Despite Act 10, Union Argues UW Health Nurses Can Collectively Bargain

A union representing nurses in Madison is asking the Wisconsin Supreme Court to require UW Health to collectively bargain despite Act 10 stripping those rights from most public employees in 2011.

The lawsuit before the court was filed by Service International Employees Union, or SEIU, and stems from a 2022 agreement with the University of Wisconsin Hospitals and Clinics Authority, or UWHCA, to avoid a strike. The union was phased out in 2014 following the the passage of Act 10 under former Republican Gov. Scott Walker, but UW Health nurses revived it in 2019 and demanded it be recognized by the UW authority.

During oral arguments Wednesday, SEIU attorney Tamara Packard urged justices to conduct a strict reading of a decades-old state law called the Wisconsin Employment Peace Act when analyzing the case. She said the UWHCA is considered an employer under the peace act and the law shows the “state’s public policy is to encourage collective bargaining.”

In 2022, the Wisconsin Employee Relations Commission declared the Employment Peace Act does not apply to UWHCA.

Packard told justices that unless the meaning of the statute is unclear, justices “may stop there” without reviewing subsequent statutory history, including Act 10.

Conservative Justices Brian Hagedorn and Rebecca Bradley took issue with the suggestion. Bradley asked whether Packard was asking the court to ignore Act 10, which explicitly eliminated collective bargaining for UWHCA employees.

Packard said the court can review the 2011 law if it wants. But she said the text of the peace act shows lawmakers also made a choice not to exempt the UWHCA .

“In the peace act … there is a whole section of exceptions from the definition of employer,” Packard said. “The Legislature could have included the hospital authority in that list of exceptions, and it did not.”

Hagedorn said he’s unaware of any case in the last 20 years where the Supreme Court has suggested justices need to identify ambiguity in a law before considering subsequent statutory history. He also noted Packard represented SEIU and other public unions in a 2014 federal lawsuit challenging the constitutionality of Act 10. At the time, he said, she argued the law removed collective bargaining rights.

“I mean, you represented in federal court that the statute had exactly the effect you’re saying right now it does not,” Hagedorn said.

In her response, Packard said SEIU is making a different argument now that focuses on statutory interpretation, not constitutional rights.

UW Health attorney says union’s argument not based in reality

Attorney James Goldschmidt, who is representing the UW Health and Clinics Authority, said the union’s argument isn’t based in reality. Moreover, he said justices would have to overturn past cases if they sided with SEIU, which would create an “absurd result that the Legislature somehow failed to do what it told everyone quite loudly and clearly it was doing in Act 10.”

“And there is an element of all this that, I must confess, feels a little bit like ‘The Emperor’s New Clothes,’ where everyone has a firm grasp on reality, until a new tailor comes to town and says, ‘I’m going to make you a garment that only the most sophisticated people can see,’” Goldschmidt said. “And now, we’re presented with this interpretation of what happened in Act 10, that everyone knows is not what happened, and we’re asked to accept that as reality.”

After reading a long list of references to sections of other state statutes included in the legislative history included with Act 10, outgoing liberal Justice Ann Walsh Bradley asked Goldschmidt whether an attorney or judge in Richland County would be able to understand it.

Goldschmidt said an attorney might get it wrong, “but this court holds itself to a high standard and it explains very clearly that when you set out to interpret a statute, you don’t just look at the words on a page.”

Bradley appeared unsatisfied and said statutes aren’t just for the courts or the Legislature and said she’s concerned only “one of those of the selected few really know what all of these numbers and digits mean.”

A broader lawsuit challenging Act 10 is still working its way through the state court system. Hours after Wednesday’s oral arguments, the Supreme Court announced it would not hear that case before a state appeals court has ruled.

Listen to the WPR report

Union tells Supreme Court that UW Health can collectively bargain despite Act 10 was originally published by Wisconsin Public Radio.