UW Health can bargain with unions, AG Kaul says in legal opinion

By: - June 3, 2022 6:30 am
Pro-union billboard truck

A truck-mounted billboard displays the message of nurses who want union recognition at UW Health at a rally in February 2022. (Erik Gunn | Wisconsin Examiner)

UW Health is free to voluntarily recognize and bargain with employee unions under Wisconsin Law, according to an opinion issued Thursday by Attorney General Josh Kaul.

The opinion also holds out the possibility that the UW Hospital and Clinics Authority (UWHCA), the corporate entity that governs the UW Health system, could be bound by state laws that ensure union rights for private sector employees in Wisconsin. But the opinion states it is “not conclusive” on that possibility.

The opinion is the newest salvo in the ongoing dispute over bargaining rights for UW Health nurses seeking union representation since 2019. In a statement, the nurses organizing committee applauded the opinion.

“This entire time, UW Health’s central objection was the false assertion that they were legally prevented from recognizing us,” the statement said. “UW Health Board members and the administration now face an urgent moral decision. Nurses are done waiting and we are determined to do whatever it takes to win our union. It is critical that UW Health recognizes our union now so we can advocate for our patients, our community, our families and ourselves and ensure safe, quality care for Wisconsin.”

The hospital system’s management has repeatedly rejected the possibility of union representation for UW Health nurses. In a statement Thursday, UW Health spokeswoman Emily Kumlien said: “While this opinion runs contrary to statements in the legislative history, Legislative Council opinions and our own internal and external counsel’s review, we respect the Attorney General’s opinion and will be discussing these conflicting legal opinions with our Public Authority Board at its next meeting.”

Union rights for employees of the UW Hospital and Clinics were written into state law when the UW Hospital and Clinics Authority was created in 1995, but that language was eliminated as part of Act 10, the 2011 law that stripped most public employees of most collective bargaining rights. When the hospital system’s existing union contracts subsequently expired, management insisted that UW Health could not continue to bargain with the unions because of Act 10.

After nurses organized with SEIU Healthcare Wisconsin in 2019 seeking to restore union representation, the hospital system’s management continued to cite Act 10 as forbidding any engagement with the union.

In the last year, however, legal opinions — first from lawyers for the union and later from the nonpartisan Legislative Council, which advises members of the Wisconsin Legislature — have stated that Act 10 never explicitly forbade bargaining at the UW Health system.

The 11-page opinion that Kaul issued Thursday affirms elements of those earlier opinions and goes further. 

Attorney General Josh Kaul | Dept. of Justice

While Act 10 put restrictions on bargaining rights of state and local government employees, the UW Hospital and Clinics Authority is not part of state or local government, Kaul concludes. “There is no prohibition that applies to the Authority or its employees” regarding collective bargaining the way there is with government employers and employees, he writes. “I conclude that it is within the Authority’s statutory power to voluntarily engage in collective bargaining.”

Kaul’s opinion also considers whether a Wisconsin law that still grants private sector employees the right to form unions and bargain collectively — known as the Peace Act — directly applies to the hospital and clinics authority, providing a stronger guarantee for UW Health employees’ union rights. 

When the hospital and clinics authority was created in 1995 to split the health system off from the state, the authority was identified as an employer under the Peace Act. Act 10 removed that language, Kaul writes, but that doesn’t necessarily mean that the authority is exempt from the Peace Act. If the Legislature intended to do that, “one would expect the text of the statute to say so,” he writes. But he reiterates that his opinion “does not conclusively opine on this issue.”

Kaul’s opinion was solicited in March by Gov. Tony Evers through the governor’s legal counsel. Both Evers and Kaul have publicly supported union rights for health care workers generally and the UW Health nurses in particular.

Sen. Melissa Agard (D-Madison), who has allied herself with the union campaign at UW Health since it was launched, issued a statement Thursday applauding Kaul’s opinion. “It’s time for UWHCA management to do the right thing, come to the table and bargain in good faith,” Agard said. “After the most challenging two year period for health care workers in generations, their labor must be honored and they must have a union voice in the workplace moving forward.”


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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.