant testified he did not want to remove
in the presence of family members and he was relieved of his duties prior to the completion
The County does have, as it has argued, a legitimate disciplinary interest if
to work under the influence of alcohol. However, it has the burden to demonstrate the
conduct was influenced by alcohol. The only evidence herein is he smelled of alcohol. That,
of itself, is insufficient to establish the grievant was under the influence of alcohol. There is
evidence the grievant acted unprofessionally, slurred his words, or was clumsy in his actions.
only demonstrative evidence is that the grievant smelled of alcohol and tested 0.04 on the
device. This is insufficient to establish the grievant was under the influence of alcohol. The
undersigned therefore concludes the County has failed to demonstrate the grievant reported to
under the influence of alcohol.
The record also demonstrates the grievant was aware of the work rule prohibiting the
operation of department vehicles if the employee consumed any amount of alcohol. The
facts are the
grievant had consumed alcohol, his breath smelled of alcohol consumption, and he tested
alcohol on a PBT device. The standard the Sheriff has established is no consumption if you
operate Sheriff's Department vehicles. Such a standard is not unreasonable given the type of
performed by department employees. No matter how lofty the grievant's motives for
respond to a call-in, or, no matter the County's failure to communicate the grievant's earlier
communications center staff, the grievant was aware of the work rule and he opted to
is no question he had consumed alcoholic beverages. The undersigned therefore concludes
grievant violated the work rule prohibiting the consumption of any alcohol and also operating
Sheriff's Department vehicle
The undersigned notes here that while the Union has gone to great lengths to
veracity of the PBT device, the device does give an inference that there is alcohol in the
Given this inference, the fact the grievant acknowledged he had been drinking, and the fact
grievant smelled of alcohol consumption, it is reasonable for the County to conclude there
alcohol in the grievant's blood. While the PBT device inference can not be used in
proceedings involving motor vehicle violations, the narrow use herein is in the determination
As noted above the County disciplined the grievant for violating two specific work
County did not have just cause to discipline the grievant for reporting to work under the
of alcohol. The County did not have just cause to discipline the grievant for operating a
Department vehicle after he had consumed alcohol, even though this may have occurred
after the grievant had ceased drinking. The grievant was aware of the work rule, however,
County was aware the grievant had declined to come into work earlier because he deemed
unfit for duty. The undersigned therefore concludes, based upon the above and foregoing,
testimony, evidence and arguments presented that the grievant's discipline be reduced to a
warning for violation of section 803.10(K) and that he be made whole for any lost wages and
The County did not have just cause to suspend the grievant for one (1) day.
The County is directed to make the grievant whole for any lost wages and benefits
reduce the grievant's discipline to a written warning for violation of Sheriff's Department
Procedures, Section 803.10(K).
Dated at Madison, Wisconsin, this 12th day of February, 2002.
Bielarczyk, Jr., Arbitrator