uw health nurses protest (copy)

Supporters of a nurses' union stand outside of UW Health's emergency room in March as passing motorists honk their horns. 

Wisconsin media reports have detailed the urgent efforts of the nurses employed by the University of Wisconsin Hospitals and Clinics Authority (UWHCA) to obtain recognition of their chosen union representative and collective bargaining. According to the reports, these nurses are seeking a voice in dealing with a crisis in the hospital system, aggravated by the pandemic, which they believe risks the health and safety of patients.

As a law professor and coauthor of the only law school casebook on public sector labor and employment law, I have closely followed the legal developments in Wisconsin related to governmental employment for many years. Wisconsin was the first state to adopt a law governing public sector collective bargaining in 1959, and in 2011, in dramatic fashion, drastically revised the law. UWHCA is apparently relying on these changes in the law to decline to recognize and bargain with the union supported by the nurses.

Government employees have a long-settled federal constitutional right to join and support labor unions. Government employers, however, are required to recognize and bargain with such unions only through legislation enacted by state, local or federal governments. States vary significantly in their legislation relating to recognition and bargaining. Some states protect bargaining rights for all government employees. Some, like Wisconsin, protect such rights for only certain governmental employees. And a few completely prohibit government employers from bargaining with unions representing their employees. The Wisconsin legislation contains no such prohibition on bargaining.

What Wisconsin did in 2011 was to eliminate the statutory obligation to bargain with a union that achieves majority representation status for these hospital employees. As recognized by the Governor’s Office in its request for an attorney general opinion on this issue, and by the nonpartisan Wisconsin Legislative Council, the amended collective bargaining law does not address UWHCA at all. It neither mandates recognition and bargaining with a majority representative nor prohibits it. This leaves the decision up to the UWHCA, which has the legal authority to establish its own personnel policies.

In many other states without collective bargaining legislation, employers voluntarily recognize and bargain with unions representing their employees. In Tennessee, which has no statutory bargaining mandate, the cities of Memphis and Nashville have recognized unions as exclusive representatives in a variety of bargaining units and negotiated agreements covering those employees. These cities have proceeded despite state court rulings holding that the cities lack such authority.

In Virginia, where I live, the law expressly barred local governments from recognizing unions and negotiating collective bargaining agreements until last year. Nevertheless, some localities and school boards recognized and bargained with unions, negotiating a series of nonbinding memoranda of understanding with which both parties complied. In other states, where there is no similar statutory or judicial opinion articulating a prohibition on bargaining, government employers regularly recognize and bargain with unions by choice in the absence of any legal requirement.

Employers that voluntarily choose to bargain with unions recognize that there are benefits to enabling the collective voice of employees. Employers and unions can work together to improve the workplace, including cooperating to enhance areas such as training, retention and patient health outcomes. There are research findings that patient outcomes improve in hospitals when nurses unionize. The Norfolk Virginia School Board and the union representing its teachers partnered to improve student outcomes, resulting in receipt of the Broad Prize for Urban Education in 2005. Employers like UWHCA, with the legal authority to set their own workplace policies, may determine that it is to their benefit to recognize and bargain with a union representing their employees even though they are not statutorily required to do so.

There is no legal impediment in any Wisconsin statute to such a decision. It is entirely up to the UWHCA to decide whether recognition of the nurses’ union, and empowering the nurses with a collective voice can help alleviate the current crisis in health care.

Ann C. Hodges is professor emerita at the University of Richmond School of Law and visiting professor of law at the University of Virginia. She is co-author of the books "Principles of Employment Law" and "Public Sector Employment: Cases and Materials."

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