Union and UW Health trade legal arguments on nurses’ union rights

One month after UW Health and the nurses seeking union representation at the Madison-based hospital system declared a truce and averted a strike, the two sides have each taken to their legal corners.

As part of the agreement that called off the planned three-day strike by UW Health nurses, the UW Hospital and Clinics Authority (UWHCA) and the nurses’ union, SEIU Healthcare Wisconsin, joined hands in a legal proceeding to get a ruling on whether the nurses are covered by that state’s private sector labor relations law.

The first step in that proceeding was a petition asking the Wisconsin Employment Relations Commission (WERC) to answer that question. But while the union and the hospital system concurred on the question to ask, their subsequent legal arguments make it clear they remain on opposite sides when it comes to the answer.

Legal briefs, the last of which was submitted Friday, outline the arguments of both the union and the hospital system.

The dispute centers on Act 10 — the 2011 law that stripped most collective bargaining rights from most public employees. Act 10 included language that specifically excluded the state and local governments and their employees from the Wisconsin Employment Peace Act. 

The 1939 Peace Act “protects the right of ‘employees’ to engage in  ‘self-organization and the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection,’” write the union lawyers in the SEIU’s opening brief. The union is represented by the law firm of Pines Bach in Madison. 

SEIU contends that UW Health is covered by the Peace Act and as such its employees have full collective bargaining rights. Nothing in the state’s written laws excludes either UW Health or the nurses from the law, the lawyers argue.

Lawyers for UW Health, however, contend that Act 10  also removed UW Health from the Peace Act’s coverage. UW Health is represented by Quarles & Brady.

The Legislature created the UW Hospital and Clinics Authority in 1995 when the hospital system was severed from the University of Wisconsin. That law included language that explicitly extended the Peace Act to cover UWHCA and its employees.

But Act 10 “cut away … every word that had placed the Authority under the Peace Act…,” say UW Health lawyers in their opening brief. As a consequence, “just as before 1995, the plain meaning of the Peace Act does not encompass the authority.”

UW Health’s lawyers point to details in the history of Act 10 that they argue show lawmakers who passed the bill intended to exclude the hospital system from the Peace Act. 

SEIU’s lawyers however, argue that that history is irrelevant given what’s in state laws as they are written. Even with Act 10’s removal of explicit references that applied the Peace Act to the UW Hospital and Clinics, “the plain words of the Peace Act capture UWHCA, its employees and their chosen representatives within its coverage.”

Earlier this year, Attorney General Josh Kaul, a Democrat, issued a legal opinion in which he stated that the UW Health employees might fall under the Peace Act. Kaul’s opinion held that nothing in state law forbids UW Health from voluntarily recognizing and negotiating with unions. But he stopped short of a definitive answer on whether the Peace Act covers the hospital system or its employees.

UW Health’s brief states that as a partisan officeholder — and given Kaul’s outspoken support for the nurses’ unionizing effort for more than a year — Kaul’s opinion on the Peace Act should have no weight as WERC considers the question.

Eight years of struggle

In 2014, citing Act 10, UWHCA refused to bargain new contracts with SEIU and other unions after their last contract with the hospital system.

UW Health argues that in not pursuing the issue legally at the time, SEIU was effectively admitting that employees were no longer covered by the Peace Act. The hospital system’s lawyers suggest that the union only changed its interpretation after “a recent change in the political winds brought a fresh take from a new Attorney General.”

The union’s lawyers counter that while the bargaining rights of UWHCA employees were “unclear” and that the union “chose not to fight” in 2014, SEIU did not decertify as the nurses’ union. The brief states that the union is already the certified representative for the nurses and could begin bargaining immediately “upon declaration that the Peace Act governs these parties.”

The union’s final brief also takes note of UW Health’s acquisition in 2015 and its absorption of a private hospital system in Rockford, Ill. The result makes UW Health “virtually indistinguishable from any private sector health care provider” in Wisconsin, and “it should not be treated differently,” the brief states.

While there’s not a hard deadline for WERC to issue a decision, a commission official said Monday that it was expected to be concluded by the end of October, with formal publication in November.

Regardless of the outcome, an appeal appears almost certain. The agreement between UW Health and SEIU to seek the WERC ruling anticipates that the issue will ultimately wind up before the Wisconsin Supreme Court. It leaves open the possibility that the question will bypass lower courts and go directly to the high court once the employment relations commission issues its finding.