EXCLUSIVE: Analysis suggests UW Health not barred from collective bargaining

Union lawyers, Madison officials call on health system to negotiate with nurses’ union

By: - September 2, 2021 6:00 am

Flanked by UW Health nurses who support unionizing, Sen. Melissa Agard announces legislation to authorize collective bargaining at the hospital system in May. A new legal memo from the union’s lawyers argues that nothing in state law would prevent collective bargaining at UW Health now. (Erik Gunn | Wisconsin Examiner)

Madison city officials are rallying behind UW Health nurses who are seeking union representation.

As they do so, a new legal analysis for the union argues that — contrary to past assumptions about Act 10, Wisconsin’s 2011 collective bargaining law — nothing in either that law or other state laws would bar the health care system from returning immediately to a full collective bargaining relationship with employees.

On Thursday morning, Madison alders will display their support for the nurses’ union drive in front of the City County Building off Madison’s Capitol Square.

The event was organized to highlight the introduction earlier this week of a Madison common council resolution supporting union rights and bargaining for nurses who work for the UW Hospital and Clinics and calling for a “fair and fast union election” there. The resolution, which was introduced Tuesday evening, is expected to return to the council for a vote Sept. 21.

“UW is an important part of the city of Madison, and UW Health in particular is a larger employer,” said Ald. Patrick Heck, who is a co-lead sponsor with Ald. Lindsay Lemmer. “I think that it’s important for the city council and the mayor to take a stand on issues that impact our residents, particularly when it’s related to employment.”

Many of the estimated 2,500 nurses employed by UW Health probably live in Madison, Heck said in an interview Wednesday.

The resolution states that the UW Health nurses “have been on the front lines, risking their lives and their families’ lives to provide quality, compassionate patient care” during the COVID-19 pandemic. It states that the pandemic “has intensified deep-seated, systemic problems in the UW Health system which have been worsening for years, ever since the administration stopped recognizing the nurses’ union.”

In addition to Heck and Lemmer, Madison Mayor Satya Rhodes-Conway, the common council’s president and vice president, and three other alders have also signed on as co-sponsors.

Memo resets union campaign

The resolution also states that “the foremost labor attorneys in the state have thoroughly reviewed the current law, including Act 10, and concluded that UW Health can voluntarily recognize nurses as a union and start negotiating a new contract immediately.”

Asked about the Madison council resolution and its assertion that nothing stands in the way of voluntarily recognizing and bargaining with the nurses and the union, UW Health spokeswoman Emily Kumlien responded with a written statement:

“UW Health leaders and staff nurses work together directly and collaboratively to meet the needs of our patients while following all state and federal laws related to our workforce,” Kumlien said. “Our robust system of nursing shared governance is part of what makes UW Health a great place to work and a place our patients receive truly remarkable care.”

The common council resolution’s mention of a review by labor lawyers refers to a private memo that has been circulating among activists and allies of the union campaign over the last two months. A copy of the memo was obtained by the Wisconsin Examiner, which confirmed its authenticity.

The July 1 memo was authored by attorneys Lester Pines and Tamara Packard, of the Madison law firm Pines Bach. The law firm has represented the Service Employees International Union (SEIU), which is working with the UW Health nurses who are seeking union representation.

The memo provides a new look at Act 10, the law that pared down to a minimum the collective bargaining rights for state and local public employees with the exception of firefighters and police officers. In support of some of its conclusions, the memo also cites a 2012 article in the Marquette Law Review.

The Pines-Packard memo walks through the history of the UW Hospital and Clinics Authority — the corporate entity that has operated the health system since 1996 — followed by the changes in 2011 that Act 10 made to several different statutes. 

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

The UW Hospital and Clinics had long-established union relationships with employees when the health care system was split off from the University of Wisconsin. The 1996 legislation that established the UW Hospital and Clinics Authority also explicitly established union rights for employees, the Pines-Packard memo points out.

No longer state employees

At the time, according to the memo, the health system’s employees were changed from state employees to employees of the Hospital and Clinics Authority. The 1996 legislation applied the Wisconsin “Employment Peace Act” — a state law that, like federal labor law, established the right of employees to unionize and bargain collectively — to the new entity. Language in another statute further underscored the hospital system’s duty to bargain with a certified representative for the employees.

Act 10 repealed the law that required the hospital system to bargain. It also removed state, local and UW hospital system employees from the Peace Act’s protection.

“However, Act 10 did not affirmatively prohibit UWHCA [the UW Hospital and Clinics Authority] from engaging in collective bargaining with its employees,” the memo declares.

The State Employment Labor Relations Act — even after it was rewritten by Act 10 — doesn’t apply to the Hospital and Clinics Authority, the Pines-Packard memo argues, because the health system’s employees were no longer state employees after 1996. The state employee law, the memo adds, contains no language that applies to the health system employees.

At the same time, the state law that governs the UW Hospital and Clinics Authority also contains no language to prevent it “from voluntarily recognizing a representative of its employees and bargaining with that representative,” the memo continues.

“Wisconsin law contains no statutory or other provisions penalizing or criminalizing an employer or its management which bargains with employees or their representatives,” the memo declares. If an employer bargains with employees who don’t have guaranteed bargaining rights, the resulting agreement would not be enforceable by law, “but there would be no penalty or harm to the employer for entering into and complying with such an agreement.”

Boosting the union

While the memo was the product of a firm employed by the union, its emphatic and confident tone has buoyed the two-year-old union organizing campaign.

The nurses and the union first went public in December 2019, presenting signed union cards from what they said was a large majority of the UW Health nurses seeking representation. At the time, even they had assumed that they would only be able to pursue a voluntary “meet and confer” relationship with the health system’s management.

UW Health officials argued then that state law would prevent them from engaging in that sort of informal relationship, much less recognizing or negotiating with the union, although outside labor lawyers disputed that stance.

When Sen. Melissa Agard (D-Madison) introduced legislation earlier this year to explicitly authorize collective bargaining at the health system, her office obtained a memo from the non-partisan Legislative Council that also concluded a “meet and confer” relationship was already legal. That memo, however, like previous interpretations of the effect of Act 10 on UW Health, asserted that the hospital system’s management “may not formally recognize a union” and “does not have the authority” to do so.

The memo from SEIU’s lawyers doesn’t directly refer to the Legislative Council document, but the conclusions it draws flatly contradict that analysis. It does not matter whether the deal is an informal, voluntary one or a full-fledged, binding collective bargaining agreement, Pines and Packard conclude: “There is no such prohibition.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Erik Gunn
Erik Gunn

Senior Reporter Erik Gunn reports and writes on work and the economy, along with related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.

MORE FROM AUTHOR