Pro-union nurses from UW Health await the start of a news conference Monday in the Governor’s Conference Room in the state Capitol. (Erik Gunn | Wisconsin Examiner)
UW Health, nurses and the union seeking to represent them have agreed to a legal process to establish whether the hospital system can recognize and bargain with a union. Hospital and union representatives along with Gov. Tony Evers announced the deal Monday — averting a threatened three-day walkout by nurses that was to begin Tuesday morning.
At the same time, UW Health has agreed to more directly engage with nurses who have joined the union through its existing system for getting employee input on issues relating to patient care and other topics, according to CEO Alan Kaplan and a nurses union representative, Colin Gillis.
Evers, Gillis and Kaplan announced the agreement at a noon press conference in the state Capitol following five days of mediation including two days of talks at the executive residence hosted by the governor.
“My message was quite clear — that the people of Wisconsin expect everybody to work together for the best of everyone,” Evers said. “But it was just important to bring people together, and to have them communicate directly with each other. And it worked well. Both sides did a great job.”
The threatened strike was aimed at pressuring the UW Hospital and Clinics Authority (UWHCA) — the corporate entity that operates the hospital system — to recognize the nurses’ union and to bargain with them in the face of what had been until Monday the administration’s adamant refusal. Nurses seeking to restore union representation at UW Health have affiliated with SEIU Healthcare Wisconsin, part of the Service Employees International Union (SEIU).
The new agreement doesn’t automatically guarantee that the union will be recognized but instead offers “a path to resolve the question” whether state law would allow it, said Kaplan.
And in the meantime, the agreement gives the nurses, through the union, a stronger voice in the existing UW Health “shared governance” program, according to Gillis. “We already are resetting our relationship with UW Health from one of dispute to one of a productive conversation,” he said.
Monday’s announcement followed nearly a week of mediation by the Wisconsin Employment Relations Commission (WERC).
Typically, the commission is notified by unions or employers in contract negotiations. In this case, WERC reached out first to all the parties involved, UW Health, the nurses and SEIU Healthcare Wisconsin, offering its services, “given the public interest and the consequences” in the event of a strike, said Peter Davis, the WERC staff attorney who conducted the mediation sessions.
Mediation began last Wednesday, and both Gillis and Kaplan credited Evers with helping to keep the talks going by his participation.
Evers said that on Friday, he invited the negotiators to continue their talks at the executive residence into that evening. Another meeting followed Saturday and talks concluded Sunday with an agreement. Once the final terms of the deal were hammered out, the nurses held two Zoom meetings to vote on it Sunday evening.
Kaplan acknowledged in an interview that UW Health has been hearing from people. “We have a passionate public,” he said. “And so we’ve heard from people from all sorts of perspectives.” Those included patients wanting to know, “Are you going to take care of me?” he added. “And some people are focused on the union, some people are just focused on caring for our nurses. So the focus has been all over.”
Other unions lined up to support the nurses planning to walk out. The South Central Federation of Labor held a rally on Labor Day for them.
On Friday, the Building Trades Council of South Central Wisconsin sent a letter to UW Health warning that union construction workers on UW Health projects were prepared to honor nurses’ picket lines this week, said Jac Weitzel, the council’s executive director. “I think that our letter and everything that we were planning on doing [to support the nurses] — it really made a huge impact,” she said.
Kaplan said the possibility of construction work being shut down “was not our focus — our focus was taking care of our patients and making sure that they had access to our facility.”
Act 10 applicability
Since nurses first went public three years ago with their demand for union representation, the ability of the UW hospital system to engage with unions has been a central point of dispute.
Act 10, the 2011 law that sharply limited public employee union rights, also eliminated a guarantee of union rights for UW Hospital and Clinics Authority employees. When the employees’ last union contracts expired in 2014, the hospital system refused to negotiate new ones, citing Act 10.
In the years that followed, UW Health nurses say, they saw their working conditions deteriorate, including in areas such as staffing. That raised their concerns over safety for patients as well as employees, they said, leading them to launch the union drive.
After nurses began campaigning to restore their union in 2019, UW Health continued to take the position that Act 10 prevents the system from recognizing or bargaining with unions.
But a series of analyses over the last year and a half has disputed that conclusion. The most recent was a legal opinion Attorney General Josh Kaul issued in June stating that nothing in state law barred the hospital system from collective bargaining.
Kaul’s legal opinion also suggested that the Wisconsin law known as the Peace Act, which gives private sector employees the right to union representation and requires employers to bargain with them, could apply to UW Health. But the attorney general stopped short of making a conclusive statement on that point.
Under the agreement announced Monday, the union agreed to cancel the three-day strike that had been scheduled to start at 7 a.m. Tuesday, according to a summary of the deal that UW Health sent to news outlets on Monday.
The summary states that SEIU and UW Health have agreed to file a joint petition with the Wisconsin Employment Relations Commission (WERC) for a ruling “on whether the Peace Act applies to UWHCA.”
In addition to stopping this week’s strike, the union is also to “refrain from any further work stoppages until we have concluded the regulatory/legal process to review whether UW Health is covered by the Wisconsin Peace Act and can collectively bargain with a union,” the UW Health summary also states.
“The hospital system has maintained “for over a decade that the legal situation does not allow us to recognize a union,” Kaplan told reporters Monday. “I know others have different opinions. This agreement finally set forth a path to resolve that question once and for all.”
The agreement leaves open for either the union or UW Health to appeal WERC’s eventual decision in the courts, including directly to the Wisconsin Supreme Court.
Bringing union to the table
Until last week, UW Health had been unyielding in refusing to engage at all with the union.
Kaplan said that has “always been about the legal question — can we, or can we not?” But, he added, the mediation process and dialogue with the pro-union nurses made it apparent that for “all of us … what we really care about is patients — our patients.”
In return for canceling the strike and agreeing not to strike “until there is a definitive ruling on disputed legal issues,” the summary states, “UW Health agreed to engage with SEIU in a good faith ‘meet and discuss’ process while any court proceedings are pending. These are non-binding discussions to facilitate the open sharing of information.”
That was a marked shift from the administration’s past refusal to deal with the union in any form. It also came close to granting what the nurses and their union initially sought when they first showed up at a UWHCA board meeting demanding recognition in December 2019.
At the time, the prevailing assumption, which the new legal analyses have undermined, was that collective bargaining wasn’t possible. The nurses said then that they wanted to engage in an informal “meet and confer” process that would give them, through the union, greater input into hospital management decisions involving their work.
UW Health rejected that, declaring even that sort of process was forbidden because of Act 10. Outside observers familiar with the law disputed that assertion.
The subsequent reviews by lawyers for the union, for the nonpartisan Wisconsin Legislative Council and finally Kaul went further, concluding that Act 10’s restrictions on municipal and state employee collective bargaining did not include UWHCA.
Although the process is now being called “meet and discuss” rather than “meet and confer,” Gillis said in an interview, “that’s what we were talking about” when the drive started. “And now that’s our starting point,” with full collective bargaining rights as the end goal.
Gillis, a UW Health nurse for five years and a leader in the union drive, said the union can be an effective part of the hospital’s existing shared governance program of employee councils for seeking employee input.
“I’m a leader in shared governance, and I’ve always believed that shared governance and the union could work as complementary forces,” he said. “Shared governance structures are already in place — they’re already working. The union is going to add on to that ongoing discussion, and it’s going to be a different voice, but it’s going to be part of the same conversation.”
This story has been updated 9/12/2022, 8:50 p.m.
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