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UW Hospitals and Clinics Authority may voluntarily recognize a union formed by UW Health nurses and engage in collective bargaining, Attorney General Josh Kaul concluded.

The UW Hospitals and Clinics Authority may voluntarily recognize a union formed by UW Health nurses and engage in collective bargaining, Democratic Attorney General Josh Kaul concluded in a formal opinion issued Thursday.

The opinion comes in response to a request sent by Democratic Gov. Tony Evers in March, following years of efforts by nurses to form a union and have it recognized by UW Health.

Since 2019, nurses at UW Health have sought to form a union, with help from SEIU Healthcare Wisconsin. UW Health administrators agree the health care system has been pushed to the brink and acknowledge the toll it’s taking on nurses — but they argue the 2011 state law known as Act 10 prevents unionization from being the answer.

Cost-cutting measures implemented over the last five years have left nurses concerned about understaffing, overwhelming patient loads and high turnover rates — things they argue have a negative effect not only on nurses and hospital employees, but on patients, too. At their worst, they say, the changes create unsafe situations. And they say the COVID pandemic has elevated the problem to a crisis level.

Act 10 — the 2011 law signed by Republican former Gov. Scott Walker — effectively eliminated collective bargaining rights for most public employees. 

In a December 2021 letter to employees, UW Health CEO Dr. Alan Kaplan cited several legal opinions in his conclusion that “no further action can be taken (in terms of recognizing a nurses union) until current state laws are changed.”

“We recognize and appreciate that this reality is very difficult for some employees. We hope that their clear passion can be redirected toward the state legislature, which is the most appropriate venue for this debate. At the same time, I am asking and hoping that those passionate about a nurse union fully commit to our team efforts,” he wrote in the 2021 letter.

But nurses pushing for unionization have pointed to another memo, prepared at the request of state Sen. Melissa Agard, D-Madison, in October 2021. 

The nonpartisan Wisconsin Legislative Council concluded that, under Act 10, although the UW Hospitals and Clinics Authority has no legal duty to recognize an employee union, it may voluntarily acknowledge such an organization. In that case, UWHCA could allow the union to participate in discussions on wages, hours and working conditions.

Kaul’s opinion, released Thursday afternoon, determined as much.

Under Wisconsin law, the attorney general is required to issue an opinion on legal questions submitted by the Legislature and by certain state government officials. Courts are not required to follow those opinions, but they often do.

In his opinion, Kaul did not form a conclusion on whether UW Health is required to collectively bargain — only that it is allowed to. 

The Hospitals and Clinics Authority “has broad powers to contract with its employees and set their terms of employment, and it could choose to do so via a voluntary collective bargaining process,” Kaul wrote.

"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," said UW Health spokesperson Emily Kumlien in a statement.

Members of the UW Health nurses' union organizing committee said in a statement that "UW Health must recognize our union immediately in order to solve the spiraling crisis in our facilities, which includes dangerous understaffing and turnover that put patient care at risk."

"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," the nurses said.

In his letter requesting the opinion, Evers’ chief legal counsel, Ryan Nilsestuen, asked for Kaul’s decision to be expedited.

In January of this year, Evers spoke with more than 400 UW Health nurses in an online forum. He followed the meeting with a statement in support of their unionization efforts, saying nurses “can advocate most effectively for themselves and their patients when they have a union voice and have actual power in the decision-making process.”

“The Evers Administration has heard from nursing staff who have reported that morale is at a crisis point as hospitals resume elective procedures without contending with increased staffing shortages and retention considerations,” Nilsestuen wrote to Kaul. “Additionally, resolution of this issue could be essential in avoiding a labor disruption. As we continue to navigate the coronavirus pandemic and currently decreasing community emphasis on protective measures, ensuring consistency of care is imperative.”

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