STATE OF WISCONSIN DEPARTMENT OF JUSTICE
Josh Kaul Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857 608/266-1221
TTY 1-800-947-3529
June 2, 2022
OAG–01–22
The Honorable Tony Evers Governor
State of Wisconsin
115 East, State Capitol Madison, WI 53702
Dear Governor Evers:
¶ 1. You have requested an opinion regarding the power of the University of Wisconsin Hospitals and Clinics Authority (the “Authority”) to voluntarily engage in collective bargaining with an organization chosen by a majority of nurses it employs. Your request notes that the Authority is not mentioned in chapter 111 of the Wisconsin Statutes, which governs employment relations and collective bargaining. If that lack of express reference means that the Authority is not covered by chapter 111’s collective bargaining provisions, you posit that the Authority is not prohibited from voluntarily engaging in bargaining, as state law would neither require nor prohibit it.
¶ 2. Before addressing your question about voluntary bargaining, I discuss a threshold issue of whether chapter 111’s mandatory collective bargaining provisions apply to the Authority, meaning it would be required to bargain. Although this opinion does not reach a conclusion on this issue, it appears that the Authority would be covered by the plain language of chapter 111’s subchapter known as the Peace Act. As to the direct question you pose, even assuming the Authority is not covered by the Peace Act—and, thus, is not required to collectively bargain—then it would still have the power to voluntarily bargain. The 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.
¶ 3. Your request involves statutory interpretation, which applies the language of the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. “Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id. The statutory language is “interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id. ¶ 46. If this textual analysis “yields a plain, clear statutory meaning, then there is no ambiguity,” and the statute should be applied according to that plain meaning. Id. Courts may not “disregard the plain, clear words of the statute.” Id. (quoting State v. Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). Similarly, a court cannot “read into the statute words the legislature did not see fit to write.” Dawson v. Town of Jackson, 2011 WI 77, ¶ 42, 336 Wis. 2d 318, 801 N.W.2d 316. Applicability of the Peace Act
¶ 4. In determining what power or obligation the Authority has under Wisconsin law to engage in collective bargaining, the threshold question is whether the Authority is covered by the Peace Act. This issue was not the central focus of the submissions that have been made regarding this matter, and this opinion does not reach a formal conclusion on this issue. Nevertheless, because a court would begin its analysis with this issue and it could render moot the question whether the Authority may voluntarily engage in collective bargaining, this opinion preliminarily analyzes whether the Authority is covered by the Peace Act.
¶ 5. The Peace Act grants employees statutory rights “to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining.” Wis. Stat. § 111.04(1). In turn, it provides processes for “collective bargaining,” which is defined as “the negotiation by an employer and a majority of the employer’s employees in a collective bargaining unit . . . concerning representation or terms and conditions of employment.” Wis. Stat. § 111.02(2). ¶ 6. The Peace Act’s coverage of employers and employees is broad. An “[e]mployee” means “any person, other than an independent contractor, working for another for hire in the state of Wisconsin in a nonconfidential, nonmanagerial, nonexecutive and nonsupervisory capacity, and shall not be limited to the employees of a particular employer unless the context clearly indicates otherwise.” Wis. Stat.
§ 111.02(6)(a). Its coverage of employers is equally broad: “[e]mployer” means “a person who engages the services of an employee.” Wis. Stat. § 111.02(7)(a). ¶ 7. There are only two exceptions in the Peace Act’s definition of “employer”:
(1) for the “state or any political subdivision thereof” and (2) for a “labor organization.” Wis. Stat. § 111.02(7)(b). The exceptions for the state and political subdivisions exist because different subchapters specifically address state employees and employers (subchapter V, the State Employment Labor Relations Act, commonly known as SELRA) and municipal employees and employers (subchapter IV, the Municipal Employment Relations Act, commonly known as MERA). SELRA covers, with certain exceptions, “[a]ny state employee in the classified service of the state” and other listed state employees, and it binds “the state of Wisconsin” as an “employer.” Wis. Stat. § 111.81(7), (8). MERA defines its coverage of employers as including “any city, county, village, town . . . or any other political subdivision of the state.” Wis. Stat. ¶ 8. Where a statute provides a “specific exception,” courts will not read additional ones into it. Courts presume “that the legislature intended to exclude other exceptions.” Town of Clayton v. Cardinal Constr. Co., 2009 WI App 54, ¶ 16, 317 Wis. 2d 424, 767 N.W.2d 605 (citation omitted). Restated, “if [a] statute specifies one exception to a general rule . . . , other exceptions or effects are excluded.” Georgina G. v. Terry M., 184 Wis. 2d 492, 512, 516 N.W.2d 678 (1994) (first alteration in original) (citation omitted). ¶ 9. Given that the Authority is not a labor organization, to determine the Peace Act’s coverage, a court would examine whether the Authority fits into the specific employer exceptions for the “state” or “a political subdivision thereof.” Otherwise, the statute’s coverage would apply by default, as it does for all other employers.
¶ 10. Multiple sources support that the Authority is not the “state.” Rather, it is a “public body corporate and politic,” also known as a “political corporation,” and it has characteristics in common with an “independent going concern.” Wis. Stat.
