STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
THE WISCONSIN STATE EMPLOYEES UNION
AFSCME, COUNCIL 24, AFL-CIO, and PAUL
THE STATE OF WISCONSIN, Respondent.
Decision No. 28961-A
THE WISCONSIN STATE EMPLOYEES UNION
AFSCME, COUNCIL 24, AFL-CIO, and PAUL
THE STATE OF WISCONSIN, Respondent.
Decision No. 28962-A
FINDINGS OF FACT, CONCLUSIONS OF LAW
The Complainants filed their complaints in Cases PP(S)-247 and PP(S)-254 above,
Wisconsin Employment Relations Commission (WERC), alleging that Respondent, above,
committed unfair labor practices within the meaning of the State Employment Labor
Sec. 111.80, et seq. On January 3, 1997, the parties agreed to consolidate the
complaints for hearing.
On January 7, 1997, the Wisconsin Employment Relations Commission issued an order
the undersigned, Dennis P. McGilligan, as Examiner.
Pursuant to notice, the Examiner conducted a hearing concerning the complaints on
10, 11 and 12, April 7, 8 and 9, and June 17 and 18, 1997, at the Commission's offices,
Wisconsin. Briefing was completed on October 26, 1998.
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 Examiner has considered the record evidence and arguments submitted by the
On the basis of the record, the Examiner makes and issues the following Findings of Fact,
Conclusions of Law and Order.
FINDINGS OF FACT
1. Paul J. Schubring ("Schubring" or "Complainant Schubring") is an individual who
at 4806 School Road, Madison, Wisconsin 53704.
2. Wisconsin State Employees Union, AFSCME, Council 24, AFL-CIO ("WSEU" or
"Union") is a labor organization with offices at 8033 Excelsior Drive, Suite C, Madison,
53717-1903. AFSCME Local 171, hereinafter "Local Union," is a local labor organization
3. The State of Wisconsin is the State Employer. The State's Department of
Relations (DER) is statutorily designated to represent the interests of the State for purposes
conducting labor relations involving state employes. DER has offices at 137 East Wilson
Madison, Wisconsin 53707-7855.
4. The University of Wisconsin (UW) System exists pursuant to and by virtue of the
the State of Wisconsin.
5. The UW, among its many functions and missions, operates a campus in Madison,
Wisconsin, identified as the University of Wisconsin-Madison.
6. At all times material hereto, the Chancellor of the University of
was and continues to be David Ward, 161 Bascom Hall, Madison, Wisconsin; the President
continues to be Katherine Lyall, 1720 Van Hise Hall, 1220 Linden Drive, Madison,
Wisconsin 53706-1557; John Torphy was a Vice-Chancellor and Henry Lufler was an
assistant to the Chancellor.
7. At all times material hereto, the University of Wisconsin-Madison operated a
of Police and Security with offices at 1429 Monroe Street, Madison, Wisconsin 53711-2018.
Riseling is the Chief of Police. Debra Hettrick is a Captain. Lieutenants in December of
included Brian W. Bridges, Gary Johnson and Ronald L. Tews. Sergeants at that time
Burke. There were around 21 Police Officers employed at the time including Harlan
Stephen R. Sasso. Security personnel included Security Supervisors James Kaszubski and
Williams, and Security Officers John Powers, Mark L. Voight and Earl Weisensel.
8. At all times material hereto, Paul J. Schubring was employed by and worked for
University of Wisconsin-Madison, Department of Police and Security as a Police Officer.
began his employment with the aforesaid Department on January 8, 1984.
9. During the course of his employment with the Department of Police and Security,
Schubring was active in Local Union 171. Said Local Union was and continues to have
and representational duties for certain classified employes employed by and working at the
of Wisconsin-Madison Campus including, but not limited to, University of
Department of Police and Security. It was and continues to be appropriately affiliated with
10. Paul J. Schubring became a Steward for Local 171 in 1992, and later that year
Chief Steward. Schubring became President of the Union effective February, 1995. He has
extensively involved in Union grievance procedures and bargaining on behalf of Local 171 at
11. On or about August 24, 1994, Chief Riseling attended a meeting in which Paul
was acting as Union steward. Also present was the grievant, Jodi Hollis, Attorney Gordon
McQuillen, also representing Hollis, Captain Hettrick and one other member of the
group. During the course of this meeting, Schubring alleged that Police Communication
James Foley had violated the confidentiality of the content of the meeting. Chief Riseling
what he meant. Schubring responded that Foley "had wished Ms. Hollis good luck before
into the meeting." (Foley had wished Hollis good luck going into the meeting, "like I do to
everybody.") Chief Riseling failed to see how that violated any kind of confidentiality so at
dropped the matter. The parties then moved on to the subject matter of the grievance.
The next morning Captain Hettrick informed Chief Riseling that Foley had called her
and was very upset and would not calm down until he heard from Chief Riseling that he
be disciplined. Chief Riseling subsequently spoke with Foley who informed her that he had
called at home by Schubring who informed him that he was in trouble and that he was
to be investigated and disciplined for violating the confidentiality of the aforesaid meeting.
Riseling asked Foley if he knew what the meeting had been about with Hollis and he replied
thought it had something to do with her seniority date. Foley "was visibly shaking" and
went on to
tell Chief Riseling about his employment history "and that he had never been in trouble."
Riseling then said that there seemed to be "a total miscommunication." She told Foley there
nothing going on so calm down, and "after about a half an hour he did." Thereafter the
The following Monday, Schubring came by Chief Riseling's office just before lunch
order to talk about the above matter. Chief Riseling and Schubring decided to talk
it. They talked about the meeting with Hollis, the phone call to Foley, the subsequent phone
Foley to Captain Hettrick and Captain Hettrick's recommendation that the Chief talk to
basically got everything out on the table pertaining to the Foley/Hollis matter and "we shook
and we parted." No discipline was ever imposed on Schubring as a result of this incident
Schubring ever told by the Chief that she "would not allow him to upset employees even if it
12. In January, 1995, Chief Riseling, Paul Schubring, Captain Hettrick and others
in a pre-disciplinary meeting concerning Officer Stallsmith involving some problems he was
at the arts center. During the meeting, Stallsmith became "quite agitated." Chief Riseling
without success to calm Stallsmith down and she "just kind of reached toward Paul. And
interjected" and calmed Stallsmith down. After the meeting Schubring asked Chief Riseling
would happen if Stallsmith had not calmed down. Chief Riseling told Schubring that if she
"de-escalate him," she would "order him to calm down and then we would be looking at an
insubordination type issue." Schubring then queried what would happen if a Union steward
at these meetings. Chief Riseling responded that she would try to de-escalate the tension and
she was unable to do that, she would ask the employe to intervene with their own steward;
and if that
was unsuccessful, then she would end the meeting; and if the steward continued he would
insubordination charges. Schubring then asked how she could find the steward insubordinate
steward was not an employe of the Department and Chief Riseling responded "I would most
have to resort to placing them under arrest, if it got to that level." However, Chief Riseling
they were just talking in a "hypothetical sense" far removed from the situation they had just
with, Mr. Stallsmith.
13. In February, 1995, Paul J. Schubring wrote to Chancellor Ward regarding the
budget cuts stating that his "recent across the board budget cuts have adversely hurt
the University Police Department." Schubring asked that Ward "increase the size of
Department not decrease it." Schubring concluded by noting that by not filling one
Captain position there would be sufficient salary for two police officers.
14. In response to the above letter, Chief Riseling wrote Schubring on March 7,
she found his "math in calculating management to officer positions misleading." Chief
wrote: "I found it bizarre for you to argue not to cut the Police in one paragraph, then use
numbers to argue that Police management should indeed be cut." Chief Riseling called
suggestion that a Captain's position not be filled "short sighted" and stated:
I don't expect you to understand what every position in this
organization does, but don't let
that turn the clock back on the progress the 100 of us continued to make.
Chief Riseling concluded by noting:
It is too soon to know what, if anything,
will need to be reduced as a result of the state budget.
As I have stated before on several occasions, I will not speculate. If you have any questions
concerns, please contact me. Thank you.
15. On or about May 30, 1995, Paul Schubring, as the Union Steward, met with
Supervisor James Williams concerning two grievances regarding unscheduled overtime for
Officer Earl Weisensel. At the grievance meeting, Williams told Weisensel and Schubring
that he had
made the overtime assignments in dispute according to the agreement with the Union.
there was no agreement and that management "was fucking with the employes." At that
Williams picked up the Union contract and tossed it on the table in front of Schubring and
Schubring to show him the rules. The contract ricocheted off the table and hit Schubring.
point Schubring "became increasingly angry" and again said that management was "fucking
employes." Williams asked Schubring "to please refrain from using that language."
responded "I'll talk any fucking way I want." At that point Williams saw Schubring "with a
his neck was swelling, his voice was very angry and loud." Williams testified: "I was hit
with a load
of adrenaline. I felt I was no longer in control. He was no longer in control. I declared the
at an end."
As Schubring left, Schubring told Williams to tell Captain Hettrick that he was
local agreement and that Williams should complete the grievance forms immediately.
thought Schubring's remarks were giving orders. Williams finished the grievance forms and
room about 10 15 minutes later and met Schubring "by accident in our rear lobby."
The two had
a conciliatory conversation in which Williams expressed regret that the meeting had ended
"because Earl never did get an answer to his grievance."
The same day of the grievance meeting Schubring approached Sergeant Burke about
meeting and said he was sorry he yelled at Williams. Williams was then brought into the
Williams and Schubring agreed that the environment of the grievance meeting had been
Schubring indicated that he was sorry for yelling at Williams, but that he could not help it
felt he was taken advantage of by management.
On June 13, 1995, Schubring was interviewed as part of a pre-disciplinary
Schubring's conduct in the above grievance meeting. Present were Union Steward Mark
Council 24 Representative Diana Miller, Sergeant Todd Kuschel, Schubring and Sergeant
During the course of this interview, Kuschel and Burke criticized Schubring's "tone" and
during the grievance meeting, particularly his use of the word "fucking." They also
Chief Riseling was "concerned about what is acceptable behavior and actions in dealing with
members of the department" and people feeling safe and secure in dealing with Schubring.
During an informal discussion, also on June 13th, Schubring
explained to Chief Riseling that
he felt bad about an incident with Security Supervisor Williams in which he used the word
because they had been friends for years. Schubring explained that he wanted to lay the
rest and that he had apologized to Williams. Chief Riseling and Schubring then talked about
similarities between the Chief's job and the job of Union President. They talked about how
dealt with stress with Chief Riseling saying that she played softball and Schubring stating that
to lift weights. It was within the context of this discussion that Chief Riseling gave the
below to Schubring.
16. On June 14, 1995, Chief Riseling gave Schubring a copy of an article appearing
"Women Police." The article was the President of the IAWP's message to the
membership. On the
copy Chief Riseling wrote:
I read this today and thought it may be
beneficial to you. Kind of a follow-up to our talk
The article was the President's suggestions on how to deal with criticism,
arguments. It concluded by noting:
Remember, don't get down on yourself or others when
pops up. Biting your tongue,
controlling your emotions and focusing on self-improvement are often well rewarded.
17. Sometime in early June, 1995, Paul Schubring arranged to meet with Henry
Lufler of the
Chancellor's Office with regard to the Union's concerns with management. The day before
meeting, Chief Riseling and Schubring started a conversation near the Xerox/coffee room.
Riseling expressed to Schubring her concern that if he were to lose his temper with Lufler
reflect poorly on the organization. Schubring then explained his strategy concerning the
budget cuts and his intention "to make sure that the chancellor's office understood that (the)
171 was not in favor of, obviously losing positions." Chief Riseling then told him that she
with that, and, as in previous conversations, Chief Riseling and Schubring agreed "that no
Schubring and Sharon Russ, a secretary in the court services office, testified that
Riseling stated that she would be angry if there was a "negative response" or "problems" as
of the aforesaid meeting. Russ indicated that Chief Riseling's tone of voice was "not
normal," it was
"stern" during the above conversation. Russ "got out" of the room not wishing to hear
At no time prior to or after this meeting or at any time material herein did Chief
Schubring that he "had to get out of uniform and put on plain clothes when interacting with
police and security personnel on Union business even while on duty."
18. Paul Schubring then met with Lufler. Schubring told Lufler that excessive
measures were being taken; there was excessive micro-management; that minor incidents
into major incidents; and that there was too much management in comparison to officers.
also told Lufler that he thought a Police and Fire Commission would be a good idea because
help eliminate bias and personality conflicts. Later, Schubring discussed the possibility of a
and Fire Commission with Captain Hettrick who made it clear that she did not want a
"because the department would lose control and other people would be involved."
19. On or about June 14, 1995, Paul Schubring wrote Attorney Scott Hassett
with a "possible unfair labor charge." The letter informed Hassett, in material part, as
As of today, I was informed I was to have a pre-liminary (sic)
disciplinary investigation against
me for alleged misconduct during a grievance hearing in which I was acting as the steward.
Unfortunately, I was not the steward who had filed the grievance. I did get upset because
supervisor was being a jerk. So, I said "you are fucking with the employees." At that point
supervisor got mad and asked that I refrain from poor language. I indicated I could say what
wanted as long as it was not directed at the supervisor. The supervisor James Williams
the meeting was over. So, we left! . . .
The letter also advised Hassett of several other incidents including:
. . . The first was the Chief called me in her office for a PDI for
an instance when I called a
represented employee at home from my home. We both were off-duty! The employee was
with me but got concerned that he had been mentioned in a meeting. So, out of paranoia he
the Captain. The Chief Stated (sic) "I will not allow you to upset employees even if it is
business!" She claims she controls the employees at all times, on duty and off.
The next incident was in front of the records manager Patricia
McGuire. The Chief confronted
me because she heard that I had a meeting with the Chancellor to complain about her having
of 3 to 1 supervisors to officers which is triple of the norm for most agencies of our
size. The Chief said "I understand you have a meeting with the Chancellor tomorrow, I will
angry if anything happens and we will have a problem."
The letter concluded by noting:
The Chief requires that I get out of uniform
and into plain clothes if I have a meeting with non
Police and Security personnel, even though I am on duty! Other Union personnel who wear
are not required to do this!
The Chief has threatened me with discipline
when I clearly am acting as a steward or as the Local
20. Paul Schubring, in a letter received June 15, 1995, wrote Marty Biel and other
representatives of the Union about Chief Riseling's "continual harassment of me!" Schubring
in said letter that during a meeting "with Lt. Tews, Lt. Miller, Riseling, Ed
Corcoran, Union Rep.
Mark Voight and myself to discuss overtime. (sic) Chief Riseling stated numerous times 'I
the tone of your letter or your attitude regarding Union issues.'" Schubring asked that
Scott Hassett write a letter telling management "that my tone and health regarding Union
none of their business."
21. On July 14, 1995, a complaint of prohibited practices was filed against the State
Wisconsin by Council 24 and Paul Schubring. The complaint alleged that Chief Riseling had
in an ongoing campaign of intimidation and harassment directed at Schubring as a result of
protected activities on behalf of Local 171 and the WSEU. The complaint alleged a number
occasions on which Schubring had been threatened with discipline for conduct in connection
performance of duties as a steward. The complaint (PP(S)-247) alleged that the actions of
Riseling since August of 1994 were in violation of Secs. 111.84(1)(a) and (1)(c), Stats.
22. The complaint received coverage in the Badger Herald and
Capital Times. The
articles quoted Schubring as saying "morale is at an all time low," and that officers were
by Chief Riseling's penchant for "doing frivolous things with money, including funding of
jet ski and horse mounted police programs in the face of under-staffing in the departments
by Schubring." Schubring was also quoted as criticizing Chief Riseling for her decision to
managers to San Diego to hear a speech by a UW professor.
Chief Riseling disagreed with Schubring's claims. Chief Riseling was quoted in
Times article as saying: "If there is any lack of morale, . . . it's because of
23. Paul Schubring met with Vice-Chancellor Torphy several months after his
Lufler. He told Torphy that there was excessive discipline, microscopic management and
morale. He also told Torphy that officers felt they were watched every minute. Schubring
told Torphy that hundreds of grievances had been filed. Torphy disagreed and, therefore,
meeting Schubring faxed Torphy copies of 67 grievances that had been filed.
24. On August 10, 1995, Paul Schubring wrote to Attorney Scott Hassett, in material
The Chief stated in front of Linda Foley an administrative aid
(sic) that she refuses to talk to
me as she can no longer trust me. Oh, Well!
However, another case of Union
discrimination recently occurred. Sgt. Dale Burke refused
to move my schedule to a different slot that was open. Sgt. Burke had previously
months ago) informed me that at the first of 1996 I would be allowed to switch to slot 8.
allow me to work more often with Steve Sasso. Sgt. Burke on 8-8-95 informed P.O. Sasso
and I that
he would not allow the switch as this would cause complications setting up meetings with
stewards, as now we were available more often. I explained that our Union status should not
any basis to being allowed to switch.
Past practice has been allowed to allow
officers to switch slots before a new officer is assigned
to the shift or to voluntarily shift slots. Therefore, this is again Union discrimination and
Of course you have seen the various news articles in which she blamed me for low morale,
though the chancellor's office and Union minutes reflect many disgruntled officer complaints.
I know she is going to make an arbitrary
shift change without going to the union, soon, as she
is downsizing the Security Division. (not Police Division yet) We filed 30
3rd step grievances in 2
weeks due to a new Policy and Procedure Manual which includes many contract violations,
so I guess
she just is not going to stop. Thought you'd like the information.
25. In October, 1995, Paul Schubring and Steve Sasso took time off during their shift
at potential offices for Local 171. They notified management that they would be off duty for
purpose and they indicated on the work schedule they would be off for Union business by
"UB" on the schedule. At the Union membership meeting on November 8, 1995, the
was informed that a new office had been found and volunteers were solicited to help move
to the new office.
26. On November 14, 1995, Sergeant Burke officially advised the Patrol Officers of
changes for 1996. November 14, 1996 was also the last day in November or December that
Schubring, Officer Sasso and Sergeant Burke all worked together prior to the disputed
27. On November 16, 1995, Paul Schubring took issue with the slot changes for 1996
communication to Captain Hettrick. Also on November 16, 1995, Schubring filed a
challenging the slot changes for 1996.
28. On November 28, 1995, the Local Union held an Executive Board meeting at
the Union's move from its old office at 306 North Brooks in the old YMCA building to its
at 2433 University Avenue was discussed.
29. The move was scheduled for 12:00 to 2:00 p.m. on December 15, 1995.
1995 was a work day for Paul Schubring. Police Officer Harlan Hettrick was Officer In
(OIC), which meant that he assigned the officers to patrol certain districts. On this day,
Hettrick assigned Schubring to District 3. The assignment was verbalized to Schubring
call and noted on the schedule. When Hettrick informed Schubring that he was assigned to
3, Schubring made no statement about being off duty that day. On other occasions when
made district assignments as OIC, when Schubring was present, Schubring indicated that he
something to do during the course of the day. Also, when Hettrick placed the "3" in the
15 slot nothing else was written there-no "UB," nothing. In addition, Police Officer Lind
scheduled to be "comped out" for the afternoon of December 15, 1995. If Schubring was
also to be
off, there would be only two officers on patrol, which would violate the Police Department's
minimum scheduling requirement that there be at least three officers on duty during the
period of time
in question. If Schubring was scheduled to be off on December 15, 1995, Lieutenant Gary
the supervisor in charge on that day, would have had to assign overtime to an employe in
avoid falling below the minimum scheduling policy. No overtime for the day shift occurred
December 15, 1995.
30. During the morning of December 15, 1995, Paul Schubring received approval
Communications Officer James Foley and Lieutenant Johnson to use an old dolly to help
furniture to the new Local office. At that time Schubring told Communications Officer
he was not helping with the move. Communications Officer Roger Feucht overheard
to Foley that "he was only going to drop the dolly off and would not be helping with the
Schubring put the dolly in his squad and took it to the old Union office. At 9:25
Schubring had a telephone conversation with Lieutenant Johnson in which he indicated that
drop the dolly off for Union members to use in the move. During the course of this
Schubring also stated: "I'm not going to help them move because they are moving at noon
just going to take it over there so that they have it." After the call, Schubring took the dolly
old Union office and then went back on patrol.
31. At approximately 11:45 a.m., Paul Schubring returned to the old Union office.
then proceeded to the new office. When he arrived at the new office. he went inside and
At approximately 12:40 p.m., Mitch McGinnis, an employe of Gumby's Pizza,
trucks parked in areas designated for Gumby's. When McGinnis confronted
the men unloading the trucks, those men began yelling at him. McGinnis yelled back.
used profanities. Thereafter, McGinnis went to the office area and was confronted by a
dressed in a dark blue police shirt without a badge, wearing a gun and gun belt." McGinnis
for the officer's name but this was refused and the officer "took hold of my arm and walked
of the office."
After McGinnis left, Schubring removed parts of his uniform, including his shirt and
McGinnis then advised Charles Schmidt, Manager of Gumby's Pizza, of the problem
Schmidt then walked over to the Union office. Schmidt said "since there appears to be a
can I have your name and badge number." Schubring told him his name and said he was
President. Schubring explained that they only had two hours to move and asked Schmidt to
Schubring became angry when Schmidt continued complaining about the parking situation
refusing to leave the office. Schubring then pushed him out of the office. While pushing
him out of
the office, Schubring stated that he was a police officer and could have him arrested. After
released Schmidt, Schmidt called the Madison Police Department (at 1:13 p.m.) and said that
been assaulted by a police officer and "wanted the police sent immediately."
At or around this same time, Schubring contacted the landlord's office and spoke
Brink. Schubring was "belligerent,. . . using language that on any other occasion I would
hung up on him. But because he was a new tenant, I didn't." Despite her repeated efforts
Schubring to calm down, ". . . he continued to just scream" at her and use "foul, abusive
Schubring told Brink ". . . to get [her] . . . fucking ass down there . . ." and straighten out
Three Madison Police Officers (Officers Robinson and Hankins and Sergeant Acre)
on the scene. They interviewed various people, including Schubring, Schmidt and
written report by Officer Robinson stated that Schubring physically escorted McGinnis out of
office and that Schubring "grabbed Schmidt by the neck and physically escorted him out of
office." Officer Hankins observed redness around Schmidt's neck.
32. At approximately 1:40 p.m. Schubring called Department Headquarters.
was summoned by PCO Foley, who told him that Schubring wanted to talk with a supervisor
the matter. Lieutenant Tews spoke with Schubring. Schubring told Lieutenant Tews what
happened. Lieutenant Tews immediately informed Chief Riseling of the incident.
Lieutenant Tews was advised by PCO Foley that Schubring was listed as "available"
CAD System and had never taken himself off "duty."
At or around 2:00 p.m., Schubring returned to the station. He then met with
and explained in more detail what had occurred and told Tews the Madison Police had
the incident and the matter was over. Lieutenant Tews told Schubring that he would have to
Thereafter, Lieutenant Tews passed the additional information on to Chief Riseling.
Riseling spent some time contacting and consulting with a variety of State and University
to relay the facts as she knew them and seek their advice on how to proceed.
At approximately 3:30 p.m., Chief Riseling met Captain Hettrick and Sergeant Burke
hallway; all three proceeded to the Chief's office. Chief Riseling asked both whether they
Schubring permission to be off for any reason on December 15, 1995; both responded that
not. Captain Hettrick proceeded to the room where the work schedule was located, reviewed
saw only a "3" in the slot for Schubring; there was no "UB." Sergeant Burke went up to his
and checked a file he kept of leave requests submitted by employes; there was nothing in it
that Schubring had permission to be "off duty."
Chief Riseling consulted with her staff about the known facts. She also consulted
Chief Legal Counsel and various University personnel involved in human relations, labor
Schubring returned to the station around 4:00 p.m. and talked with officers coming
for the next shift.
At approximately 4:00 p.m. a decision was made to place Schubring on paid
Also around 4:00 p.m., Captain Hettrick rechecked the December schedule and found
squeezed in Schubring's slot.
At approximately 4:20 p.m., Lieutenant Tews gave Schubring a letter from Chief
Effective today's date you are placed on administrative leave
with pay pending the outcome
of an internal investigation. This investigation will consider your fitness for duty and your
an incident that occurred on this date in the 3400 block of University Ave.
You are required to turn in your
department keys, police identification, deputy card, and
badges to Lt. Ron Tews. You are not to be present on the
premises of the Police facility including parking lot or garage, nor
be present in any state vehicle
unless you are required to do so at our request. Your authority to carry a weapon which is
from your police officer status is revoked. Failure to comply with these orders may result in
You will be contacted regarding
arrangements we may need to make with you as our
33. On December 15, 1995, in addition to placing Schubring on administrative leave,
Riseling contacted Dane County Sheriff Richard Raemisch and requested that Raemisch
Schubring's authority as a Dane County Deputy Sheriff. As a result of the request,
Schubring's authority as a Dane County Deputy Sheriff. Schubring was informed by
Bernie Reinfeldt in a phone conversation on December 15, 1995, that his authority as a
was suspended. Written notice of this suspension was given to Schubring on December 18,
Chief Riseling also contacted Schubring's part-time employer, the Village of
this date. Chief Riseling called Terry Ninneman, the Chief of the Shorewood Police
told him that she had suspended Schubring "and that she felt it would be appropriate if I
suspend Paul." She told Ninneman that she had called the Dane County Sheriff's
arranged to have Schubring's deputy status revoked. She also told Ninneman that if he
circumstances of the suspension that I wouldn't let Paul work for me." Ninneman told Chief
that he had talked to Schubring and reviewed the police report and that he was not going to
Schubring. Chief Riseling then told Ninneman that Schubring was restricted from campus
if Schubring continued to work for Shorewood Ninneman "was not allowed to have him
campus." Ninneman said that would be difficult because part of the campus was in the
Shorewood Hills and Chief Riseling responded that if Schubring came on campus he would
arrested. Thereafter, Ninneman and Chief Riseling agreed that Schubring would not come
campus as part of mutual aid or routine patrol but that he could answer specific calls. Chief
informed Ninneman that Schubring was not to come to the UWPD offices.
34. On December 16, 1995, Officer Sasso found the lavender colored original of
Absence Notification for Union Business for December 15, 1995, in Schubring's mailbox.
December 17, 1995, Sergeant Burke found a copy of the aforesaid notice in his mailbox at
35. On December 18, 1995, Chief Riseling called Dr. Eric Hummel, a licensed
with Affiliated Psychological Resources in Madison, Wisconsin, for the purpose of arranging
psychological evaluation of Schubring. Chief Riseling told Hummel that there apparently had
some physical contact between Schubring and a delivery person and Page 15
manager of a pizza establishment. Chief Riseling also told Hummel that Schubring
was the President
of the Union and that he had "total freedom of speech" while conducting Union business.
told Hummel that there had not been any incidents on the job where Schubring was
verbally abusive since 1992, but that there were some incidents of concern in his role as
person. Chief Riseling informed Hummel that some people were raising an issue over
coming to grievance meetings in his uniform and were questioning whether or not he was
an intimidating posture by wearing his weapon and placing his hand on his gun or near his
there was intense verbal interaction going on." Hummel told Chief Riseling he had time
December 19, 1995, to do an evaluation.
36. By letter dated December 18, 1995, Chief Riseling "ordered" Schubring to see
Hummel for "an evaluation for fitness for duty" on December 19, 1995, and "to sign all
release so that Dr. Hummel may share the evaluation results" with the Department. Chief
noted: "Failure to appear may result in discipline up (sic) and including termination."
37. Paul Schubring met Dr. Hummel on December 19, 1995. Schubring provided
with a variety of written materials and advised Hummel that he should contact the Shorewood
Police Chief. Schubring told Hummel that it was fair to say that his relationship with the
not very good and that his suspension was more a "personal vendetta" than incident based.
38. On January 4, 1996, Lieutenant Johnson and Lieutenant Glen Miller conducted an
investigatory meeting with Paul Schubring.
39. On January 5, 1996, Dr. Hummel had a phone conversation with Chief Riseling
administrative assistant in which he asked for information regarding Schubring's management
stress, anxiety or anger. In particular, Hummel requested anything in writing relating to
incidents in which Schubring exhibited "reactions of a strong nature" relating to the aforesaid
Captain Hettrick assembled various materials and forwarded the materials to Hummel for his
40. Dr. Hummel submitted an eight page report to Chief Riseling on January 25,
summary, Hummel wrote:
I was asked to provide an independent evaluation of Officer
Schubring related to his ability
to perform his job duties, specifically in regard to the extent to which he is at risk related to
control of anger, stress, frustration. I am aware from you, Officer Schubring, Attorney
has contacted me on two occasions, and through a newspaper article which Officer Schubring
sent, that his situation is already placed in the legal arena. This
independent evaluation is
specifically intended to describe Officer Schubring's personality characteristics related to his
performance. I did not investigate nor form an opinion as to the legal appropriateness of any
conduct or that of the University of Wisconsin Department of Police & Security.
Officer Schubring has personality
characteristics which result in a moderate risk of
undercontrolled aggression in circumstances which includes a belief that he is being poorly
unfairly dealt with, or aggressively challenged about his conduct or when he perceives others
strongly or unnecessarily challenge him on a personal level. He can become abruptly
under pressure. Most often, his reaction will be verbal. He can become irritable, hasty,
self-righteous, and aggressive. In the absence of stress and psychological threats, Officer
appear peaceful, but tightly controlled.
Officer Schubring indicated a desire to
work hard and be seen as a model officer and citizen.
He has a high degree of energy which at times leaves him over-excitable and easily
can be suspicious of others and he does not take criticism well.
Officer Schubring reported that he has
been treated for an anxiety or stress disorder, including
occasional psychotherapy and regular use of an anti-anxiety medication. I would anticipate
treatment providers will describe Officer Schubring in positive terms, particularly in his
desire to do
well and his general ability to monitor the intensity of his reactions. From general
his self-report, Officer Schubring presents himself as well controlled and maintained. He
through rather rigid self-monitoring to contain himself and put his best foot forward. It is
that this works well for Officer Schubring a vast majority of the time, however, there will be
occasions where he displays more intensity than is appropriate or healthy.
Thank you for asking me to evaluate
Officer Paul J. Schubring. You may have specific
questions about Officer Schubring's current ability to perform his job. Please contact me if
additional matters you would like me to address as a result of this evaluation.
41. On February 2, 1996, Chief Riseling faxed Dr. Hummel five pages of detailed
concerning statements contained in his report. The fax concluded with the following seven
1) Does Paul pose a threat to the safety of himself, coworkers,
customers, arrestees or anyone
else in the community? If so, under what circumstances?
2) Is Paul capable of returning to work and
performing all of the duties of a Police Officer? If
not, could he return to work and perform these duties with modifications or accommodation?
3) If there are concerns about Paul's mental
health status could we expect a resolution of these
concerns with treatment intervention? If so, what kind of treatment would you recommend?
is the prognosis and expected length of treatment for resolution? Does Paul have a
4) In light of the fact that Paul has been
receiving treatment for anxiety for approximately 14
months, can we expect improvement in the future?
5) Can we depend on Paul to perform well
in pressure situations, remaining calm and reacting
in a polite, efficient and professional manner that promotes confidence in him from the
6) Do you have any data to support your
conclusions? If so, may I have copies of that data?
7)If this were a pre-employment
psychological test for this Department and Officer Schubring
received these current test and interview results what would be your recommendation
suitability for employment?
42. Dr. Hummel responded to Chief Riseling's questions on February 7, 1996, with a
page single spaced letter. Among other things, Hummel commented on a "one-page letter
17, 1992, regarding the assessment Mr. Duberry conducted related to Officer Schubring.
assessment differs from my examination in several ways. . . ." Hummel noted particularly
Duberry, he found that Schubring "does, in certain conditions, exhibit a diminished ability to
his anger, raising the potential for inappropriate work behavior." Hummel also noted that
"is at higher risk to display excessive force or an inappropriate anger reaction in a 'more
circumstance' including if he perceived the public to treat him poorly or unfairly." Hummel
added that Schubring "angers quickly," and that when he angers, "there is a significant
his anger." Hummel noted that although Schubring worked very hard at containing his
anger, he was
"not able to always express or contain these characteristics in a manner which avoids
expression." Hummel also pointed out that:
The description was intended to indicate that Officer Schubring is
able to function relatively well
in his duties as a police officer, remain organized, and function independently most of the
risk of inappropriate behavior related to his job duties relates to the risk level of physical
and aggression in circumstances which are described in the summary of my 1996 report,
when the circumstances include his belief he is being poorly treated, unfairly dealt with, or
aggressively challenged about his conduct or when he believes others to strongly or
challenge him on a personal level. The risk is highest when Officer Schubring does not
expect such a reaction from others.
Hummel repeated that "most often" in challenging confrontations Schubring would
verbally and that Schubring was "tightly controlled" and "works hard through rather rigid
self-monitoring to contain himself and put his best foot forward."
In response to a question regarding Schubring's ability to return to work, Hummel
Officer Schubring could perform most of the job duties of a police
officer, except for the
circumstances which are not anticipated or predicted, which, unfortunately, is often a routine
law enforcement. He will not consistently handle well his duties when he is unexpectedly
in an aggressive or challenging manner, when his authority is not reasonably respected, or
attempts to chide or embarrass him.
Officer Schubring needs additional
education and treatment in anger control and stress
management as part of his being able to perform all of his job duties.
Hummel gave no opinion on Schubring's
suitability for employment stating:
The pre-employment screening is different
than an independent evaluation, therefore, I could not
make definitive statements as to how my recommendations, beyond encouraging a police
to carefully review references regarding Officer Schubring's previous work history,
it relates to his ability to consistently manage pressure situations relating to his being
his authority, accepting feedback, particularly critical feedback from authority figures, or the
of use of excessive force. Prior incidents of such behavior would be a strong negative.
43. On February 8, 1996, a Pre-Disciplinary Investigation (PDI) for Schubring was
order to afford Schubring the opportunity to be evaluated by a psychologist of his own
Chief Riseling gave Schubring several months to do so. On April 22, 1996, Schubring's
issued his report. In his report, a copy of which was submitted to Chief Riseling, Dr.
the following about Schubring:
Conclusion/Recommendations: Overall, Mr.
Schubring presents as a low risk for anger/abusive
outbursts. However, given Mr. Schubring's occupation in law enforcement, he appears to be
position to benefit from counseling aimed at improving conflict resolution tactics and
anger arousal. It is recommended that he become involved in specific anger management
preferably a structured cognitive behavioral regimen focusing on skill development.
44. By letter dated June 10, 1996, Chief Riseling informed Schubring that his
terminated. The letter stated, in material part, as follows:
. . .
As a result of your conduct in the incident
of December 15, 1995, and the information revealed
during the investigation that followed, I have determined that it is necessary to terminate
employment with this Department, effective immediately. The bases for my decision are
. . .
I find that your conduct in the incident of
December 15, 1995, as well as your misrepresentations,
falsifications or lies during the course of the investigation into that incident, constitute
the following Department policies and University of Wisconsin employe work rules:
1. University of Wisconsin-Madison
Department of Police and Security Policy (hereinafter UW-Madison Police Policy) 112.00
Use of Force; Sections 112.01 and 112.02.
2. UW-Madison Police Policy 107.00
Uniforms; Section 107.08
3. University of Wisconsin System
Classified Employees Work Rules Prohibited Conduct
(hereinafter UWS Work Rules)
I. Work Performance
B. Loafing, loitering, sleeping or engaging
in unauthorized personal business.
D. Falsifying records or giving false
information to other state agencies or to employees
responsible for record keeping.
E. Failure to provide accurate and
complete information whenever such information is required
by an authorized person.
G. Negligence in performance of assigned
4. UWS Work Rules
IV. Personal Actions and Appearance
A. Threatening, attempting, or doing
bodily harm to another person.
B. Threatening, intimidating, interfering
with, or using abusive language towards others.
J. Failure to exercise good judgment, or
being discourteous, in dealing with . . . the general
The violations of the use of force policy are
serious. A police officer is the only occupation given
the authority to use force, up to and including deadly force, in dealing with the community's
You violated this trust when you utilized physical force on two members of the community
December 15, 1995 without sufficient justification. Your willingness to use force in that
solve a minor parking dispute directly impacts the University's confidence in your judgment
as a law
enforcement officer. You have been warned before about poor judgement and your loss of
An additional distressing aspect of this case
is the fact that you gave false information during the
course of the investigation. Confidence in you as a police officer depends on your honesty.
officer must report incidents and arrests accurately and testify in court. The public and this
Department must be able to trust you. You have shattered that trust with your misconduct.
There were no mitigating circumstances
revealed during the investigation of this incident that can
excuse your loss of control and your subsequent dishonesty. You have consistently
you do not have any psychological problems with respect to your ability to control your
Pursuant to my request, you submitted to a psychological evaluation after this incident. You
also submitted a psychological evaluation by an individual who you selected. Neither
indicates a psychological disability. Accordingly, you are fully responsible for your conduct
activities related to the incident of December 15, 1995 and during the subsequent
. . .
45. Respondent's decision to terminate Paul J. Schubring was based on the activities
in its letter of termination set forth in Finding of Fact No. 44 above and was not in
Schubring's protected activity. Nor did said action have a reasonable tendency to interfere
restrain or coerce Complainants in the exercise of their rights under Sec. 111.82, Stats.
46. Respondent's actions, as noted in Findings of Fact Nos. 11, 12, 15, 16 and 17,
in retaliation for Schubring's protected activity. Nor did said actions have a reasonable
interfere with, restrain or coerce Complainants in the exercise of their rights under Sec.
Based upon the foregoing Findings of Fact, the Examiner makes the following
CONCLUSIONS OF LAW
1. Respondent, by its actions in response to Paul Schubring's phone call to PCO
on or about August 24, 1994, and the Stallsmith grievance meeting which was held in
by its failure at any time material herein to require "Officer Schubring get out of uniform
and put on
plain clothes when interacting with non-Police and Security personnel on Union business,
on duty"; by expressing concerns that it might reflect poorly on the UW Police Department
(Schubring) lost his temper when meeting with the UW Chancellor's Office; and by
Schubring on June 13, 1995, that Chief Riseling had some concerns about his "tone" or
when he acted in his capacity as steward while engaged in a grievance meeting on or about
1995, was not motivated in whole or in part by hostility toward the exercise of Schubring's
rights and, therefore, has not committed unfair labor practices within the meaning of Sec.
111.84(1)(c), or derivatively (1)(a), Stats.
2. Respondent, by its actions noted in Conclusion of Law No. 1 above, has not
with, restrained or coerced Complainants in the exercise of their rights under Sec. 111.82,
therefore, has not committed an unfair labor practice within the meaning of Sec.
3. Respondent, by terminating Paul J. Schubring on June 10, 1996, did not retaliate
Schubring for protected activity; thus, Respondent has not committed an unfair labor practice
the meaning of Sec. 111.84(1)(c), or derivatively (1)(a), Stats.
4. Respondent, by terminating Paul J. Schubring on June 10, 1996, has not interfered
restrained or coerced Complainants in the exercise of their rights under Sec. 111.82, Stats.,
therefore, has not committed an unfair labor practice within the meaning of Sec.
5. Respondent, by the actions complained of in terminating Paul J. Schubring on June
1996, has not acted to initiate, create, dominate or interfere with the formation or
WSEU, AFSCME, Council 24 or Local 171, and therefore, has not committed an unfair
practice within the meaning of Sec. 111.84(1)(b), Stats.
Upon the basis of the above and foregoing Findings of Fact and Conclusions of Law,
Examiner makes and issues the following
IT IS ORDERED that the complaints filed in the above-entitled matters be, and the
hereby are, dismissed.
Dated at Madison, Wisconsin, this 14th day of December, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Dennis P. McGilligan, Examiner
STATE OF WISCONSIN
FINDINGS OF FACT, CONCLUSIONS OF LAW
In their brief, Complainants make the following principal arguments regarding Case
PP(S)-247. One, Respondent Chief Riseling engaged in conduct which interfered with and
employes in the exercise of protected rights. Complainants allege the following conduct
111.84(1)(a), Stats.: Chief Riseling's threat of discipline for Schubring advising Foley he
contacted by management; Chief Riseling's admonition that if Schubring did not behave when
as a steward he would be disciplined; Chief Riseling's statements to Schubring that he should
in uniform when acting as a steward; Chief Riseling's conversation with Schubring
scheduled meeting with the Chancellor's Office; and subjecting Schubring to a
investigation for his tone of voice or attitude in conducting Union business. Two,
Riseling discriminated against Complainants as a result of the aforesaid activity.
In said brief, Complainants also make the following principal arguments regarding
PP(S)-254. One, Respondent's placement of Schubring on administrative leave, its order to
Schubring to undergo a psychological evaluation and its termination of his employment all
Sec. 111.84(1)(c), Stats. In support thereof, Complainants argue that it is undisputed that
engaged in conduct protected by Sec. 111.82, Stats. Complainants also argue that Chief
her management team were aware of Schubring's protected activities and were hostile to said
activities. As evidence of this hostility, Complainants rely on the following: Chief
in contacting various high ranking University and State officials immediately following the
without actually knowing what in fact took place; her decision to order Schubring to
submit to a psychological examination; and the information Chief Riseling provided and the
that she had with the psychologist doing the aforesaid examination. As further evidence of
Riseling's hostility and motivation in discharging Schubring, Complainants make the
allegations: the reasons asserted by Chief Riseling for terminating Schubring greatly
conduct and were not sufficient to terminate his employment; the disparity between the
which certain other officers were disciplined for the same or similar conduct and Schubring
attributable to Schubring's Union activity; Sergeant Burke's termination of his friendship
Sasso and failure to dispute Sasso's testimony corroborating Schubring's testimony; and
Riseling's cancellation of her plans to attend the retirement party for Shorewood Police
Ninneman because she was concerned that Schubring would be present, and create a scene.
Complainants also argue that the above actions of management reacting to
protected activities were undertaken in a manner that tended to interfere with the assertion of
protected rights, and therefore, violated Sec. 111.84(1)(a), Stats.
Finally, Complainants argue that Respondent's termination of Schubring violated Sec.
For a remedy, Complainants ask that the Examiner find the appropriate statutory
Complainants also ask that the Examiner order Respondent to reinstate Schubring to his
position and make him whole for all wages and benefits lost since the termination of his
In their reply brief, Complainants make the following new principal arguments
PP(S)-247. One, because in Respondent's brief the incidents which are the basis of the
in Case PP(S)-247 are not denied and Respondent does not contend that the conduct did not
a reasonable tendency to interfere with, restrain or coerce employes in the exercise of
rights, the Examiner should enter an order finding the conduct alleged in the aforesaid case
Sec. 111.84(1)(a), Stats. Two, contrary to Respondent's attempt to portray Chief Riseling as
"Mother Teresa" because she was "lenient" when imposing discipline on Schubring and
"always went to bat for her officers," Chief Riseling's hostility toward Schubring is evident
Respondent's brief, i.e. Respondent claims Schubring filed "numerous petty grievances" just
"harass" Chief Riseling and that he filed said grievances to clog up the system rather than
legitimate concerns. Complainants conclude that prior to the termination of Schubring's
Chief Riseling on several occasions engaged in conduct that had a reasonable tendency to
with, restrain, or coerce employes in the exercise of their Sec. 111.82 rights. Complainants
and expand upon the incidents first cited in their briefs in support thereof.
In said reply brief, Complainants reiterate many of their arguments noted above
PP(S)-254, all alleging that placement of Schubring on administrative leave, ordering him to
a psychological evaluation and the termination of his employment all violated Sec.
Stats. In addition, Complainants make the following new main points. One, Chief Riseling
follow standard procedure to conduct an investigation before making the decision whether to
a psychological evaluation because she knew that requiring Schubring to submit to a
evaluation might provoke him and he might refuse to submit to the exam giving her a reason
terminate his employment. Two, "the best evidence of the fact that Schubring's labor
a factor in the decision to place Schubring on administrative leave is the evidence concerning
treated when he was involved in an incident involving the use of force . . . in 1992."
In that incident
Schubring was not placed on administrative leave while the incident was investigated and was
asked to have a psychological evaluation until after the incident. Of course, in 1992 when
occurred, Schubring was not an officer or steward in the Union. (Emphasis in
original) Three, the
actions taken by Chief Riseling upon learning Schubring was involved in the December
demonstrate her hostility toward Schubring and are "a classic illustration of getting your
order so you can accomplish the results you want." Four, Respondent acted improperly by
claiming that Schubring's prior discipline was a factor in the decision to terminate his
In conclusion, Complainants reiterate that the evidence of Respondent's unlawful
in taking the aforesaid action against Schubring is clear, convincing and
satisfactory and establishes
a violation of Sec. 111.84(1)(c), Stats. (Emphasis in original)
Respondent basically argues that Complainants have failed to meet their burden. In
regard, Respondent first argues that the Examiner can only address Complainants' statutory
and is without jurisdiction to determine whether there was just cause to terminate Schubring,
raised by Complainants in the Amended Complaint. Respondent next argues that with
respect to Sec.
111.84(1)(b), Stats., Complainants have failed to submit any proof or make any arguments
Respondent's conduct threatened the Union's independence or reduced the Union to a mere
the Employer. Therefore, according to Respondent, the only matter before the Examiner is
Respondent violated Sec. 111.84(1)(a), Stats. In the opinion of Respondent, Complainants
prove by a clear and satisfactory preponderance of the evidence the Respondent's conduct
to interfere with, restrain or coerce Union-represented employes in the exercise of rights
by Sec. 111.82, Stats., and therefore, this claim must be dismissed.
In support of the above, Respondent initially argues that Schubring's version of what
totally lacks credibility. In this regard, Respondent claims that the record evidence supports
that all of Schubring's versions of when he allegedly gave Complainants' Exhibit No. 14
he would be off for two hours on December 15, 1995 to help move the Union office) to
Burke are rank falsehoods. Instead, according to Respondent, the record clearly supports a
that Schubring drafted Complainants' Exhibit No. 14 after the December 15, 1995 incident as
of his cover up. Respondent also claims other evidence supports its claim that Schubring's
that he was "off duty" as well as his version of what occurred at the new Union office
numerous falsehoods. In this regard, Respondent cites the recorded phone conversation
Schubring and Lieutenant Johnson at 9:25 a.m. on December 15, 1995, wherein Schubring
he was not going to help with the move. Respondent also cites other conversations wherein
Schubring indicated he
was not involved in the move. In conclusion, Respondent alleges that the only credible
what actually happened on December 15th is that Schubring never planned
to be off duty between
noon and 2:00 p.m.; that Schubring thought he could help with the move while "on
duty' and no one
would notice; that when the incident occurred, Schubring realized that he had to eliminate
indicia and fabricate evidence of being off duty; that Schubring made numerous provable
errors in his
attempt at cover up; and that Schubring is guilty of the actions complained of. Respondent
claims that the record supports a finding that Schubring never asked for two hours time off
date in question; that he helped with the move of the Union offices while on duty; that he
involved in a parking dispute which escalated into something more serious, in part, due to
behavior; that he manufactured a story to cover up for his actions; that he caused a red mark
Schmidt's neck; that he was abusive to Bonnie Brink and that he acted unprofessionally on
In support of its claim that Schubring acted improperly with respect to the December
incident, Respondent next argues that Schubring has a propensity for such conduct because
engaged in similar behavior in the past, including dishonesty, use of excessive force and fits
uncontrolled temper and rage. For example, Respondent notes that in 1991 Schubring broke
State office to cheat on a competitive promotional exam; that he has been disciplined for
unnecessary physical force in the past; and that he has previously exhibited unpredictable and
uncontrollable fits of rage and anger.
Respondent next argues that psychological reports establish that Schubring did not
psychological problem or disability which might explain his behavior.
Finally, Respondent argues that Complainants' contention that Schubring was
part, because of his Union affiliation and activities is without support in the record. In
thereof, Respondent claims that Chief Riseling was unbelievably lenient when imposing
against Schubring for acts of misconduct; that Chief Riseling went to bat for her officers and
Schubring acknowledged that Schubring's filing of grievances was uncalled for and hardly an
of "clean hands," rather they showed that Schubring and others knew how to file numerous
grievances designed to harass and clog up the grievance machinery, instead of challenging
issues; that others besides Schubring were suspended with pay while alleged misconduct was
investigated; and that other instances which Complainants cite do not support a conclusion
Schubring was the victim of Union animus at any time, including when he was terminated.
addition, Respondent notes that the incident involving PCO Foley demonstrates Schubring's
of his position; that Schubring acted unreasonably as a Union steward and representative; that
was nothing wrong with Chief Riseling advising Schubring not to do something which might
the Department's efforts when he met with the Chancellor's Office; that Chief Riseling sent
to psychological evaluation for mental health evaluations; that the discipline imposed on John
was warranted and unrelated to his position with the Union; that the discipline imposed
against Schubring versus that imposed against Messrs. Hooker, Tyler and Feucht does
demonstrate an anti-union motivation; and that there were substantial differences between the
in which Mr. Van Natta engaged and the conduct of Schubring.
Respondent concludes by noting that as cited in Complainants' brief the mere fact
employer engages in violations of SELRA does not mean that Schubring's termination will be
overturned. Respondent notes that a complainant must prove that the termination was
part by hostility. (Emphasis in original) Respondent claims that the record is absolutely
void of any
credible evidence which establishes a nexus between Schubring's concerted activity and his
For the foregoing reasons, Respondent submits that the Complainants have failed to
burden and requests that the complaints be dismissed on their merits.
Both parties, in advancing the above arguments, cite numerous authorities and
support of their positions.
Section 111.84(1)(a) Interference
Section 111.84(1)(a), Stats., provides that it is an unfair labor practice for the State
(a) to interfere with, restrain or coerce state employes in the
exercise of their rights
guaranteed in s. 111.82.
Section 111.82, Stats., provides the following with regard to the rights of employes:
111.82 Rights of state employes. State
employes shall have the right of self-organization and
the right to form, join or assist labor organizations, to bargain collectively through
of their own choosing under this subchapter, and to engage in lawful, concerted activities for
purpose of collective bargaining or other mutual aid or protection. Such employes shall also
the right to refrain from any or all of such activities.
The Commission has consistently held that it will find interference on the part of an
in the following circumstances:
Violations of Sec. 111.70(3)(a)1, Stats., occur when employer
conduct has a reasonable tendency
to interfere with, restrain or coerce employes in the exercise of their Sec. 111.70(2) rights.
evaluating the conduct in question under all the circumstances, it is concluded that the
a reasonable tendency to interfere with the exercise of Sec. 111.70(2) rights, a violation will
even if the employer did not intend to interfere and even if the employe(s) did not feel
coerced or was
not in fact deterred from exercising Sec. 111.70(2) rights.
Jefferson County, Dec. No. 26845-B (WERC, 7/92), aff'd 187 Wis.2d 647 (CtApp
WERC v. Evansville, 69 Wis.2d 140 (1975) and Beaver Dam Unified School District, Dec.
No. 20283-B (WERC, 5/84); City of Brookfield, Dec. No. 20691-A (WERC, 2/84); Juneau
County, Dec. No. 12593-B (WERC, 1/77).
While the above holding references statutory provisions of the Municipal Employment
Relations Act (MERA), those provisions are substantively identical to Secs. 111.84(1)(a) and
of SELRA, respectively, and the same test for whether interference occurred applies under
statutes. State of Wisconsin, Department of Employment Relations v. WERC, 122 Wis.2d
132, 143 (1985).
In their complaint in Case PP(S)-247, Complainants allege that the following
part of a pattern of harassment and intimidation: an incident on or around August 23, 1994,
Chief Riseling "called Officer Schubring in for a pre-disciplinary interview and stated to him
'would not allow him to upset employees even if it is on Union business'"; an incident in
1995, wherein Chief Riseling advised Schubring "that if he didn't 'behave' in the context of
as Union Steward he could be disciplined as insubordinate"; a directive from Chief Riseling
Schubring to get out of uniform and put on plain clothes when interacting with non-Police
Security personnel on Union business, even when on duty; an incident in May of 1995,
Riseling advised Schubring that she understood that he had a meeting with the Chancellor the
day and that she would be "very angry if anything happens and we have a problem"; and in
on June 15, 1995, wherein Schubring was subjected to a preliminary disciplinary
Chief Riseling for alleged "tone" or "attitude" in his capacity as Steward while engaged in a
meeting earlier in June. In addition, Complainants argue that Respondent essentially admits
aforesaid complaint allegations in Case PP(S)-247 by not responding to same in its brief; and
therefore, the Examiner should enter an order finding the appropriate statutory
Complainants also argue that Respondent's brief is further evidence of Chief Riseling's
toward Schubring's exercise of protected activity.
The problem with the Complainants' allegations is that there is no persuasive
record in support of same. 1/ To the contrary, the record indicates that Respondent acted
in the situations complained of by Complainants and its conduct did not have a reasonable
to interfere with the exercise of Sec. 111.82 rights. In this regard, the Examiner notes that,
to Complainants' assertion, Chief Riseling never told Schubring that she "would not allow
upset employees even if it is on Union business." She did have an informal discussion with
regarding a phone call to PCO James Foley in which he informed Foley that he was probably
to be investigated over a remark he made to Jodi Hollis as she went into a grievance meeting
he faced probable discipline over his comments. She testified persuasively that they had an
informal discussion on the subject; "shook hands and parted." No discipline was ever
Schubring as a result of this meeting. The Examiner also notes that, contrary to the Union's
assertion, Chief Riseling never told Schubring that if he didn't "behave" in the context of
Union Steward that he could be disciplined as insubordinate. Chief Riseling did discuss with
Schubring how she would "de-escalate" the situation with a Union steward who was out of
However, this was a hypothetical discussion and Chief Riseling never advised or warned
1/ In making this finding, the Examiner has been
presented with conflicting testimony regarding certain
material facts. As a result, it has been necessary to make credibility findings, based in part
on such factors as
the demeanor of the witnesses, material inconsistencies and inherent probability of testimony,
as well as the
totality of the evidence. Schubring's testimony is replete with examples of inconsistent,
confusing and unresponsive statements. For example, Schubring testified during cross, at
page 144, that it was
him not Security Supervisor James Williams who wanted to end their grievance meeting.
When shown a copy
of Complainants' Exhibit No. 8, Schubring admitted that "My recollection was probably
Schubring also gave
conflicting statements regarding when he allegedly gave Complainants' Exhibit No.
14 (the notice that he would be off for two hours on December 15, 1995, to help the Union
move its office) to
Sergeant Burke. At his January 4, 1996 interview with Lieutenant Johnson, Schubring stated
that he provided
Sergeant Burke and Lieutenant Johnson with a copy of the aforesaid notice on "11/27/95."
No. 23, Part I, Tab Q, p. 5) Then, on January 23, 1996, Schubring presented Lieutenant
Johnson with a copy
of the first shift schedule showing that Schubring was off on UB on December 15, 1995,
which had typed on it
"Filed at office at 11-28-95." (Respondent Exhibit No. 23, Part I, Tab W, p. 2) At his PDI
on February 8, 1996,
Schubring stated that he and Officer Sasso met with Sergeant Burke on November 27, 1995,
schedule slots and he handed Burke a Union absence notification form. (Schubring and
Sasso were not scheduled
to work together that day.) (Respondent Exhibit No. 23, Part II, Tab BBB) Schubring also
stated on that date
that he filed
a request and accompanying schedule at the Union
offices on November 28, 1995. Yet, at the hearing, when
confronted with conflicting statements on this point, Schubring admitted that he had "back
dated" the Union
absence notification form provided to Lieutenant Johnson during his investigation of the
December 15, 1995
incident to reflect that it was received in the Union office on "Nov 28 1995." (Tr. at 563)
This, despite testifying
earlier that the Union stamp was something "the office staff generally does when they are
(Tr. at 560)
Another example of
Schubring's lack of credibility when testifying is his claim initially that Respondent
Exhibit No. 10 (Department Guidelines for Union Activities) was backdated to December 14,
1995. (Tr. at 492)
Later, he admitted that it was possible for said document to be issued on said date but
received later by both
Department supervisory personnel and the Union office. (Tr. at 493) He had just
"assumed" to the contrary.
The Examiner also finds
Schubring's lack of recollection over whether he filed a complaint or grievance
over the Williams' incident less than persuasive. Schubring initially testified that he couldn't
remember if he
filed a grievance or complaint with management over the issue. (Tr. at 494) When shown
No. 11, Schubring admitted that he filed a complaint over the matter but didn't remember
with whom. (Tr. at
495) When shown Respondent Exhibit No. 12, Schubring remembered that he also filed a
grievance on the
incident. (Tr. at 496) Then Schubring stated he didn't "remember receiving any
correspondence or anything
from management" on the subject. (Tr. at 497) After being shown Respondent Exhibit No.
identified said document as a response to his complaint regarding Williams but stated "I
don't remember seeing
it, but it's addressed to me." (Tr. at 497) The Examiner points out that all of the above
testimony is in regard
to an incident which is referenced in paragraph 14 of Complainants' complaint in PP(S)-247.
finds Schubring's lack of memory on this subject perplexing especially in light of his better
other matters allegedly supporting his position which are the subject matter of this
In contrast to the above,
Chief Riseling provided clear and persuasive testimony regarding the events in
dispute and particularly in relation to the December 15, 1995 incident. Her testimony is
corroborated by other
witnesses, particularly Captain Hettrick, Lieutenant Tews and Sergeant Burke. Other
corroborated their testimony. Therefore, based on the foregoing, the Examiner credits the
testimony of Chief
Riseling, et al. over the testimony of Schubring regarding all material facts involved in the
subject matter of
The record also does not support a finding in support of the other allegations by
Complainants. For example, there is no persuasive evidence that Chief Riseling ever
Schubring while on duty to get out of uniform and put on plain clothes when conducting
business with non-Police and Security personnel.
The issue is closer regarding Complainants' allegation that Chief Riseling told
during a conversation in June, 1995, concerning a meeting Schubring was having with the
Chancellor's Office: "I understand you have a meeting with the Chancellor tomorrow, and I
very angry if anything happens and we have a problem." Both Page 31
Schubring and Sharon Russ, a secretary in court services, testified that Chief Riseling
to the affect that she would be angry if there was a "negative response" or "problems" as a
the aforesaid meeting. However, Chief Riseling testified persuasively that she simply
Schubring of her concern that if he were to lose his temper with Henry Lufler of the
Office that this would reflect poorly on the Department. In addition, this statement was
made in the
context of a discussion between Chief Riseling and Schubring regarding Schubring's effort to
the Chancellor's Office of Local 171's opposition to the proposed budget cuts and potential
positions, a position that Chief Riseling shared. Based on the entire record, the Examiner
Chief Riseling's testimony that she said nothing improper during her conversation with
Finally, the Examiner notes that it is true that on June 13, 1995, during a
meeting Schubring was criticized by two representatives of Chief Riseling for his "tone" and
"behavior" during a grievance meeting involving Security Supervisor James Williams toward
of May, 1995. They also informed Schubring that Chief Riseling was "concerned about
acceptable behavior and actions in dealing with other members of the department."
Schubring was concerned and "sorry" for what had occurred in said grievance meeting. In
regard, the Examiner points out that following the grievance meeting Schubring and Williams
conciliatory conversation about the matter. Later, Schubring told Sergeant Burke that he was
that he yelled at Williams. When Burke brought Williams into the room where he was
Schubring, Williams and Schubring had a conversation in which both agreed that the
the grievance meeting had been unproductive. Schubring also indicated that he was sorry for
at Williams, but that he could not help it when he felt victimized by management.
Riseling and Schubring had an informal discussion regarding the incident in which Schubring
indicated that he felt bad about what had happened at the meeting and that he had apologized
Williams and wanted to lay the incident to rest because he and Williams had been friends for
Chief Riseling and Schubring then proceeded to talk about the similarities of their two jobs
they dealt with the tension that accompanied their jobs. Following this discussion, Chief
gave Schubring a copy of an article that appeared in "Women Police" which she
felt might be helpful
to Schubring in dealing with stress. In this context, the Examiner finds it difficult to
argued by Complainants, that Chief Riseling's comments regarding Schubring's actions and
in grievance meetings noted above were part of a pattern of harassment and intimidation of
as a result of his protected activities on behalf of Local 171 and the WSEU. The Examiner
points out that no discipline occurred as a result of this PDI meeting.
The Examiner also reaches the above conclusion based, in part, on the context in
aforesaid management concerns were raised. As noted by Chief Riseling: "We got into a
about the whole issue surrounding blowing up at people or losing tempers or flare-ups, those
of things." (Tr. at 1229) Other management representatives had also
expressed concern about their safety and the potential for physical harm as a result of
blow-ups during grievance and other types of meetings. (Tr. at 240, 599, 649-650, 653,
681, 683, 713-714, 792-794, 796, 917 and 934) In addition, Schubring's confrontational
at least sometimes prevented grievances from even being addressed. (Tr. at 602) In this
Complainants' arguments notwithstanding, the Examiner is of the opinion that Respondent's
representatives acted appropriately in raising these concerns about Schubring's behavior in
The Examiner agrees with Complainants' contention that Respondent did not respond
Complainants' allegations in the above case in its brief. Nevertheless, Respondent denied
allegations in its answer to PP(S)-247 and presented persuasive evidence and testimony in
to these allegations at hearing. Therefore, the Examiner rejects this argument of
The Examiner also rejects Complainants' argument that Respondent's statements in its
are further evidence of Chief Riseling's animus toward Schubring's protected activities. In
Complainants cite the following statements as evidence of said animus: "Schubring's Filings
Grievances was uncalled for and hardly an Example of 'Clean Hands'"; Schubring filed
petty grievances designed to harass and clog up the grievance procedure rather than to
legitimate issues; Schubring filed grievances just to file grievances and "harass" Chief
that Schubring acted in an unreasonable manner and abused his position as a Union
The problem with this argument is that Chief Riseling never made these statements. There is
persuasive evidence in the record that Chief Riseling had these opinions about Schubring's
activity. To the contrary, the record indicates that Chief Riseling was of the opinion, despite
concerns about Schubring's physical and verbal aggression in his role as Union
he was basically free to act as he saw fit in his Union role:
And then she briefly, in three or four sentences, tried to
me as a layperson that during
union duties a person representing the union has relative freedom of speech in those union
and that they were not behaviors or activities that typically could be, one could be disciplined
cause, because of the at the time Officer Schubring was a representative of the
union. So what I
had written there was total freedom of speech in union situations. (Tr. at 917)
Based on all of the above, and the record as a whole, and absent any persuasive
the contrary, the Examiner finds that by engaging in the conduct complained of Respondent
interfered with, restrained or coerced Complainants in the exercise of their Sec. 111.82,
Therefore, the Examiner has dismissed the Sec. 111.84(1)(a), Stats., charge.
Section 111.84(1)(c) Discrimination
Complainants also allege that Respondent's actions noted above violated Sec.
Stats. That provision provides that it is an unfair labor practice for the State:
To encourage or discourage membership in any labor
organization by discrimination in regard
to hiring, tenure or other terms or conditions of employment. This paragraph does not apply
to fair-share or maintenance of membership agreements.
In order to establish a violation of Sec. 111.84(1)(c), Stats., Complainants must
a clear and satisfactory preponderance of the evidence that (1) Schubring had engaged in
concerted activity, (2) that Respondent was aware of said activity and hostile thereto, and (3)
Respondent's action was based at least in part upon said hostility. State of Wisconsin,
Department of Employment Relations v. WERC, supra, at 140.
The record is undisputed that Complainant Schubring engaged in protected, concerted
activity, and that Respondent was aware of said activity. However, as noted above, the
not support a finding that Chief Riseling ever called Schubring in and told him that she
allow him to upset employees even if it is on Union business"; that she advised him that if he
"behave" in the context of acting as Union Steward that he could be disciplined as
she ever required Schubring to get out of uniform and put on plain clothes while on duty
interacting with non-Police and Security personnel on Union business; that she informed
prior to his meeting with the Chancellor's Office that she would "be very angry if anything
and we have a problem" or that she subjected him to a pre-disciplinary investigation based
his "tone" or "attitude" while he acted in his capacity as steward in a grievance meeting in
(Emphasis added) For these reasons, and the reasons discussed below in the DISCUSSION
of Case PP(S)-254 pertaining to Sec. 111.84(1)(c), Stats., charges in that case, the Examiner
it reasonable to conclude that Respondent had no hostility toward Complainants and took no
against Schubring, in part, due to his protected concerted activity. Therefore, the allegation
111.84(1)(c), Stats., violations has been dismissed.
Complainants have also alleged a violation of Sec. 111.84(1)(a), Stats. Inasmuch as
no Sec. 111.84(1)(c), Stats., violation, there is no derivative Sec. 111.84(1)(a), Stats.,
The Union basically argues that Respondent has violated Secs. 111.84(1)(a), (1)(b)
Stats., by terminating Paul J. Schubring. For the reasons discussed below, the Examiner
Section 111.84(1)(c) Discrimination
The basic thrust of Complainants' amended complaint is that Respondent placed
on administrative leave; ordered him to undergo a psychological evaluation and terminated
because of his protected activities. However, the record does not support a finding regarding
It is undisputed, as pointed out by Complainants in their brief, that Schubring was
in protected activity and that Respondent was aware of same. However, there is no
evidence in the record that Respondent and/or its representatives were hostile to said activity.
regard, the Examiner first addresses Complainants' claim that the manner in which Chief
reacted upon learning Schubring was involved in an incident at the Union office demonstrates
animosity towards Schubring's protected activity and her desire to get rid of him. In
Complainants cite Chief Riseling's immediate series of phone calls to high ranking University
for guidance concerning how to handle the incident at the new Union office without any
knowledge about what had happened; her decision to order Schubring to immediately submit
psychological examination and the information she provided the psychologist as examples of
Riseling's animosity toward Schubring and desire to get rid of him. However, given the
Schubring's employ-ment record including past conduct of a same or similar nature and the
seriousness of the allegations against Schubring as a result of the incident at the new Union
December 15th, the Examiner finds Chief Riseling's actions in contacting
various officials for advice
on how to proceed entirely appropriate. In addition, contrary to Complainants' allegation
above, Chief Riseling had some basic information prior to making calls for advice on how to
in the matter. In this regard, the Examiner points out that upon learning of the incident from
Lieutenant Tews, Chief Riseling contacted Jim Stratton of UW personnel to see if he was
to discuss the matter with her. (Tr. at 1232) Later, when Chief Riseling spoke with Stratton
Corcoran from the UW about the matter she had the following relevant information about the
I knew then that the Madison police had been called to 3433
University Avenue in response
to a police officer who had allegedly battered a citizen and was refusing to identify himself,
Madison police had responded, that that officer had in fact been Paul Schubring of the
I knew at that time that Paul admitted forcing the manager out
of the office after there had
been a parking dispute. I knew at that time that the dispatchers there were two of
them, Feucht and
Foley believed that Paul was on duty the entire day.
I knew at that time that the only indicator
in the MDC was that Paul was on duty and
available. I knew at that time that Lieutenant Johnson, the dispatchers had said that
Johnson had a conversation with Paul earlier in the day and that Paul told Lieutenant Johnson
not going to be involved with the move.
I knew at that time that the union had
moved from North Brooks Street to, at that time I
thought it was 3433 University Avenue. Let me think about what else I knew at that point.
as of 20 minutes after two in the afternoon that's what I knew.
Q Okay. So you related this to Mr.
Corcoran and Mr. Stratton; is that correct?
A Yes. (Tr. at 1233-1234)
After relaying the above information to them, and after asking for advice "on what to
next," they advised her to contact the Department of Employment Relations, the UW legal
the University's Employee Assistance Program. (Tr. at 1233) Based on the foregoing, the
finds that Chief Riseling had sufficient information upon which to proceed, and acted
properly as a
result thereto. In addition, her actions were consistent with past practice in this area. (Tr. at
Therefore, the Examiner rejects the first claim of Complainants that Chief Riseling's
calls on the date in question are evidence of her animosity toward Schubring and desire to
get rid of
Likewise, the Examiner rejects Complainants' claim that Chief Riseling's decision to
Schubring to immediately undergo a psychological examination is further evidence of her
toward Schubring. In this regard, the Examiner finds that there was nothing unusual about
Riseling sending Schubring for a psychological evaluation based on Schubring's past record
extreme response to the parking dispute on December 15, 1995. Chief Riseling had sent
for a psychological evaluation back in 1992 for the same or similar conduct including using
unnecessary force toward a citizen. (Respondent Exhibit No. 23, Part II, Tab PPP, pp. 2
Schubring had displayed similar examples of unpredictable and uncontrollable fits of rage and
in the past. (Respondent Exhibit No. 23, Part II, Tab PPP, pp. 1 and 2. See also
Nos. 24, 25, 26, 28, 38 and 23, Part II, Tab QQQ) Chief Riseling was very concerned
Schubring's conduct and the potential consequences of Schubring's behavior. (Tr. at
1266-1267) She wanted to know if it was safe to put Schubring out on the streets again.
1239) Chief Riseling had ordered other officers to undergo a psychological examination;
1309) although not as often as alleged by Complainants. (Tr. at 1278) Therefore, the
that Chief Riseling's requirement that Schubring be evaluated in December, 1995, was
the circumstances and standard procedure, not some act of discrimination or retaliation.
In addition, the Examiner rejects Complainants' claim that the information Chief
provided the psychologist demonstrates her animosity toward Schubring and her desire to
his employment. In this regard, the Examiner notes that Chief Riseling only provided
Eric Hummel, the psychologist, after he asked for "info, if any, of situations at work where .
. . there
may have been a concern regarding Mr. Schubring's management of stress, anxiety, or
(Complainants' Exhibit No. 35, page 9; Tr. at 934-935) Chief Riseling responded by
Captain Debra Hettrick to assemble materials to forward to Hummel. Hettrick then had
in management prepare memorandum concerning Schubring. (Complainants' Exhibit No.
accounting "of some incidents involving Mr. Schubring" was then forwarded to Hummel.
(Complainants' Exhibit No. 38) An examination of these documents reveals that they were
to Schubring although not necessarily "derogatory" to him as alleged by Complainants.
Following Hummel's report, Chief Riseling faxed Hummel five pages of questions
statements contained in his report. (Complainants' Exhibit No. 40) The fax concluded with
questions regarding Schubring's suitability to return to work, his mental health status, his
for improvement, any data to support the aforesaid conclusions and a question regarding his
recommendation of Schubring's ability to work as a police officer. Complainants do not
nor does the record support, a finding that these were not appropriate questions given the
Complainants argue that Chief Riseling used this evaluation process as a means to get
Schubring. However, the record does not support a finding regarding same. To the
record indicates that Chief Riseling gave Schubring an opportunity to go to a psychologist
independent of Hummel so that she would have additional information to consider regarding
Schubring's mental state. (Tr. at 1259-1260; Complainant Exhibit No. 43) Chief Riseling
Schubring an opportunity to respond to Hummel's report (Tr. at 1262)
It is true, as pointed out by Complainants, that the "negative information" Chief
provided to Hummel for his evaluation of Schubring pertained mostly to his activities as a
Steward. (Tr. at 917) However, even Schubring admits that this was the area where most
problems occurred. (Tr. at 53; Complainant Exhibit No. 39, p. 5) Based
on same, the Examiner cannot find fault with the fact Chief Riseling provided Hummel
information upon which to base his evaluation. Nor is this persuasive evidence of Chief
hostility and animus towards Schubring.
Finally, the Examiner rejects Complainants' allegation that because Chief Riseling
Hummel's recommendation that Schubring would benefit from treatment and education
anger control and instead declared that because Schubring had no psychological disability
no "mitigating circumstances" and terminated his employment that this is evidence of her
Examiner understands that Complainants disagree with her decision to terminate Schubring.
However, in and by itself, this is not evidence of Chief Riseling's hostility and motivation.
The Examiner next turns his attention to Complainants' allegation that the reasons
by Chief Riseling for terminating Schubring's employment greatly exaggerate Schubring's
and were not sufficient to terminate his employment. In this regard, the Examiner first
Complainants' contention that Chief Riseling's claim that Schubring's removal of two
from the Union office is a sufficient basis for terminating him simply reflects her desire to
get rid of
Complainants initially argue that Chief Riseling turned a minor incident created
by others into
a matter of "serious" proportions for which Schubring was responsible. (Emphasis in
Complainants take issue with Chief Riseling's statements in the termination letter that
"violated" the "public trust" by his "willingness" to use "some degree of physical force on
First, the Examiner does not agree that this was a minor incident. It may have
a minor parking dispute. However, before it was over it had turned into a serious
the police were called. (Tr. at 106, 108-109, 387, 535 and 873) Schubring found it
contact the landlord to resolve the dispute (Tr. at 108); and Schubring called his own
inform them of the dispute and request the presence of a supervisor. (Tr. at 113) In
was inappropriate physical contact between Schubring and two employes of Gumby's Pizza.
109, 390-391, 832, 872 and 874-876)
Complainants maintain that this was a minor dispute which became a major dispute
due to the
actions of others. It is true that Gumby's employes James McGinnis and Charles Schmidt
"agitated and upset" as a result of this incident. It is also true that their conduct was
and probably disorderly." (Tr. at 106, 196-199, 214-216, 378, 388-390, 399 and 405)
is also true that Schubring was agitated and upset. (Tr. at 878 and 892) Schubring used
language toward his landlord. (Tr. at 892-893 and 899) He yelled and got into a shouting
with Gumby's employes. (Tr. at 388-390) It is undisputed that Schubring initiated physical
with one or more of Gumby's employes.
(Tr. at 108-109) As pointed out by one neutral observer, there was a shouting match
parties (Tr. at 390 and 393), in which Schubring got involved (Tr. at 391), which was
resolved by both parties. (Tr. at 393) Based on the foregoing, and the record as a whole,
Examiner is of the opinion that both parties, including Schubring, were responsible for the
at the new Union office. The conduct of the Gumby's employes can be excused or not
the case may be. However, the Examiner is of the opinion that one has higher expectations
conduct of a police officer such as Schubring, whether on or off duty.
Complainants also argue that Schubring was not responsible for the incident. It is
he did not start it. However, it is also true Schubring did not de-escalate the situation but
an active participant in what started out as a minor parking dispute that escalated into a
call. (Tr. at 387) Complainants add that the physical contact Schubring had with McGinnis
Schmidt was nominal and arose when they repeatedly refused requests to leave the office.
the record indicates that said physical contact was something more than minimal (Tr. at 832,
872 and 876), and that Schubring may have avoided charges relating to same because the two
Gumby's employes decided not to pursue charges. (Tr. at 841-842 and 877) The Examiner
with Complainants' contention that the Madison Police took no action on the matter, in part,
the matter was relatively "insignificant." However, the Examiner finds that there was no
need to take
any further action because the disturbance did not get completely out of hand, and because as
Complainants also point out the parties resolved the dispute without further intervention.
(Tr. at 393)
Based on all of the above, the Examiner finds that there is ample persuasive evidence
support Chief Riseling's contention that Schubring "violated" the "public trust" by his
to use "some degree of physical force" as set out in her letter of termination to Schubring.
assuming arguendo that there is not sufficient evidence in support of same,
still must fail because there is no persuasive evidence that Chief Riseling acted for any other
other than her understanding of the facts of the incident and its impact on Schubring's ability
perform his duties as a police officer.
Complainants also argue that it was inappropriate for Chief Riseling to resolve
evidence whether Schubring had given notice that he was going to be on Union business on
December 15 against him. For the following reasons, the Examiner also rejects this
As pointed out by Complainants, one of the reasons asserted by Chief Riseling for the
termination of Schubring's employment was that Schubring was "engaged in business
your patrol duties" at the time of the incident and that the business was more than
incidental to his "patrol activities." (Complainants' Exhibit No. 17) Chief Riseling
that Schubring's assertion that he was engaged in Union activities was false and that
submitted false documents to support his claim.
Complainants argue that the investigation of Schubring's conduct on December 15,
produced "significant" evidence supporting Schubring's contention that he had given notice
be off duty for about two hours to participate in the moving of the Union office. However,
opinion of the Examiner better evidence exists in the record to support a finding that
not officially on Union business on the date in question and that he was on duty ostensibly
in patrol duty but instead engaged in Union business unrelated to his patrol duties.
The Examiner reaches the above conclusions for the following reasons. It is true that
is conflicting evidence and testimony regarding whether or not Schubring was on duty at the
the incident. In this regard, the Examiner notes that Complainants presented evidence and
regarding the Union's discussion of its move; (Tr. at 92-93 and 397-398, Complainants'
13); Schubring's statements that he completed a notification of absence form that he would
be off for
Union business from 12:00 to 2:00 on December 15, 1995, and that he gave it to Sergeant
sometime in November (Tr. at 93-94); and Steve Sasso's corroborating testimony. (Tr. at
435 and 478-479) However, as pointed out by Respondent in its brief, there are a number of
problems with Sasso's testimony which indicate that Sasso was mistaken when he testified in
of Schubring's version of the events in dispute. (Respondent Brief, pp. 9-11) In any event,
Examiner believes that there is better evidence in support of Chief Riseling's charge that
did not submit a notification of absence form, that he was on duty on the date in question,
Schubring or someone else wrote "UB" on the schedule on December 15, 1995, after the
Gumby's. In this regard, the Examiner credits the testimony of number two in command,
Debra Hettrick, who testified that on December 15, 1995, she returned to the office about
and a few minutes later looked at the schedule to see if it contained references to Union
Schubring and that it did not. (Tr. at 1156-1157) Hettrick further testified that she went to
a copy of the schedule about a half hour later and that the "UB" entry was on the schedule.
1161) The Examiner also credits the testimony of Sergeant Burke, Complainants' testimony
Burke was forgetful notwithstanding (Tr. at 428-429), who stated that Schubring had not
notice he would be off for Union business. In this regard, the Examiner points out that
testified that he was not given a notice that Schubring would be off; and that the last time he
at the schedule on December 12, 1995, there was no entry on the 15th for
Union business from
Schubring. (Tr. at 820, 822-823, 828 and 868) Finally, Harlan Hettrick, the officer in
charge on the
15th, testified persuasively that a UB for Schubring was not on the schedule
at the start of the shift
on that date. (Tr. at 1028-1031) Hettrick added that at the squad meeting in the beginning
shift when assignments were made Schubring did not indicate that he would be off helping
move or on Union business. (Tr. at 1032 and 1037) This despite the fact that
Schubring or anyone
else normally would inform him at the start of the shift that they would have to be off on
other business that day. (Tr. at 1037)
There is other persuasive evidence that Schubring was on duty, without permission to
on Union business, during the time in question. James Foley, Police Communications
testified persuasively that he understood Schubring was on duty and hadn't been told anything
differently. (Tr. at 766) Foley also overheard Schubring tell Lieutenant Johnson that he was
borrowing the dolly for the Union to use in the move but that he would not be helping. (Tr.
Lieutenant Johnson confirmed the foregoing comments. (Tr. at 1135) Roger Feucht, Police
Communications Operator Trainee, also testified that Schubring stated that he was going to
the dolly for use in moving the Union office but that he wouldn't be helping with the move.
(Respondent Exhibit 23, Part I, Tab T) Feucht was not aware that Schubring was off duty at
time material herein on the date in question. (Respondent Exhibit 23, Part I, Tab T) To the
Feucht understood Schubring to be on duty during the time in question. (Respondent Exhibit
I, Tab A-1, p. 5)
In addition, Schubring did not go "off duty" on his MDC but rather remained on
(Respondent Exhibit No. 23, Part I, Tab A-2) Schubring talked with Officer Sasso and
Officer Voight on the radio during the noon to 2:00 p.m. time period. (Respondent Exhibit
Part I, Tab A-1, p. 4) He checked in with dispatch and other employes just as he would if
on patrol and not "off duty" in the normal course of events.
Finally, the Examiner finds that it was appropriate for Chief Riseling to resolve
evidence as to what took place on December 15, 1995, against Schubring based on his past
including the ""break-in and cheating incident" wherein Chief Riseling assessed Schubring
with a ten-day suspension without pay which was later upheld in arbitration. (Respondent
Exhibit No. 1)
Based on all of the foregoing, and the record as a whole, the Examiner finds that
Riseling had sufficient basis to resolve conflicting evidence as to what took place on
against Schubring and to terminate Schubring for his actions relating to the incident of
1995, 2/ and that there is no persuasive basis in the record to find that Chief Riseling took
as a result of her hostility toward Schubring for his protected activities.
2/ As pointed out by Respondent in its brief,
the issue of whether there is or is not just cause for Schubring's
termination is not a matter that is before the Examiner; that is a matter properly addressed in
Therefore, the Examiner makes no determination regarding same in reaching the aforesaid
Complainants next argue that a comparison of the alleged conduct for which
disciplined with the conduct of other officers and the discipline those officers received
that the decision to discharge Schubring was motivated in significant part by his Union
particular, Complainants cite the discipline given to Van Natta, Hooker, Tyler and Feucht
to the discipline handed out to Schubring as evidence of "how labor activity affected Chief
disposition, attitude, and discipline." These examples of unequal treatment cited by
however, can be distinguished from the instant case.
The main difference is that none of the other employes relied upon by Complainants
of their position have the same poor work record of Schubring, particularly as it relates to
discipline, lack of honesty, poor judgment and loss of control. (Respondent Exhibit Nos. 1
Complainants' Exhibit Nos. 17, 38 and 39; Tr. at 711, 715, 730, 963, 1200-1203, 1206 and
As pointed out by Chief Riseling in her termination letter to Schubring: "You have been
before about poor judgement (sic) and your loss of control." (Complainants' Exhibit No. 17)
Riseling added: "There were no mitigating circumstances revealed during the investigation
incident that can excuse your loss of control and your subsequent dishonesty."
Exhibit No. 17) No other employe cited by Complainants above had a similar poor past
like Schubring which was factored into their discipline.
There are other substantive differences between Schubring and the other employes
Complainants above, particularly as they relate to the specific incidents involved. For
although there are similarities between the Van Natta incident and Schubring's incident, as
Complainants, including the fact both employes used force, swear words and a formal
made regarding the officers' conduct (or could have been made) there are also many
In this regard, the Examiner points out that Van Natta was on his day off while
working. (Tr. at 1285) Van Natta was in casual, plain clothes while Schubring was in
at 1285) Van Natta did not have a gun while Schubring had his gun. (Tr. at 1285) Van
not have a radio; Schubring had a radio. (Tr. at 1286) Van Natta did not have pepper
Schubring had pepper spray. (Tr. at 1286) Van Natta did not have in his possession at the
the incident a badge while Schubring had in his possession, although he was not wearing it at
time, a police badge. Van Natta had been in a bar and drinking alcohol; Schubring was in a
office and not consuming alcohol. (Tr. at 1286) Schubring identified himself as a police
Natta only stated that he was a police officer in order to set the record straight after the
accused him of being an undercover agent for the Drug Enforcement Administration. (Tr. at
Van Natta did not have a police car with him while Schubring did. Van Natta attempted to
de-escalate the situation while Schubring did not attempt to de-escalate the incident. (Tr. at
never attempted to arrest anyone while Schubring threatened police action. (Tr. at 873
Based on the foregoing, the Examiner finds significant differences in how Van Natta and
handled their respective incidents which would account for any differences in management's
Complainants' arguments notwithstanding.
A comparison of the discipline given to Security Officer James Hooker by Chief
February, 1994, with the discipline given to Schubring also does not demonstrate anti-Union
motivation. The Examiner reaches this conclusion for the following reasons. One, the facts
incidents are very different. Schubring's misconduct included physically assaulting two
Gumby's. Hooker, on the other hand, tailgated a car, activated the squad's emergency
then proceeded down the highway without stopping after causing a car to pull over onto the
of a highway. (Complainants' Exhibit No. 56) Two, Hooker was found to be mentally ill,
impatient treatment, while Schubring had no such disorder. (Tr. at 1309-1311;
No. 17) Hooker was an unarmed, non-sworn Security Officer, while Schubring was an
sworn, trained Police Officer. (Tr. at 22; Complainants' Exhibit No. 57) Finally, when
Hooker actually admitted some of the important details of the incident in question while
continues to deny that anything improper happened. (Complainants' Exhibit Nos. 53-57)
The facts of Security Officer Tyler's discipline are also different from Schubring's.
first discipline of his career resulted in a ten-day suspension without pay. (Complainants'
48) This is the same penalty Schubring received for the second discipline of his career for
and entering the Personnel Offices. (Tr. at 128) (Schubring received a two-day suspension
first discipline for violating a work rule. (Tr. at 128) Schubring's third discipline of his
occurred in 1992 and was originally a 15-day suspension with pay that Chief Riseling
reduced to five
days based on Schubring's plea for leniency based on the hardship it would cause his family.
1203) Tyler's second discipline resulted in his termination of employment. (Due to his
health condition, Chief Riseling allowed him to resign to keep his retirement health care
at 1303-1306) Here, Chief Riseling changed her decision and assisted Tyler as she had done
Schubring in 1992. Schubring's fourth discipline of his career resulted in the termination of
employment. In addition, the circumstances of that incident differed greatly from the facts
complained of in Tyler's case. (Complainants' Exhibit No. 48) In particular, the Examiner
Tyler intentionally destroyed public property while Schubring assaulted two individuals.
Finally, Schubring's conduct differed significantly from Police Communications
Feucht. Feucht failed to fill out his application completely for a dispatching job.
Exhibit No. 25) Ordinarily, the "omissions and misrepresentation" on Feucht's part would
his "application being rejected." (Complainants' Exhibit No. 25) However, a review of his
performance with the Department indicated that he was a
"good to excellent" and "valued" employe. (Complainants' Exhibit No. 25)
Therefore, he was issued
a letter of reprimand but not eliminated from the pool of candidates (which is the normal
(Complainants' Exhibit No. 25)
The Examiner finds that Schubring's conduct is much more egregious and
that for which Feucht was disciplined. He committed an assault and battered a citizen. He
discourteous and unprofessional in his actions. But more importantly, he was not truthful
investigation and at all times material herein.
Based on all of the foregoing, and the record as a whole, the Examiner finds that the
to discharge Schubring and to give less severe forms of discipline to the aforesaid employes
based on the differences in their employment records, as well as the conduct for which the
were disciplined. The Examiner can find no persuasive evidence in the record to support a
that labor activity affected Chief Riseling's disposition, attitude and discipline in the aforesaid
Finally, Complainants argue that there is other dramatic evidence that the termination
Schubring's employment was motivated in significant part because of his labor activity. In
thereof, Complainants cite the change in Sergeant Burke's relationship with Officer Steve
Schubring was placed on administrative leave. (Tr. at 484) Burke stopped taking breaks
and began avoiding Sasso except when they had to deal with each other professionally. (Tr.
Complainants argue that "the simple truth is that Burke knew that Schubring's employment
terminated because of his labor activity." Complainants add that there can be no other
because if "Schubring's labor activity was not a factor and there was good cause to terminate
Schubring's employment, Burke would have no trouble facing Sasso." The problem with
approach is that Complainants offered no persuasive evidence in support of this claim. In
the Examiner can think of at least one other rational explanation for Burke's behavior. In
the Examiner notes that Burke was familiar with Schubring's poor past work record
Exhibit No. 38), as well as the events of December 15, 1995. He could have felt that cause
for terminating Schubring's employment based on his conduct during the incident of
1995, and chose to avoid the subject with Sasso who he knew felt differently. (Tr. at 484)
The Examiner likewise rejects Complainants' contention that Chief Riseling and other
management decided not to attend the retirement party for Shorewood Police Chief Terry
because they could not face their peers knowing they knew management was after Schubring
of his labor activity. Again the problem with this approach is that it is pure conjecture.
offered no persuasive evidence in support of same. To the contrary, Chief Riseling, Captain
Hettrick and other members of the management team offered reasonable explanations for
to attend the party given the circumstances. For example, Captain Hettrick stated that she
would be awkward because Schubring was
on administrative leave but worked for Terry and "that there was a good chance that
create a scene. And I didn't want to ruin it for Terry." (Tr. at 1177) Chief Riseling added
because her management team was not going to avoid an incident maybe she ought not to go
(Tr. at 1284)
Based on all of the above, and the record as a whole, the Examiner rejects
argument that there is other "dramatic" evidence that the termination of Schubring was
part because of his labor activity.
As noted above, based on all of the foregoing discussion and record evidence, there
persuasive evidence that Chief Riseling or her management team bore any hostility toward
because of his protected activity. However, assuming arguendo that there was
Schubring's protected activities, Respondent's conduct would have to be motivated by said
Motive is difficult to determine as usually there is no direct evidence so it must be
the total circumstances. The Examiner could find no persuasive evidence of such motive in
specific Respondent conduct complained of by Complainants and discussed above.
introduced other evidence and testimony of Respondent's negative behavior/attitude toward
Union to support their allegation that Chief Riseling and her representatives terminated
because of his protected activity. However, in the opinion of the Examiner, this evidence
support a finding regarding same. Instead, it simply indicates to the Examiner that both
and labor at the UW Department of Police and Security dealt with each other in a traditional,
hard-nosed, often not very friendly or constructive manner. For example, Steve Sasso
testified that he
stopped being a steward because he had seen what happened to other stewards with discipline
didn't want to jeopardize his job and the new house that he had just build. (Tr. at 418)
Sasso also admitted that he stopped being a steward because of the time commitment and
some officers thought he was not effective in dealing with management. (Tr. at 418) Sasso
admitted that for a while management and labor were involved in an adversarial relationship
things had improved. (Tr. at 455)
Schubring also testified that there was an "antagonistic atmosphere" between
and the Union while Riseling was the Chief. (Tr. at 35) He stated: "Everytime (sic) a
filed it was like management was upset because we were criticizing them." (Tr. at 35)
added that he wanted it to be a problem-solving relationship but it didn't go that way. (Tr.
Yet, even Schubring admitted that there were times Chief Riseling showed flexibility toward
grievance processing and resolution. (Tr. at 132) Chief Riseling added, unrebutted by
that there were other times that she showed leniency in disciplining Schubring. (Tr. at
Chief Riseling also exhibited flexibility in resolving grievances and reducing discipline for
employes. (Tr. at 1214-1215 and 1303-1306) In fact Chief Riseling and the Union worked
to obtain wage increases for police officers. (Tr. at 1224-1225) Schubring wrote a letter
Chief Riseling for her effort as follows:
I believe it is about time that I provide you with an
THANK YOU for the hard
work and effort that you put into the process of getting the pay increase for law enforcement.
be aware the attending members from law enforcement acknowledged at our Union
meeting with DER that yourself and various other administrators were the guiding force
survey. It would be remiss for the Union to take credit for this raise in pay for officers,
administrators started the process. Certainly you played an important part in getting it done!
Therefore, from the represented and
affected employees and myself, I thank you for a job well
done. I look forward to working towards cooperative efforts in the future.
Schubring admitted that Chief Riseling's actions noted above
boost employe morale. (Tr. at 162-164)
Schubring complains that he participated in grievance meetings conducted by
which were threatening or intimidating to him. (Tr. at 70) However, various management
representatives were threatened, intimidated, or treated improperly by Schubring including
Brian Bridges (Complainants' Exhibit No. 38), Sergeant Dale G. Burke (Complainants'
38, Respondent Exhibit No. 28, Tr. at 792-794), Security Supervisor James Williams (Tr. at
648-653), and Security Supervisory James Kaszubski (Tr. at 663-665 and 682-685).
In addition, Schubring complains that management did not like his "antagonistic"
labor relations. (Tr. at 54) Schubring states that management said "his tone was getting
boisterous, more loud in meetings and stuff." (Tr. at 54) However, this is not something
Management had expressed previous concerns over Schubring's temper and behavior. (Tr. at
270-271) In addition, both parties had engaged in behavior which could be described as
and physical while conducting labor relations business. (Tr. at 283-283 and 298-299) If
raised their voices, Schubring responded accordingly. (Tr. at 294)
Finally, Schubring complains about poor morale and management's style. (Tr. at 44)
example, he states that he was advised that filing of grievances was not always a positive
create the right atmosphere to resolve problems on a mutual basis. (Tr. at 36) However,
there is no
persuasive evidence in the record to support this claim. It is true that when the parties did
of litigating they were able to resolve problems. (Tr. at 455-458, 1200-1203, 1217,
1305) It is also true that the Union on occasion could have contributed to the poor employe
(Tr. at 303-305)
In their reply brief, Complainants make a number of other arguments in support of
position that Respondent terminated Schubring because of the exercise of his protected
For example, Complainants argue that Chief Riseling ordered Schubring to submit to a
evaluation contrary to standard procedure as noted above in order to provoke him and to
to refuse to submit to the exam, thus giving her a reason to terminate his employment. The
with this argument is that there is absolutely no evidence in the record to support this claim.
Complainants also argue that Schubring was treated differently when he was involved in an
involving the use of force in 1992 because he was not an officer or representative of the
Union at that
time. While it is true that Schubring was not a Union representative at the time of his
early 1992 for unnecessary force toward a citizen (Tr. at 132-133), it is also true that he did
the extensive record of angry outbursts and other problems concerning loss of control at the
that incident compared to December, 1995. Therefore, the Examiner finds the circumstances
different and rejects this argument of Complainants as well. Complainants further argue that
Riseling's response upon learning that Schubring was involved in an incident at the new
demonstrates her hostility toward Schubring and is "a classic illustration of getting your
order so you can accomplish the results you want." This might be true if Complainants had
that Chief Riseling terminated Schubring because of his protected activity. However, as
Complainants did not offer persuasive evidence of same. To the contrary, the record
Chief Riseling was simply following good labor relations practice in responding to the
incident in a
professional manner. (Tr. at 1319-1326 and 1329-1335) Finally, Complainants argue that it
improper for Respondent to rely in its brief on Schubring's prior discipline to support its
terminate him. However, Schubring's prior record was a part of the investigation process
to his termination. (Tr. at 1321 and 1331) In addition, it was referenced in Chief Riseling's
of termination to Schubring. (Complainants' Exhibit No. 17, p. 4 ("you have been warned
about poor judgement (sic) and your loss of control." "There were no mitigating
revealed during the investigation of this incident that can excuse your loss of control and
subsequent dishonesty.") Therefore, the Examiner likewise rejects this argument of
Based on the above, and all of the foregoing, as well as the totality of the
Examiner finds that the evidence simply fails to show that Respondent's actions were
hostility. Thus, the allegation of Sec. 111.84(1)(c), Stats., violations has been dismissed.
Complainants have alleged a violation of Sec. 111.84(1)(a), Stats. Inasmuch as there
Sec. 111.84(1)(c), Stats., violation, there is no derivative Sec. 111.84(1)(a), Stats., violation.
Section 111.84(1)(a) Interference
As far as an independent violation of Sec. 111.84(1)(a), Stats., the Examiner will
standard set forth in PP(S)-247 above. Based on same, and all of the foregoing, the
no conduct by Respondent that would have a reasonable tendency to interfere with employe
of Sec. 111.82 rights. However, assuming arguendo that there is such conduct,
the Examiner finds
that Complainants' case still must fail. As noted above, the same test for whether
applies under MERA and SELRA. Under MERA, employer conduct which may well have a
reasonable tendency to interfere with employe exercise of Sec. 111.70(2) rights will not be
violative of Sec. 111.70(3)(a)1, Stats., if the employer had valid business reasons for its
Blackhawk Technical College, Dec. No. 28846-A (Crowley, 5/97) aff'd Dec. No. 28846-D
(WERC, 12/97). Here, as discussed above, the Respondent had sufficient basis for taking
it did toward Schubring and did not do so as a result of his protected activity. Nor does the
support a finding that Respondent took any action against any other employee as a result of
anti-union animus. In addition, the Examiner points out that there were sound public policy
Respondent to take the action that it did against Schubring. 3/ Therefore, the Examiner finds
evidence failed to prove any violation of Sec. 111.84(1)(a), Stats., and consequently, that
also been dismissed.
3/ Chief Riseling
explained these public policy concerns clearly at pages 1266-1267 of the
Q Okay. Now, you have been here. You've reviewed the statements by Mr.
Schmidt, Mr. McGinnis and
Bonnie Brink, for example, and you've heard them testify. Why cannot behavior like this be
tolerated by law
A I received the statement of Mr. McGinnis and Mr.
Schmidt. Ms. Brink didn't make a statement. There
was an interview. I did hear her testify here. I heard McGinnis and I heard Schmidt testify
also in addition to
reading their statements.
The fundamental principles of policing is kind of
a coined-and-canned phrase to protect and to
serve. We're the arm of the government that can take away people's freedom, liberty, and
can confine them and
bring them before a court of law.
We're also the only ones empowered in the
civilian way to use, when necessary, deadly, physical
force. We are entrusted from time to time to use enough force to actually kill another
human being. That is a
critical part of policing, and that's what sets us apart from all the other
imperative that when under stress and when in situations that are accelerating that
we remain calm, remain focused as much as possible, and try to de-escalate and to reduce
the tensions and the
stress in those situations.
In my opinion, Mr. Schubring did not do that. In
these situations he escalated the level of the
confrontation. He did not de-escalate. He did not tactically disengage. And that is not only
inappropriate, but that
Section 111.84(1)(b), Stats.
With respect to Sec. 111.84(1)(b), Stats., as pointed out by Respondent in its brief at
6, Complainants have failed to submit any proof or make any persuasive arguments that
conduct threatened the Union's independence or reduced the Union to a mere tool of the
Therefore, the Examiner dismisses this claim of Complainants as well.
Dated at Madison, Wisconsin, this 14th day of December, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Dennis P. McGilligan, Examiner