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Josh Kaul: UW Hospital can recognize and bargain with a union voluntarily

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More than two years after UW Hospital nurses asked managers to recognize the revival of a union lost after a 2011 state law, Democratic Attorney General Josh Kaul on Thursday said the hospital can contract with its employees and set their terms of employment via a voluntary collective bargaining process.

Kaul’s nonbinding opinion, a boon for labor rights, came after Democratic Gov. Tony Evers in March asked him whether UW Hospital is prohibited under state law from voluntarily recognizing and engaging in collective bargaining with a union. The UW Hospital Board has repeatedly said it could not recognize or bargain with a union under state law.

“Nurses at UW Health got one step closer to the union recognition they’ve fought so hard for!” state Sen. Chris Larson, D-Milwaukee, said on Twitter after Kaul issued the opinion.

“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,” UW Health spokesperson Emily Kumlien said in a statement.

Amid the legal debate, nurses have drawn attention to what they say are difficult working conditions that threaten patient safety as the COVID-19 pandemic continues.

“Families need our attention now more than ever, but with the staffing and retention crisis it’s difficult to give the care they need,” Kelly O’Connor, a UW Hospital nurse, said in an SEIU statement Jan. 13.

Kaul didn’t reach any conclusion as to whether UW Health, one of the largest employers in Dane County, is required to collectively bargain. But he did state the mandatory bargaining provisions in the labor-focused Wisconsin Employment Peace Act appear to apply to the hospital. Even if that statute isn’t applicable, Kaul noted, UW Hospital would still be able to engage in voluntary collective bargaining with SEIU Healthcare Wisconsin, which is trying to reestablish the union dissolved after the passage of former Republican Gov. Scott Walker’s 2011 Act 10.

Unlike other public employees affected by Act 10, which banned collective bargaining except for cost-of-living pay increases, UW Hospital workers are not state or municipal employees.

When the hospital became a public authority separate from the university in 1996, it acquired its own special status. How Act 10 and other laws apply to that status has accounted for most of the legal arguments over whether UW Health can recognize the union for collective bargaining.

At the time of Walker’s signature legislation, hospital administrators said they didn’t ask for the law to abolish unions at the hospital but that it did. In 2014, when a contract for about 2,000 nurses and therapists represented by SEIU expired, they lost the union.

In December 2019, shortly before the pandemic began, nurses announced they were restarting the union and asked the UW Hospital Board to voluntarily recognize it. Initially, the nurses called for a “meet and confer” process, which is what Madison Teachers Inc. and the Madison School District used after Act 10 to develop an employee handbook. Recently, the nurses have called for full collective bargaining of a contract.

The UW Hospital Board and hospital leaders have repeatedly said the law doesn’t allow them to recognize and bargain with the union.

A May 20, 2021, memo from the nonpartisan Wisconsin Legislative Council seemed to back the position of the board, formally known as the UW Hospital and Clinics Authority, or UWHCA. Act 10 “removed the authority for UWHCA to recognize a union as an exclusive bargaining representative for employees,” the memo said.

An Oct. 4, 2021, memo appeared to reach a different conclusion. 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,” it said.

Kaul’s opinion is most closely aligned with the second memo.

“Not only is there no statutory bar to voluntary bargaining, but the statutes governing the Authority’s powers plainly encompass bargaining as a means to contract with its employees,” he said in the opinion released Thursday.

“It’s time for UWHCA management to do the right thing, come to the table and bargain in good faith,” state Sen. Melissa Agard, D-Madison, said in a press release Thursday. “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.”

Fave 5: Reporter David Wahlberg picks his top stories of 2021

COVID-19 dominated my year again as the State Journal’s health reporter, except for June and July, when it seemed we might overcome it. Vaccinations and variants were new angles this year. I also covered continuing deaths from the pandemic and challenges for health care workers.

During the summer dip in coronavirus activity, I wrote about a little-known hereditary disorder tied to several cancers, for which Fitchburg-based Promega Corp. has developed related testing.

This fall, I spent much of my time working on a three-day series about newborn screening, focusing on how the testing varies among states. If you were born since the mid-1960s or had a child since then, you’ve almost certainly taken part in this screening, which looks for rare diseases for which prompt treatment can prevent death or disability.


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