STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MILTON L GREENHILL, Employe

CHILDRENS HOSPITAL OF WISC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605206MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed November 3, 1999
greenmi.usd : 145 : 1 MC 659.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that the employe admitted to sleeping while on a paid break in a somewhat isolated area, which was not designated as a break area. The employe further indicated an expectation of being suspended pending the discharge investigation. The employe had been suspended in the past for sleeping while on duty. However, the employer's rule prohibit sleeping while "on duty". The employe was on break, and therefore could reasonably believe he was not on duty. The employer's rule regarding breaks does not indicate that a worker cannot sleep during those breaks. In addition, the rule does not indicate that workers need to take their breaks in any designated area. The employe testified that he had been working in that area, but had not finished by break time. It was his practice, and that of other custodial workers, to remain in the area they are working on during break times when they are running behind. The employe believed this saved time. With regard to the employe's being in an isolated area, the employe clearly did not go to that area specifically to sleep. For example, the employe was sitting in a straight-backed chair. The employe credibly testified that he did not intend to sleep, but sat down in a chair and dozed off for a few minutes. The employe's nap was of very short duration. The area was well lit and was to open at 6:00 a.m. The employe's break time was from 5:30 to 5:45 a.m. Had the employe intended take a nap it seems likely he would have chosen a more comfortable location where he would not risk being caught sleeping when the area opened. While the employe had a prior warning about sleeping while on duty, this was three years earlier and the employer did not know whether the employe had been informed that the employer's rule against sleeping while on duty included his break times. While his behavior may have been negligent, it did not amount to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I disagree with the majority that because the employe might have been on break that it was okay for him to sleep. Exhibit 2, page 2 discusses meal and rest periods. It states: Rest breaks are paid non-accruing time: they may not be used to make up time and they are lost if not taken. In addition, breaks cannot be taken as part of the meal period or at the beginning or close of the work day. Breaks are scheduled by supervisors in order to maintain appropriate department coverage. At times, department needs may not permit breaks. Employees on break are expected to return to their work area in emergency situations."

The employe's supervisor testified "Break areas are specifically defined as the lunch area and the deli area. The only thing open at that time is the coffee shop area off the first floor of the hospital lobby. They are allowed to be there or in the environmental services break room up in the offices. In regard to whether it is the hospital's policy that workers on break are allowed to sleep, they are not allowed to sleep. They are allowed to be in a specific area."

The distribution aide testified, "I observed the employe on that shift on 5/28 between 5:30 and 6:00. We have to deliver medical records to all the clinics at that time in the morning. The night of 5/28 we were on the 1st floor. I went to Clinic C. It's a hallway. I put records about the 3rd door down. It's a little waiting area. Down a little further, they fix children's bones. That's where I saw the employe. He was in that area, sitting in a high back chair asleep."

The employe agreed that "we had assigned areas for taking our breaks---the coffee shop, the break room, or the smoking area." Also the employe stated, "I was in the back room on ortho when I did that. That would be Clinic C. I did not discuss doing that with my lead. I understood I might be breaking rules when I decided to do that." The employe admitted "In regard to what I was told about that, we were told when you finish the area to make sure everything is locked up and leave.In regard to how I woke up, the lights and everything were on.In regard to how I was aware some other others were terminated for sleeping in similar circumstances, from other employes. I had been suspended previously for the appearance of sleeping on the job. I did not hear the security person coming when I was sleeping
in Clinic C."

The employe had been warned about sleeping on duty and suspended in the past. The employe admitted he was in a place where he was not supposed to be if he was taking a break. The employer's rules provide that an employe may be scheduled to work through a break if there is an emergency. The employe did not tell his supervisor where he was so the employer would not know where to find him in an emergency. The employe was in an out of the way place when he was sleeping and the employe woke up when the lights went on. I believe that the employer has demonstrated that the employe was discharged for misconduct connected with his employment. I would reverse and find the employe was discharged for misconduct.

___________________________________
Pamela I. Anderson, Commissioner


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]