Around Madison, supporters of UW Health nurses seeking union representation have posted yard signs expressing their position. (Photo by Erik Gunn/Wisconsin Examiner)

A campaign for union representation by nurses working for UW Health reached the Wisconsin Supreme Court Wednesday with an argument over whether state law grants them collective bargaining rights or has definitively taken those rights away.

Tamara Packard, the lawyer for the Service Employees International Union (SEIU), argued that the employees of UW Hospital and Clinics Authority — the corporation that operates as UW Health — have union rights under the Wisconsin Employment Peace Act.

“The language that’s in the statute now incorporates all employers except those that are excluded,” Packard said — and the hospital system authority is not one of those.

An attorney for the hospital authority asserted that the UW Health employees’ union rights were explicitly removed as part of the 2011 law known as Act 10, however.

Act 10, enacted early in Scott Walker’s first term as governor, stripped public employees — except for most police and firefighters — of all but the most rudimentary union rights.

But it also made changes related to the University of Wisconsin Hospital and Clinics Authority — a corporate entity that was spun off in 1996 from the University of Wisconsin under 1995 Act 27. The law created a public authority with connections to the state but getting no direct state funding.

Act 27 specified that the hospital system authority was an employer under the Peace Act and included a guarantee of union rights for the hospital system’s employees, who were represented at the time. But Act 10 undid both of those provisions, said James Goldschmidt, of Quarles & Brady, representing UW Health.

The law repealed legal language “expressly stating that the authority is a covered employer,” Goldschmidt said, along with  language “expressly obligating the authority to engage in collective bargaining.” And it repealed all references to the hospital authority in the Peace Act, along with all references to the Peace Act in the law creating the authority.

“Repeal, repeal, repeal,” Goldschmidt said. “You cannot read this act [Act 10] that the Legislature enacted without seeing those changes. Those are part and parcel of the law itself.”

Widespread assumption

For 11 years after Act 10’s passage, virtually everyone involved — union and hospital officials alike — assumed that the law barred collective bargaining for UW Health employees. When nurses employed by the hospital system announced in December 2019 that they wanted to be represented again by SEIU, they framed their demand as a request for voluntary engagement with hospital system management to discuss wages and working conditions.

In 2021, that changed, starting with a legal opinion — also written by Packard, an attorney for the Madison law firm of Pines Bach — that Act 10 didn’t bar collective bargaining at UW Health. A subsequent opinion by state Attorney General Josh Kaul said that UW Health might fall under the Peace Act, but sidestepped a firm declaration on that point.

In September 2022, as nurses demanding union recognition were on the verge of a three-day strike, SEIU and UW Health officials reached an agreement brokered by Gov. Tony Evers that included a joint petition to the Wisconsin Employment Relations Commission (WERC).

In the petition, the union argued that the hospital should be considered an employer under the Peace Act, while UW Health argued that Act 10 barred collective bargaining at the hospital system. WERC sided with UW Health, and Dane County Circuit Judge Jacob Frost subsequently affirmed the employment commission’s conclusion.

That was the ruling before the Supreme Court Wednesday.

Justice Brian Hagedorn noted — as UW Health’s lawyers did in their brief on the case — that in a federal court challenge to Act 10 more than a decade ago, SEIU had itself stated the union lost bargaining rights at UW Health.

Packard acknowledged as much, but said the union’s position now was “based on, largely, the law that has developed in the last 13 years.”

Defining an ‘employer’

The argument centered on wording in the Employment Peace Act defining an employer, and whether Act 10’s provisions applying to the UW Hospital and Clinics Authority clearly excluded the hospital system from that definition.

Packard said that the Peace Act defines a “person” in the corporate sense as an “employer” with workers who have a right to collective bargaining.

The Court has previously affirmed that UW Hospital and Clinics Authority is a “person” in another legal context. For that reason, Packard said, “the plain language” of the law requires treating the hospital authority as an employer under the Peace Act.

Act 10 repealed language in Act 27 explicitly declaring that the hospital system is a Peace Act employer. But that didn’t change how the act defines an employer, she said.

The Legislature explicitly excluded public employees and unions from the Peace Act’s definition of an employer. “The Legislature . . . if it meant to, could have included the hospital and clinics authority in that list of exceptions, and it did not,” Packard said.

Goldschmidt countered that the Peace Act’s definition of person “does not include a special entity, like the [hospital and clinics] authority, which is a legislatively created public body.”

When Act 27 was passed, the Legislature defined the new hospital and clinics authority as an employer subject to the Peace Act because “it was neither fish nor fowl — it was neither fully public nor fully private,” Goldschmidt said. Act 10 took away the Peace Act’s coverage, he reiterated.

Justice Rebecca Dallet questioned treating the hospital authority as a distinctly different entity, however.

“It’s a private corporation,” Dallet said, and has been treated as one in unrelated court decisions. When the Legislature passed Act 10, she said, “regardless of what they were repealing . . . the words on the page still say ‘employer’ and that a corporation is an employer.”

Packard argued that the language in the Peace Act is unambiguous, making no exception for UW Health as an employer. She called that a sufficient reason to declare the act covers the hospital and clinics authority without delving into the history of the law.

Two of the Court’s three-member conservative wing took exception to that argument.

Statutory history “is part of the way we make sense of the text,” said Hagedorn. “It seems that your argument is entirely premised on sort of a myopic focus on text and ignoring the statutory history context.”

Justice Rebecca Bradley agreed. “Act 27 was quite explicit in including the [hospital] authority in the definition of employer,” she told Packard. “Act 10 repealed that language. You can’t win unless you ask us to disregard that statutory history. That’s enacted law.”

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