BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BROWN COUNTY SHELTER CARE
LOCAL 1901-F, WCCME, AFSCME,
BROWN COUNTY (SHELTER CARE)
(Edward Zenko Termination)
Mr. Mark DeLorme, Staff Representative, Wisconsin Council
40, AFSCME, 2010 Memorial Drive, #206, Green Bay, WI 54303, appearing on behalf of
Mr. John Jacques, Acting Corporation Counsel, 305 East
Walnut Street, Green Bay, WI 54305-3600, appearing on behalf of Brown County.
Pursuant to the provisions of the collective bargaining agreement between the
Brown County Shelter Care Employees, Local 1901-F, AFSCME (hereinafter referred to as
Union) and Brown County (hereinafter referred to as the County) requested that the
Employment Relations Commission designate Daniel Nielsen to serve as arbitrator of a
regarding the discharge of Edward Zenko (hereinafter referred to either by name or as the
The undersigned was so assigned. A hearing was held on February 10, 2003, at the Brown
Shelter Care facility in Green Bay, Wisconsin, at which time the parties were afforded the
opportunity to present such testimony, exhibits, other evidence and arguments as were
the dispute. A transcript of the hearing was received by the undersigned on February
parties submitted post hearing briefs and reply briefs, the last of which was received on April
whereupon the record was closed.
Now, having considered the testimony, exhibits, other evidence, contract
arguments of the parties and the record as a whole, the undersigned makes the following
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 agree that the issues before the Arbitrator are:
1. Did the County have just
cause to terminate the Grievant?
2. If not, what is the
The collective bargaining agreement provides that employees may be discharged for
cause, and further states that sleeping on the job is grounds for immediate termination,
recourse to progressive discipline. The contract further provides that the Employer may
enforce reasonable work rules.
The Employer provides general governmental services to the people of Brown
Wisconsin. Among these services is the operation of the Brown County Shelter Care Center
risk minors placed there by the juvenile court. The Shelter Care is subject to regulation by
of Wisconsin, and is responsible for complying with applicable statutes and administrative
provisions. James Hermans is the Superintendent of the Shelter Care and Steve Felter is a
Supervisor. The Union is the exclusive bargaining representative for the Center's staff. The
Grievant, Ed Zenko, was employed as a Shelter Care worker beginning in 1997. He posted
full-time position in March of 2001, generally working the 4:00 p.m. to midnight
shift, until he was
discharged on February 27, 2002.
On January 5, 2002, Derek Lutz, a part-time Shelter Care worker, approached Felter
him about an incident the prior August or September. According to Lutz, he had worked as
coverage on a shift with Carrie Mileski and Ed Zenko. During the shift, Zenko said he was
the conference room to take his break. Zenko went to the conference room and napped for
approximately 50 minutes. Breaks are only supposed to last for 20 minutes. Lutz said that
Mileski after 20 minutes if they should summon Zenko from his break, and she told him to
alone because he had been driving all day on his other job. Zenko remained in the
for approximately 50 minutes. Felter asked why he had not come forward with this
earlier, and Lutz said he had mentioned it to him after it happened. Felter said he did not
Felter subsequently re-interviewed Lutz, and interviewed Mileski and Zenko.
the County's write-up of the interview, Lutz reviewed his time cards and determined that the
date for this incident was August 29, 2001, since he recalled staying later than usual, and
showed him punching out at 10:30 instead of 9:30 p.m. as he normally would. In that
said he recalled that Zenko went on break at approximately 9:20, after the bedtime for the
and stayed in the conference room, laying in a fetal position on the couch for approximately
According to the County's write-up of her interviews, Maleski said that she routinely
tabs on her co-workers when they were on break, though she did not time them. Mileski
Zenko typically did not take breaks at all, but if there was extra staff on duty and he had a
he would usually take a 20 minute break in the conference room. She said she had known
him to lie
on the couch to rest his eyes, but did not know if he was sleeping. She said he had never
30 minutes in the conference room, much less 50 minutes. She said she had no recollection
ever telling her that Zenko's break was up, and that she would not have told anyone that they
let him stay on break for more than 20 minutes.
According to the write-up of his interview, Zenko said he knew there was a rule
sleeping on the job, and admitted that he would sometimes go to the conference room, lie on
couch, rest his eyes and relax during his breaks. If he had a headache, he would turn the
and close the door. He said he had no recollection of falling asleep or waking up at any time
he was working for the Shelter Care.
On February 27th, Hermans issued the findings of the investigation,
in which he concluded
that, on "approximately August 29, 2001" Zenko was guilty of sleeping on duty, which is
for immediate termination. He also found him guilty of violating the work rules directing
"Don't lay down or recline on resident couches" and "Don't sleep on the job at any time."
terminated Zenko's employment. The instant grievance was filed protesting the discharge.
not resolved in the lower stages of the grievance procedure and was referred to arbitration.
hearing on February 10, 2003, in addition to the facts recited above, the following testimony
Derek Lutz testified that he was currently employed by two social services agencies,
by Brown County Shelter Care. He stated that on August 29th, he worked
from 2:45 to 10:30 p.m.
with Zenko and Mileski. He recalled the date after the County showed him time cards in an
to determine what the specific date was when the incident might have taken place. He
incident to a supervisor shortly afterwards and then told Felter about it in January of 2002.
According to Lutz, he saw the Grievant lying on a couch, curled up in the fetal position with
lights out. He saw him once through the glass in the door, but could not see his eyes, so did
know if he was asleep. He mentioned to Mileski that the
Grievant's break was up, and she replied that he had a headache and they should let
him rest. Shown
his prior statement, he agreed that Mileski mentioned he had been driving that day, but he
said he was
not sure that Mileski said they should let him sleep. He believed she said "rest." Lutz said
not tell if the Grievant was snoring, because the door was closed, but that he was motionless
he looked in. While the Grievant was in the conference room, Lutz recalled making four
bed checks of the children.
On cross examination, Lutz said he had no direct recollection of the date of the
concluded from the time cards that it was August 29th. He said that
employee breaks are typically
taken in the conference room, unless the employee goes outside to smoke. Lutz said he
was a rule against reclining on resident couches, but expressed the opinion that the couches
conference room were not resident couches, and he knew of no rule against laying on them.
Lutz agreed that he had been nervous when the managers interviewed him. Asked
he had ever told another employee, Kathy Beeson, that he was concerned that his written
was inaccurate because he had been nervous, Lutz said he did not recall ever speaking with
about this matter.
Lutz said the Grievant took his break after the children's bedtime, which he placed at
p.m. Lutz was shown a copy of staff meeting minutes from October 10, 2001, stating that
quiet times have been eliminated and replaced with an earlier bedtime. Bedtime will be 9 pm
earned points and 8 pm early bedtime." Lutz explained that earned points are a reward for
behavior, and that those who do not earn points must go to bed earlier. Lutz said he did not
when the change to 9 p.m. took place. He estimated that it takes anywhere from 15 to 20
to actually get the children to bed after the bedtime, and that if bedtime was 10 p.m. there
have been 50 minutes between bedtime and the point at which he punched out. Lutz agreed
after the Grievant was terminated, he applied for the Grievant's full-time job and received it.
On redirect Lutz reiterated that he had a clear recollection of the Grievant being on
45 to 50 minutes, and that he was lying on the couch in the conference room with the light
the door closed. He also clearly recalled Mileski telling him not to disturb him because he
had a long
day of driving. On re-cross examination, Lutz said he also recalled that the Grievant said he
taking his break shortly after bedtime.
Carrie Mileski testified that she had no specific recollection of a date on which she
the Grievant lie on a couch with the lights off and the door closed, but that he had done so
on a few
occasions when he was suffering from a headache. On those occasions, he would tell her
that he was
going to rest his eyes. She assumed from this that his eyes would be shut, but she said she
seen him with his eyes shut.
Mileski stated that she, Zenko and Lutz would often work together, with Lutz on as
additional staffing. She said she could not recall ever being told by Lutz that the Grievant's
was over, or telling Lutz that he should let be because he was tired from driving, and she
said she did
not think she would say that. She said she had never had to go and fetch the Grievant from
Mileski said she was aware of a rule against reclining on resident furniture, but said
think that was applicable to break time. Mileski was not able to recall when the bedtime
On cross-examination, Mileski said she had never seen the Grievant sleeping on the
had she known him to extend his breaks. She said he rarely took breaks. Maleski said that
the minutes of the October staff meeting refreshed her recollection that the change from a 10
bedtime to a 9 p.m. bedtime took place in October. She explained that she pegged the
bedtime as 9
p.m. in her earlier statements because that was the bedtime when she made the statements,
did not remember that it had changed between August and January.
Mileski said that the couches in the conference room would not normally be used by
because the children were not normally in the conference room. She recalled that Lutz and
employee posted for the opening created by the Grievant's termination, and that Lutz was
the job. She also recalled Kathy Beeson mentioning that she had spoken with Lutz and that
her he was concerned that his statement might not have been accurate.
On re-direct examination, Mileski said that Lutz only kept the Grievant's job for a
a half or so, because the hours were too difficult to coordinate with his college classes. On
of Beeson's conversation with Lutz, Mileski could not say exactly when it had occurred but
that Beeson said Lutz told her he had been made fearful for his job when he was interviewed
managers and that his statements might not be accurate.
Mileski said the couches in the conference room were there for staff use, and also for
family visits and meetings with social workers. She said that residents would use the
room on a daily basis, and that sometimes children on a courtesy stay, who were not
to the Shelter Care, would be allowed to sleep overnight in the conference room.
Mileski said that the Grievant would only lie down with the lights out when he had a
headache, and that it did not happen very often. Asked if he only did it when a supervisor
on the premises, Mileski said that the supervisor usually left at 10:30 p.m. but that she did
of an instance in which he had laid down while there was a supervisor present.
James Hermans testified that he had been the Superintendent of the Shelter Care
1994. He said that he had couches brought into the conference room in 1997 to provide a
comfortable environment for families and social workers to meet with children. Hermans
said the he
had seen staff sit on the couches during meetings, but had never seen any staff member lie
on one of
the couches. He stated the rule against reclining on resident couches was put in place in the
mid-1990's, and was meant to ban all reclining on all couches in the facility. As with the
sleeping and extending breaks, the rule is intended to insure that staff are at all times
providing a high
level of supervision to the residents and are always available to assist other staff in the event
emergency. To that end, staff members going outside for their breaks are required to carry
radios, so they can be summoned if need be. Hermans noted that the Staff Positioning policy
staff members to keep themselves at all times in a position to observe what is happening with
residents. Hermans said that all workers were oriented on the rules when they were hired.
Hermans testified that he decided to terminate the Grievant. He noted that the
a prior one-day suspension in effect at the time, and that he had broken the rules of the
made himself unavailable to provide supervision for the children. He said he had given the
every opportunity to respond to the charges, and that the Grievant had denied extending his
but admitted to sometimes laying on the couch with the lights off and eyes closed if he had a
headache, although he said he could say if August 29th was one such
occasion. Hermans relied on
the statements of Derek Lutz, whom he had no reason to doubt.
On cross-examination, Hermans said he had never designated certain couches as
couches and others as non-resident couches, and that an employee would be foolish to think
was a difference between couches. He also characterized the conference table and chairs as
Hermans conceded that he had no personal knowledge of events and that he was
the statements of the employees interviewed during the investigation. He said the Grievant
putting himself in a position where he was likely to fall asleep, and based on the fact that he
minutes over his break time, Hermans concluded that he actually had been asleep. The
not directly deny extending his breaks, saying merely that he could not recall ever going over
minutes. Hermans found his admission of multiple violations of the rule against reclining on
furniture significant, as well as the March, 2001, suspension he had received for failing to
residents who left during his shift, and instead passing that logging chore to the following
was also impressed by Lutz's recollection that he made four bed checks while the Grievant
break. Hermans conceded that bed checks are not supposed to follow a strict ten minute
that the four bed checks were not mentioned in any documents supporting the discharge.
Stephen Felter testified that he is the unit supervisor for the Grievant's shift, and he
customarily works from 2:30 to 10:30 p.m. Saturday through Wednesday. August 29,
a Wednesday, one of his regular workdays, but he had no recollection of being on duty that
When Lutz came to him in January, he asked why he had not come forward earlier, and Lutz
to have told him about it shortly after the incident. Felter said he had no recollection of any
conversation, and Lutz said he might have said it in a joking way that would not have made
Felter testified that the rules against reclining on furniture applied to any laying down
working, including laying on the floor, and were intended to insure that staff were always
adequate supervision and available to assist other workers if need be. He said that all
resident couches because they are intended for resident use.
Felter said that bedtimes were changed from an early bedtime of 10 p.m. and an
bedtime of 11 p.m. to 8 p.m. and 9 p.m. respectively to allow for more sleep for the
On cross-examination, Felter said that he was not sure when the bedtime changed.
that he never specifically told employees that all couches were resident couches or that
anything would violate the rules, but expressed the opinion that it was commonly understood
laying down anywhere on the premises would be permitted.
Felter said that Lutz did not seem intimidated when he spoke with him in January of
and had not complained of feeling any pressure. He agreed that staff were trained not to do
at precise ten minute intervals. Ten minutes is the maximum interval, but he advised staff to
at shorter intervals, varying the time so that the children would not be able to make out a
Felter said that he would normally have been at work until 10:30 on August
29th, and did not know
of a reason why he would not have been, unless his schedule had been adjusted for a
On re-direct examination, Felter said he had issued four or five suspensions to the
during his career, although the March, 2001, suspension was the only one still in effect at
of this incident. On re-cross, he agreed that the prior discipline was principally for
deficiencies and failure to follow proper procedures.
Richard DeBroux testified that he owns a delivery service and employs Ed Zenko as
subcontractor. He reviewed his records, and stated that on August 29, 2001, Zenko made a
in Pewaukee at 11:00 a.m. and delivered the package to DePere at 1:15 p.m. DeBroux said
County first requested this information from him around end of 2002 or beginning of 2003.
Kathleen Beeson testified that she is an on-call Shelter Care Worker. She stated that
at a shift
change after the investigation was conducted, she overheard Mileski and Lutz talking, and
complained that some of the statements in her written statement were not correct. Lutz then
Beeson that he had been scared and had felt pressured during his interview, and that he
double-check his statement. He was very anxious about being involved in the matter and she
that if he was not certain the statement was accurate, he should get a copy of it.
Beeson said that she subsequently had a meeting with Felter, in which Felter said he
concerned that she was intimidating Lutz. She told Felter she was simply telling him to be
was accurate, and she denied trying to intimidate him. She, Felter and Lutz met in the office
afterwards and she asked Lutz if he felt at all intimidated by her, and Lutz said he did not
everything was fine. Beeson said that since that time, she has spoken with Lutz on several
occasions away from work, and he has said that the management interviewers suggested to
they already knew everything, and asked him leading questions. He told her he feared for
his job, and
just agreed with whatever they said. Beeson said that Lutz left the employ of the Shelter
Care in late
2002, and that Lutz said he left under pressure from management over an incident with a
On cross-examination Beeson admitted that she and Zenko were friends, though she
was friends with most of the staff. She said she and the Grievant were not particularly close,
they spoke perhaps twice a month. She denied that she went to Lutz on the Grievant's
said it was he who broached the subject of the investigation and expressed his concerns to
her as a
friend. She expressed surprise that Lutz had testified as he did at the arbitration hearing
had told her he was going to admit that he did not know if the Grievant was sleeping, or how
he was in the conference room. Beeson stated she was contacted about testifying a month
the hearing when the Union's Staff Representative contacted her following a conversation she
with Maleski. She agreed that she did not go back to Felter with the information, but
she felt he was already aware of most of it through their meeting with Lutz.
Edward Zenko testified that he had never slept on the job, and that he had no
ever having extended his breaks. He agreed that he had driven to Pewaukee and back on
before reporting to the Shelter Care, but he said that was not a particularly difficult or tiring
he denied that he ever came to work too tired to do his job. Zenko conceded that he would
sometimes take his break on the couch in the conference room, but said that he did not know
was a rule violation. While he understood that staff could not lie on the couches in the
areas of the building, no one had ever said
that the couch in the conference room was off limits. The conference room was the
area, and he assumed the couch was available for everyone's use. He did not believe he had
Hermans during the investigation that he knew laying on the couch was a rule violation.
Zenko said that when he was questioned about this incident, no one could even tell
date they were talking about. Assuming it to have been August 29th, that
would have been just before
school started, and the bedtime would still have been 10:00 p.m. He estimated that it takes a
minimum of 10 minutes to get the children to bed, although sometimes it could take much
The amount of time required to make bed checks could also vary, depending on the situation.
children were being disruptive, the checks would be done at shorter intervals, and four
be done in as little as 20 minutes.
On cross-examination, Zenko said he was on friendly terms with Kathy Beeson, and
discussed his case with her. He said they were not close friends, but that he had attended a
her house, helped her shop for a car and lent her his truck once when her car broke down.
He is also
friends with Mileski, and once sold her a dishwasher, and helped her purchase a snow
Zenko said he went full-time with the Shelter Care in early 2001, having worked
since 1997. He conceded that he had been disciplined in the past and had not grieved any of
discipline. The March, 2001, suspension was for not documenting residents leaving the
did not file a grievance over the suspension, though he claimed that he spoken with the
shift members and they said they would document the resident movement. He acknowledged
the suspension notice said that further infractions could lead to discipline including discharge.
Zenko acknowledged that he had, more than once but fewer than five times, lain on
in the conference room during his breaks. He said he only did this when he had a headache,
he would customarily turn out the lights and close the door, though he had also lain on the
the lights on and his eyes closed. He said he did this to rest his eyes, and he denied
sleeping. He said
he knew it was against the rules to lay on couches in the resident area, but did not think
anything wrong with doing it in the conference room, so long as the staff member was still
to respond to an emergency. He also said, however, that he while he had known other staff
to recline on furniture other than couches with their feet up, and to shut the door to the
room, he was not aware of anyone else who reclined on the couch or who turned the lights
their breaks. Zenko said he did not really monitor what other people did on their breaks,
have no reason to be in the area of the conference room unless he was on his break.
Zenko agreed that his statement to the County during the investigation was that he did
recall sleeping and waking up, but he said that what he meant by that was that he had not
He said he was not aware of any grudge by Lutz against him, but that Lutz's
testimony about the length of his break on August 29th was simply
untrue. He said that he did not
know who might have been behind the false accusation but he'd been told that a former
named Danielle might have pressured Lutz into making the accusation, because she hated
agreed that he had told other people that he might sue Lutz for defamation for lying about
denied this was an effort to pressure Lutz to change his story.
Zenko acknowledged that breaks were paid time and that if a break was interrupted
allowed to take it later. He also agreed that a staff member who felt ill could call in an
or, if one was already on site, ask that worker to stay for the entire shift. He recalled one
in which he asked Lutz to stay for him, but Lutz begged off citing homework. He did not
that was August 29th. He again stated that he had driven to Pewaukee on
August 29th, but he said
that was a routine trip, and that many of his deliveries were in the Milwaukee area.
James Hermans (recalled in rebuttal)
On rebuttal, James Hermans denied that he ever pressured Lutz in any way, and said
spoke with Lutz directly about the Zenko matter. Hermans said that, to his knowledge, Lutz
been given copies of his statements to the investigators and was well aware of what the
said. He denied pressuring Lutz into resigning, and said Lutz had been a very good
left for a better opportunity. Hermans also denied pressuring Mileski in any way and said
given copies of her statements.
On cross-examination, Hermans denied that there was a possibility that Lutz felt even
unintended pressure from management.
Stephen Felter (recalled on rebuttal)
Stephen Felter denied that he pressured either Lutz or Mileski in any way. He said
that to his
knowledge, Maleski and the Grievant were social friends, and that Maleski had also been
for this incident. That discipline was the subject of separate pending grievance. On
cross-examination, Felter recalled meeting with Beeson and Lutz after Lutz said he felt
pressure from her
and others to give over a copy of the statement he'd given management, and that people were
a former employee named Danielle had put him up to making accusations against the
told Lutz he had no obligation to speak with anyone about these matters or to give them any
information. After that, he met with Beeson and Lutz. He could not recall the specifics of
meeting, but he did recall that each said they had no problem with the other. Felter said he
know whether Lutz had a copy of the statement, but acknowledged that Lutz testified during
arbitration that he did not.
Additional facts, as necessary, are set forth below.
POSITIONS OF THE PARTIES
The Initial Brief of the County
The County takes the position that the Grievant was terminated for just cause. The
admits that he reclined on the resident couch in the conference room on the evening of
2001, for a minimum of 20 minutes with the lights out, and also admitted that he had done
this at least
four or five other times. He also admitted that he only did this at times when the supervisors
not present at the facility. This alone established just cause for discipline inasmuch as there
is a clear
rule against reclining on resident couches, and he clearly knew it was wrong. The evidence
establishes that he remained on the couch for much longer than the permitted 20-minute
Witnesses put his time in conference room at 45 minutes or more. Further, a person lying
on a couch, in the dark, in the fetal position for an extended period of time must be
presumed to have
been sleeping. It is the most reasonable inference that can be drawn from the observations of
onlookers. It is buttressed by the fact that Derek Lutz, a co-worker with no axe to grind,
that Carrie Mileski told him not to awaken Zenko because he was tired from driving all day
The Union's arguments regarding the facts of this case are misleading and incredible.
Union claims that there is no evidence that Zenko extended his breaks because he denies
Yet, Lutz testified that Zenko was on the couch for 45 to 50 minutes, and that he performed
of the required 10-minute checks of the children while Zenko was in the conference room.
detailed recollection is more believable than Zenko's general denial. The only rebuttal
offered by the
Union was a vague rumor that Lutz was in cahoots with a former employee named Danielle
hated Zenko. An amorphous and unsubstantiated rumor cannot overcome the credible and
testimony of an eyewitness. The County notes that Zenko claimed in January, 2002, only
that he did
not recall extending his breaks and/or sleeping on the job. At the arbitration hearing, he
both charges. The Arbitrator must weigh this evolution in his memory in discrediting his
As for the Union's claim that the couch in the conference room is not a residents
because it is sometimes used by staff members during meetings, this is nothing more than
for the purpose of obscuring Zenko's failure to be in a position to respond to emergencies, as
required "at all times" of Shelter Care workers. Whatever label one attaches to the couch, it
that Zenko was in no position to provide any service to children, much less to respond to a
Finally, the County urges the Arbitrator to discount the rank hearsay offered by
in an effort to discredit Lutz. Beeson was not a witness to anything on August
Beeson claimed that Lutz later told her he wasn't sure what he saw, and that answers had
suggested to him during the investigation and he had felt pressure to corroborate them.
testified at the hearing, he said no such thing and was not even asked about it by the Union.
Union waited until Lutz was gone to put Beeson's testimony on. It is rank hearsay and
possibly be allowed to overcome the sworn, direct and credible testimony of Lutz.
The Shelter Care has rules prohibiting extending breaks, reclining on resident
sleeping on the job. The latter is recognized in the labor agreement as grounds for
discharge. All three of these rules are reasonable and necessary if the Shelter Care is to
statutory mission of providing constant and vigilant care for a difficult, high needs population
young people. The Grievant violated those rules. Given his prior disciplinary history and
of his conduct, discharge is the appropriate response. For these reasons, the grievance must
The Initial Brief of the Union
The Union takes the position that the Grievant was not terminated for just cause and
must be reinstated and made whole. The Union argues that the proceedings against the
grossly unfair, amounting to a denial of due process, since the alleged offense occurred in
of 2001, and the investigation was not begun until late January of 2002. This is despite
recollection that he mentioned this to Steve Felter shortly afterwards and got not response.
Management's failure to respond until long after the alleged events seriously prejudices the
After this five-month delay, the Grievant was asked if he took more than a 20-minute
and he honestly answered he could not recall doing so. Indeed, he had little recollection of
at all, nor did the other witnesses. The testimony is replete with people admitting they had
recalling what did or did not happen on the night of August 29th. The
County itself felt it necessary
to say the alleged offenses took place "approximately" on
August 29th. All of this puts the Grievant
in the very unfair position of being essentially unable to defend himself. On that basis alone,
Arbitrator should reverse the discharge decision.
On the merits of the case, the Union observes at the outset that the County has the
proving the two charges against the Grievant reclining on a resident couch and
sleeping on duty.
In order to meet that burden, the County must prove the conduct and prove that the conduct
discharge rather than some lesser response. It has failed to meet either burden.
The principle charge against the Grievant is that he was sleeping on the job. He has
steadfastly denied this charge, and there is no persuasive proof that he did so. At most, the
case depends upon circumstance and suspicion. Derek Lutz testified that he saw the Grievant
on a couch, but admitted that he could not see his eyes and could not tell whether he was
awake. The Grievant conceded that he would lie on the couch on his breaks if he was
headache, but that is a different thing than sleeping on the job. The County tries to obscure
defect in its case by asserting, through Jim Hermans, that the Grievant put himself "in a
where he could have easily fallen asleep." That may or may not be true, but it has nothing
to do with
whether he actually was sleeping. There is simply no proof of this charge and the Arbitrator
sustain a discharge on the basis of a suspicion.
While extending breaks was not cited as a basis for the discharge, the County claims
stayed on break for 40 to 50 minutes, and that this shows he must have been sleeping. The
"proof" offered to support this is the testimony of Lutz. That testimony does not hold up
examination. Lutz claims he knows the timelines because the Grievant went on break shortly
bedtime, at "approximately 9:20 p.m." However, bedtime in August was 10:00 p.m.
it was not
changed to 9:00 p.m. until October. Lutz signed out at 10:30 p.m. on August
29th. His own
testimony was that it takes 10 to 20 minutes to actually get all of the kids in bed, so the
break would not have begun until 10:20, just 10 minutes before Lutz left for the night.
Thus, it is
impossible that he observed a 40 to 50-minute break, even though he swore that he did. This
the entirety of Lutz's testimony into question.
As for Lutz's claim that he did four bed checks, 10 minutes apart while the Grievant
break, the Union notes that the 10-minute spacing is inconsistent with the procedure, which
is to vary
the times so that children can't predict the pattern of checks. Ten minutes is the maximum
between checks, but in practice they are done more frequently. Thus, even if Lutz did do
after the Grievant took his break, it does not mean that the Grievant's break lasted for 40
more. The Union points out that Lutz admitted to Beeson that he did not really recall the
the Grievant's break, and that he never said anything about using bed checks as a means of
Grievant's break until the day of the arbitration hearing. He had always before cited the
the basis of his recollection.
The practical problems with Lutz's testimony about the length of the break must be
an eye to the fact that Lutz posted into the Grievant's full-time job after the discharge.
Thus, he had
a motive to say whatever the County wanted him to say, since he could simultaneously cause
to open up and curry favor with the persons who would be in charge of filling that job.
inconsistencies, indeed the impossibility of some of Lutz's claims and his clear motive to lie,
Arbitrator should give Lutz no weight as a witness in this case.
Turning to the charge that the Grievant reclined on a resident couch, the Union
the Grievant reclined on the couch in the conference room, but argues that he did not know,
could not reasonably have known, that this was considered a resident couch. The residents,
are locked in a different part of the building and do not have access to the conference room
in unusual circumstances. Felter admitted that he did not tell employees which couches were
couches and which were not, and that there has not been any prior incident of an employee
on that particular couch. An employee cannot be held to follow a rule which is unknown
cannot reasonably be known to him. The County could not produce a single employee who
say that they knew the couches in the conference room were resident couches. The best they
do was generalizations by Hermans and Felter to the effect that everyone knows that all of
couches are for residents. They could not explain how everyone would know that, nor could
say why the rule specifies "resident" couches if it means all couches, everywhere in the
The evidence does not warrant any discipline against the Grievant. Even if the
were to determine that some disciplinary offense took place, however, the County is
follow progressive discipline. The Grievant has a single disciplinary act on his record, a
suspension. It cannot be that the next step is discharge, unless some capital offense is
only allegation of that magnitude is the claim that he slept on the job. Since that has not
it follows that discharge is an inappropriate penalty.
The Reply Brief of the County
The County points out that the Union's brief essentially admits misconduct, in that
Zenko admits reclining
on the couch in the conference room. The Union's hairsplitting about what type of couch he
was reclining on misses
that point that he is paid to care for children, not to lie on the couch. Breaks are only
allowed "when work permits"
and the Shelter Care worker is always under an obligation to be available to provide for the
children's needs. Reclining
on a couch in the dark in a conference room outside of the area where residents are, is
clearly not being available. No
matter how one characterizes the couch involved, the Grievant's conduct is a basic violation
of his job duties and the
work rules, and the Grievant has admitted to having done this on at least five occasions. The
County is fully within
it rights in discharging him. The Union's appeal to progressive discipline is simply
misplaced, given that the conduct
in this instance was serious enough to warrant termination in the first instance, and given his
previous suspension for
The County disputes the Union's claim that just cause has not been established.
Again, the Grievant admitted
repeatedly taking his breaks while laying on a couch where he was unavailable. Moreover,
closing one's eyes, and
spending a long period of time laying in a fetal position in a closed and darkened room, is a
fair description of sleeping,
which is a dischargeable offense under the labor agreement. The County notes that prior to
the hearing the Grievant
never directly denied sleeping on the job he simply said he did not remember
sleeping on the job. That is not the type
of thing one would forget, and his evasive answers stand in stark contrast to his direct denial
at the arbitration hearing.
His credibility is completely undermined by his shifting answers, and the Arbitrator should
give no weight whatsoever
to his self-serving denials at the arbitration hearing.
The Union's attack on Lutz's credibility is not supported by the record evidence.
admitted that bedtimes would revert to 9:00 when school started. School had started by the
end of August in 2001.
The County also notes that there are two bedtimes early bedtime, and an earned
points bedtime an hour later. Under
any scenario, there would have been a bedtime at 9:00 p.m. on August
29th, and bed checks would have been conducted
after that bedtime. Thus, there is no inconsistency in Lutz's testimony. He was an entirely
credible witness with no
motive to lie, and his testimony makes it absolutely clear that the Grievant was guilty of
reclining on the couch,
sleeping on the job and extending his breaks on August 29, 2001. It follows that the County
did not violate the
contract, and that the grievance must be denied.
The Reply Brief of the Union
The Union asserts that the County's arguments to the Arbitrator are misleading and
misplaced. The County claims that everyone agreed the Grievant went into the conference
turned out the lights and lay on the couch for at least 20 minutes on August
29th. In fact, Lutz was
the only on who said that the Grievant and Mileski both testified credibly that they
could not recall
the specifics of that shift. Likewise, the County claims that Mileski saw the Grievant laying
eyes closed on the 29th. Mileski specifically said she recalled such an
occasion but could not recall
when it was. The County accuses Beeson of presenting scripted testimony, without
basis it has for that characterization. It simply uses invective in the place of actual evidence.
other hand, the County credits everything Lutz said without explaining away the
his testimony, or explaining why he denied ever speaking to Beeson, when both Mileski and
testified that the conversation took place.
The County makes much of the Grievant making himself unavailable to
immediately respond to
a resident. However, staff members are frequently in such a position, either outside smoking
or going to the bathroom. That was not the charge against the Grievant. He was charged
violating specific work rules, and the County cannot rewrite those rules to fit their evidence.
Grievant is accused of reclining on a resident couch. The County's argument that this means
couches and that the type of couch is irrelevant ignores its own written rules. In the same
County's argument that the Grievant knew he was exposing himself to discharge by putting
in a position where he could fall asleep, ignores the fact that the negotiated rule prohibits
not being a position to fall asleep.
The Union argues that the evidence relied upon the County at the hearing to show
Grievant had driven to Pewaukee and back for his other employer on August
29th, should be given
no weight by the Arbitrator. This is evidence that the County did not have and did not rely
when it discharged the Grievant. It is well established that an employer making an arbitrary
capricious decision to terminate an employee may not then go back and build a case after the
For all of these reasons, the Grievant must be reinstated and made whole.
The Scope of the Case and the Due Process Issue
The notice of discharge states that the Grievant was terminated for
sleeping on the job
and for reclining on a resident couch, both violations of the work rules. He denies sleeping
while he admits reclining on a couch, he denies being told or knowing it was considered a
resident couch. The County also alleged that he extended his break on August
29th by between
20 and 30 minutes. While it is not formally listed as a basis for discharge,
the parties have
litigated that issue, and the Union conceded in its opening statement and its brief that this
also one of the grounds for the discipline.
The Union has argued that the delay of five months in bringing this
case operated to
deny the Grievant a reasonable opportunity to defend himself and that the grievance should
be granted on grounds of due process. I cannot agree. Certainly, management has a duty to
respond promptly to disciplinary issues and does not have the right to simply sit on them,
then spring them at a time of its choosing. Failure to promptly investigate and act carries
it a number of problems, including basic unfairness, and inconsistency with the notion of
corrective discipline. If one principal purpose of discipline is, as it is generally held to be,
correction of employee behavior, that purpose is not served by unreasonably delaying a
response to misconduct. The delay by the County here was not unreasonable. Lutz said he
mentioned this to Felter shortly after it happened, but he conceded that he might have first
mentioned it in a manner that suggested he was just joking. Stephen Felter testified credibly
that he had no recollection of ever being told of this allegation before January of 2002, and
he immediately investigated once he became aware of it. Management cannot be held to
promptly investigate matters it knows nothing about.
That is not to say that the delay in investigating this matter does not
implications for this decision. Lutz was not asked, and did not offer, why this matter should
go unmentioned from September to January, or what prompted him to go to Felter in
That is an oddity and it raises questions about his motivation. Aside from why Lutz made
January report, the delay also substantially disadvantages the Grievant. Even as of the
hearing, it could not be said with certainty that August 29th was the date in
question. At best,
it could be said that a reconstruction of records strongly suggested that as the date. The
Grievant was called upon to detail his movements on a shift five months earlier. Many of
responses were couched in terms of what he would normally do rather than what he
specifically did, or of just not recalling. That is often an indicator of deception by a witness,
but in this case, it is just as plausible to regard it as the most honest answer he could
given the passage of time. Thus, while I do not regard the delay a violation of basic due
process rights, I do find it a relevant factor in the weighing of testimony and in the
As noted, the Grievant disputes two of the charges that he slept
on duty and that he
extended his breaks. He admits reclining on the couch, and admits having done this more
once. The County argues that this admission alone should support the termination, given his
The Undisputed Conduct Reclining on the
The Shelter Care's work rules are set out in a list of "Do's and Don'ts" and the
on the "Don't" list is "Lay down or recline on resident couches." The Grievant concedes he
on the couch in the conference room. The question is whether that couch is
covered by the work rule. Hermans and Felter both testified that it was because the
rule was intended
to cover all reclining and all furniture. I have no doubt that both men believe what they say
point, but I must agree with the Union that they are applying the rule they meant to have, not
they do have. On the face of it, the rule does not apply to all couches, and does not ban any
reclining. Of course, if as the supervisors testified, everybody knows that the term "resident
encompasses all couches, the wording of the rule can be made to fit their interpretation.
both testified that they had never briefed staff on what was and was not a resident couch, and
there were no guidelines making the definition clear to staff members. Moreover, every
member who testified, including management's witnesses, testified that they did not consider
conference room couch to be a resident couch and had never been told that it was a resident
Most agreed that reclining of any type in the resident areas would be against the rules, but
agreed with Hermans that the conference room was considered a resident area.
The County points out that the Grievant admitted he had never seen any other
recline on the conference room couch, and that he had not done so when a supervisor was
It suggests that this shows he understood there was a rule against it. However, the Grievant
he did not monitor what other employees did on their breaks, and that is a believable answer,
when the other employee was on break, he would have to remain in the residents' area and
be able to see into the conference room. As for the fact that he said he had not reclined on
in the presence of a supervisor, for the bulk of the time while he was a full-time employee,
bedtime was 10:00 p.m. and the supervisor would leave at 10:30 p.m. Depending on how
took to put the children to bed, he would not generally have started his break until the
due to leave. Given that he estimated that he did this four times or so, it is difficult to view
an admission of any kind.
The County also claims that the Grievant admitted to the Hermans that laying on the
conference room couch on break was a rule violation. After initially saying he could not
recall if the
Grievant said he believed it was okay to recline on the couch (Tr. p. 106, folios 18-25),
testified that the Grievant said, at a meeting on February 27th, that he knew
laying on the couch was
rule violation (Tr. p. 111, folio 22 p. 112, folio 5). The Grievant testified he had
of making any such statement to Hermans, and that he did not believe it was a rule violation
on that couch. Even though it is obviously a very significant admission, it is not documented
anywhere, including in the findings Hermans made that same day in support of his
decision. It may be that the findings and termination decision were already prepared when
conversation took place, and that Hermans decided not to supplement the document with the
of their discussion, but I note that the Grievant did not sign for the receipt of the termination
document until the following day, and thus there would have been time to note the alleged
The equivocal testimony of Hermans, together with the lack of any notation of this admission
findings, makes it extremely difficult to use it as the basis for finding that the Grievant told
he knew that he was violating the Shelter Care's rules by reclining on the conference room
In connection with reclining on the couch, and also with the general charge of
County argues that the Grievant violated the Staff Positioning policy. That policy requires
members to be mobile and observant of resident behaviors, and not be stationed in the office
at desks. It also requires staff to "always position themselves in the facility to have a
on all areas." There are two problems with this theory. The first is that the Grievant was
charged with violating this policy, and it was not a basis for the discharge. An employer
revise its grounds for discharge in the midst of the arbitration hearing. The second problem
the County does not explain why reclining on the sofa in the conference room would be
sitting on the sofa in the conference room, in terms of the Staff Positioning policy. Staff are
to either go in the conference room or go outside for their breaks. Since the conference
the hallway to the outside are both physically separated from the resident area, it is not
maintain "a watchful eye on all areas" during the break, and staff necessarily cannot follow
during breaks. The thrust of the County's concern is that it believes the Grievant truly was
on the couch, and thus would not have known if there was a problem in the resident area. If
Grievant was asleep, he is subject to immediate termination, but that is not because he was
the Staff Positioning policy.
While the general intent of the work rule might be understood to ban reclining of any
the residents' portion of the building, whether on a couch or another piece of furniture or on
floor, it is just not possible to read the language used and conclude that it bans reclining on
in the conference room designated for staff breaks, particularly not after the residents'
they are locked in another part of the building and cannot access that room. If there were
that there was a general understanding that that was the scope of the policy, it could be
the Grievant knew reclining on that particular couch was banned and could be held to a rule
However, the testimony of staff members was uniformly that they did not regard it as a
and had never been told it was. Neither does the record allow me to find that the Grievant
individually had that understanding. Finally, the County's appeal to the Staff Positioning
not suffice to establish a rule violation. That policy was never cited as a basis for discipline,
policy as applied does not make being in the conference room a disciplinary offense so long
staff member is alert to his or her surroundings. For all of these reasons, I conclude that the
did not violate the work rule against reclining on resident couches.
The Disputed Conduct Sleeping on the Job and Extending
The meat of this case is in the allegation of sleeping on the job. The extension of the
of August 29th would be misconduct, but it is the sleeping charge that
justifies immediate termination.
Both of these charges essentially come down to the testimony of Derek Lutz.
Lutz testified that, 20-minutes into the Grievant's break, he looked through the
the conference room door and saw him curled up on the sofa, with the lights out. He said he
not see his eyes and did not know for sure that he was sleeping, but that he believed
he was sleeping. He also said that Mileski told him he should let the Grievant rest,
because he had
a headache. This contrasts with the County's write-up of his statement in January, in which
he saw the Grievant sleeping on the sofa, and that Mileski said he should let him sleep.
these differences, Lutz said he believed that Mileski said "rest" rather than "sleep" but was
absolutely sure. He said she did mention that he had been driving all day.
On its face, Lutz's testimony provides inferential evidence that the Grievant was
duty, although it is hardly conclusive. His one brief observation is consistent with both the
the Grievant was sleeping and with the Grievant's claim that he was lying down with a
was awake and alert. The suggestion that he was exhausted because he had driven to
back that day is not particularly persuasive. That is simply not a grueling drive, especially
someone who routinely drove between Green Bay and the Milwaukee area. As for the
between his statement in January and his testimony at the hearing, there would normally be a
to give greater credence to the statement made closer in time to the events. However, there
five month lag between the events and the statement, and it is not fair to say that events were
in Lutz's mind at any point during this proceeding.
The one factor that tilts Lutz's story in favor of the conclusion that the Grievant was
is the length of the break he took. Everyone agreed that the Grievant was not in the habit of
breaks, and that when he did, he would return promptly. If, on this occasion, he did not
his break for 45 minutes or more, it is a fair inference that he not only extended his break,
he did so because he was asleep. That said, I have great difficulty in crediting Lutz on his
the length of the Grievant's break.
Lutz said in his statement and testified at the hearing that he remembered that the
went on break at approximately 9:20 p.m., after the children were put to bed, and remained
for 40 to 50 minutes, returning shortly before Lutz left at 10:30 p.m. He also said at the
hearing that he recalled doing four bed checks while the Grievant was on break. Both
the Grievant deny that he took more than a 20 minute break.
I have two problems with crediting Lutz. First, I am concerned about his long delay
reporting this alleged incident to the management of the Shelter Care. He claimed to have
about it shortly after it happened, but Felter denied any knowledge of that. Felter said Lutz
he might have framed his comments in a joking fashion, and Felter speculated that if that
he might not have taken it as a serious comment. That's all possible, but it still remains
Lutz waited for five months to repeat it if, as apparently was the case, this was for some
matter of great concern to him.
The greater problem with Lutz's testimony is the discrepancy in the bed times of the
His testimony depends upon a 9:00 p.m. bedtime, just as was in effect in January, 2002,
made his report. August 29th was identified as the date for this incident
because it the date on which
he worked with the Grievant and Mileski until 10:30 p.m., instead of his normal 9:30
The critical part of his story that he saw the Grievant laying on
the couch in the dark for an extended period of time after the children went to bed
there having been a substantial interval of time between bedtime and his 10:30 quitting time.
bedtime would have meant he would have left work before the Grievant could have returned
a 40 to 50 minute break, and it is the length of the break that adds credence to his report that
Grievant was asleep. Yet, there is strong evidence that the bedtime in late August was 10:00
not 9:00 p.m.
The minutes of the October 10th staff meeting contain the
announcement that "Evening quiet
times have been eliminated and replaced with an earlier bedtime. Bedtime will be 9 pm with
points and 8 pm early bedtime." The minutes do not announce when this change was
Lutz said he had no idea when the change occurred. Neither could any of the staff or
testified say when the change took place other than generally saying it was sometime in the
only witness who had a recollection of when the change took place was the Grievant, who
said it was
made when school started that Fall, to allow more time to get the children up in the morning.
testified that August 29th was before school started. If the change in
bedtimes coincided with the start
of school and if school had not yet started by August 30th, Lutz's statement
is demonstrably untrue.
The County states in its reply brief that school had started by August
30th, the day after this
incident and August 29th would therefore have been a school night. The
County provides no citation
to the record in support of that assertion and after a careful review I can find none.
statutes require school districts to start the school year on or after September 1st. 1/
in 2001 was a Saturday, and Labor Day in 2001 was on September 3rd, the
Monday following this
incident. Thus, Tuesday, September 4th was the most plausible date for the
start of school in 2001.
The record evidence in this case establishes that the Shelter Care switched from a 10:00 p.m.
to a 9:00 p.m. bedtime sometime in the Fall of 2001, and that the most likely time for this
the beginning of school. The record evidence also sets the start of school as falling in the
this alleged incident. The preponderance of the evidence persuades me that the bedtime for
on August 29th was 10:00 p.m. 2/ Given that, Derek Lutz's version of
what he saw and heard on
August 29, 2001, cannot be true.3/
1/ Section 118.045,
2/ The County also
argues that even if the earned points bedtime was 10:00 p.m., the early bedtime would have
been at 9:00 p.m. and thus Lutz's statement would have been true. It was apparent from the
testimony of the
various witnesses on this point that, when they refer to "the bedtime," they are referring to
the later of the two
bedtimes. More significantly, assuming that there was a 9:00 early bedtime and 10:00
earned points bedtime, it is
very hard to make Lutz's story fit. If the Grievant remained on break through the earned
points bedtime at 10:00
-- as he must have according to Lutz's 40 to 50 minute estimate -- that would have meant a
workload for Lutz, since he would have had to get the male children to bed himself. If that
were the case, he would
presumably have used that as a touchstone for estimating when the Grievant returned from
break, rather than his
recollection, mentioned for the first time at the arbitration hearing, that he did four bed
checks while the Grievant
was away on break.
3/ In discrediting Lutz's testimony, I have not
given any particular weight to the testimony of Beeson about
his various concerns about whether he had made an accurate statement. Although the County
is not correct in
asserting that Lutz was never questioned by the Union about whether he had had
conversations with Beeson about
his statement in fact, he was asked and either incorrectly or untruthfully denied
speaking with her the substance
of his alleged comments to Beeson does not constitute a clear recantation of his statement to
management. If he
said these things, they are as easily attributed to a person who has second thoughts about
reporting something that
was accurate but unpopular with his co-workers as they are to a person who felt he made an
The charge of a rule violation for reclining on a resident
couch cannot be sustained,
since a reasonable person could have viewed the conference room sofa as not falling within
definition of a resident couch, at least not at night after the residents had been sent to bed
in a different part of the building. The charge of sleeping on the job rises and falls with the
of Lutz, and his credibility is open to substantial question. Even crediting his testimony
provides only inferential evidence of sleeping, and the most persuasive point he makes is that
Grievant took an exceptionally long break. However, that testimony hinges on the bedtime
been 9:00 p.m. and the weight of the evidence indicates that the bedtime in August of 2001
actually 10:00 p.m. A 10:00 p.m. bedtime cannot fit with the remainder of his statement
the length of time the Grievant took for a break, and I conclude that that testimony was
therefore conclude that the County has failed to prove that the Grievant was sleeping on the
extending his break on or about August 29, 2001.
On the basis of the foregoing, and the record as a whole, I have made the
The County did not have just cause to terminate the Grievant. The grievance is
the appropriate remedy is to immediately reinstate the Grievant, remove all reference to the
from his file, and to make him whole for his losses. The Arbitrator will retain jurisdiction
for a period
of forty-five (45) days from the date of this Award for the sole purpose of clarifying the
Dated at Racine, Wisconsin, this 18th day of August, 2003.