New legal memo: State law doesn’t ban bargaining at UW Health

Nonpartisan agency backs off earlier claim as nurses pursue union recognition

By: - December 16, 2021 6:44 am
Sen. Melissa Agard-UW Health nurses

Sen. Melissa Agard at a press conference in May in support of UW Health nurses who want union representation. A new Legislative Council memo that Agard requested says that nothing in state law directly forbids collective bargaining at UW Health. (Erik Gunn | Wisconsin Examiner)

Armed with a new legal opinion that states Wisconsin law does not explicitly block UW Health from bargaining with employee unions, nurses who work for the hospital system are stepping up their campaign to restore union representation.

Nurses active in the union campaign sent copies of the legal opinion, written by a lawyer for the nonpartisan Legislative Council, to members of the board of directors for the UW Hospital and Clinics Authority (UWHCA) this week. The board holds its monthly meeting on Thursday.

“State law is currently silent on union recognition for UWHCA, which could allow an argument in favor of voluntary, though not mandatory, recognition,” the memo states.

That conclusion is a sharp departure from an earlier Legislative Council memo that concluded that UW Health was forbidden from formally recognizing or bargaining with a union.

Despite contrasts between the two memos, a UW Health spokeswoman said in a statement Wednesday afternoon that the analysis “seems unchanged” and reiterated the health care system’s intent to ignore the union.

Senator seeks analysis

The new Legislative Council memo was written at the request of Sen. Melissa Agard (D-Madison), who has been outspoken in her support of the UW Health nurses seeking union representation since they began their campaign two years ago.

“My hope is that the clarity this memo provides helps [the UW Health board] understand that this can happen,” Agard said Wednesday in an interview. She called it “past time for them to recognize the nurses’ voices and their request for a union.”

Nurses seeking a union at the UW Hospital and Clinics system — which had unions until 2014, when the system’s administration said Act 10 would not allow them to negotiate new contracts — have said they’re seeking a strong voice in operations to address stress on the job, staffing levels, overcrowding and a range of other issues. While the organizing drive began before the COVID-19 pandemic, nurses have said the pandemic exposed dramatically the problems that had led them to seek union representation.

The UW Health administration has flatly opposed recognizing the nurses’ union. The hospital system has pointed to its “shared governance” array of councils and committees as a means for health care workers to collaborate to improve patient care. But nurses seeking a union have called the system inadequate and said it has failed to address their deepest concerns about their workplace, including the topic of patient safety.

The hospital system has also enlisted the aid of an outside consultant that specializes in combating union organizing drives.

“It’s disappointing to me,” Agard said of the hospital’s response to the union. “It’s past time that our nurses have a voice.” She said she supported the nurses’ union drive as a way “to bring their collective voices together” to address concerns about the quality, safety and care for nurses and patients alike.

Unions: Allowed at UW Health or not?

Agard said she sought the new memo because of lingering questions about what state law does and does not allow UW Health to do when it comes to engaging employees through unions.

The new memo was produced Oct. 4 by Margit Kelly, a senior staff attorney with the Legislative Council, which advises members of the Wisconsin Legislature.

It differs markedly from an earlier memo, which Agard’s office had requested in connection with a bill she introduced to restore full collective bargaining rights for UW Health employees.

Kelly also wrote the earlier memo, dated May 20. In it the Legislative Council lawyer stated that “UWHCA may not formally or voluntarily recognize a union for purposes of collective bargaining on wages, hours, and conditions of employment.” That memo said that was a consequence of Act 10, the 2011 law stripping most collective bargaining rights from public employees other than police officers and firefighters.

This summer, however, union lawyers circulated a memo in which they flatly asserted that state law does not forbid the hospital system from recognizing the union. Agard’s office provided the Legislative Council with a copy of that memo as additional background material for the Oct. 4 memo.

Instead of asserting unequivocally that collective bargaining at UW Health is forbidden, as her earlier memo stated, Kelly’s Oct. 4 memo states that because of Act 10, “Current law does not recognize a collective bargaining status for UWHCA employees,” and that the health care system has “no duty” and the employees no automatic “right” to collective bargaining.

“Act 10 simply deleted the obligation and duty for UWHCA to engage in collective bargaining with its employees, and did not replace the former duty with language prohibiting collective bargaining,” Kelly states in the memo.

She offers two potential interpretations for that revision in the state law.

“Under Wisconsin law, the elimination of a statutory provision often means that the subject of the law is thereafter prohibited,” she states in the memo. “On the other hand, silence in state law may also mean that the subject is not regulated, and that the subject at issue is permitted.”

In both the older Legislative Council memo and the newer memo, Kelly said that UW Health and employees represented by unions appear to be free to hold informal, non-binding discussions over wages, hours and working conditions — known as “meet and confer.”

The new memo expresses skepticism as to whether UW Health employees could invoke the National Labor Relations Act — the 1930s-era federal labor law that confers rights to unionization on private sector workers — but it notes some open questions on that point.

Union memo’s argument

While the new memo says there’s no explicit prohibition for UW Health to voluntarily recognize a union, it’s less certain in its analysis than the memo circulated this summer by Lester Pines and Tamara Packard of the Madison law firm Pines Bach. The firm represents SEIU Healthcare Wisconsin, the union that pro-union UW Health nurses have asked to represent them. .

In their memo, Pines and Packard wrote that “Act 10 did not affirmatively prohibit UWHCA  from engaging in collective bargaining with its employees.” They argued further that the UW Health employees are not considered state employees who are covered by Act 10’s limits on collective bargaining, and that no state law prevents UW Health from voluntarily recognizing a union and bargaining.

Despite the differences between the two Legislative Council memos, UW Health Press Secretary Emily Kumlien said in a statement Wednesday that the “analysis of the law in this memo seems unchanged from the prior version, and Mr. Pines’ conclusion does not appear to be supported by the October memo.”

Kumlien said advice the UW Hospital and Clinics Authority board has gotten from in-house counsel and outside attorneys on whether it would be legal for the health care system to bargain with employees through a union was “privileged communications.”

She referred to a statement the board issued in February 2020, in the first months of the union campaign, when the board declared that UW Health management would “continue to work directly with employees to understand their concerns and to work together towards solutions.”

That statement also described the board’s demand that management “develop and implement a plan in collaboration with nurses and all other clinical and non-clinical staff to have a strong voice in issues that impact them.”

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Erik Gunn
Erik Gunn

Deputy Editor Erik Gunn reports and writes on work and the economy, health policy and 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.