that there is only one explanation for Act 10’s removal of the express reference—to exclude the Authority from the Peace Act’s coverage. But that is not the only possible explanation.
¶ 19. The Authority was added to the definition of an employer under the Peace Act in 1995, when the Authority split off from the state. At the time the Authority split from the University of Wisconsin, hospital and clinic employees were treated as a mixture of Authority and state employees, 1995 Wis. Act 27, § 9159(4), with the Authority employees covered by the Peace Act and the state employees employed by the Hospital and Clinics Board covered by SELRA. 1995 Wis. Act 27, § 224m (creating Wis. Stat. § 15.96); Wis. Stat. § 111.815 (2009–10) (including the Board under SELRA). That mixture ended with Act 10. 2011 Wis. Act 10, §§ 12 (repealing Wis. Stat. § 15.96), 377 (removing the language in Wis. Stat. § 233.10(1) that limited the Authority’s employment powers as previously stated in 1995 Wis. Act 27, § 9159(4)). That meant that language clarifying whether the Authority fell under the Peace Act was no longer needed. If the Legislature meant to do more—for the Authority to be uniquely exempt from coverage under the Peace Act—one would expect the text of the statute to say so. ¶ 20. As to legislative history, the Legislative Council memorandum cites to statements in the legislative history files concluding that 2011 Wis. Act 10 removed bargaining rights for the Authority’s employees. However, Act 10 changed many statutory provisions that applied to the Authority, and the comments in the legislative history do not explain which provisions of Act 10 they refer to. For example, the pre-Act 10 statutes included special bargaining rights for Authority employees, beyond the basic terms of the Peace Act. See Wis. Stat. § 111.05(5) (2009– 10). Act 10 eliminated those special rights. 2011 Wis. Act 10, § 195. Since the comments do not explain which bargaining rights they refer to or provide any analysis, it requires speculation to interpret them. ¶ 21. In any event, the legislative history may not be used “to vary or contradict” statutory text. Kalal, 271 Wis. 2d 633, ¶ 51. And, again, it would have been straightforward to expressly exempt the Authority from the Peace Act—just like the “state” and “political subdivisions thereof” are expressly exempted. ¶ 22. In sum, although this opinion does not conclusively opine on the issue, it appears that the Peace Act applies based on the statute’s plain language.
Authority to voluntarily bargain
¶ 23. Assuming that the Peace Act would not mandate collective bargaining, the Authority at a minimum has the power to voluntarily bargain.
¶ 24. Chapter 111’s bargaining provisions contain both mandates and restrictions for employers covered under the Peace Act, MERA (for municipal employers), or SELRA (for state employers). For example, under MERA, a covered “municipal employer is prohibited from bargaining collectively” on “[a]ny factor or condition of employment except wages.” Wis. Stat. § 111.70(4)(mb). SELRA imposes similar restrictions on the state of Wisconsin as employer: “The employer is prohibited from bargaining with a collective bargaining unit containing a general employee with respect to . . . [a]ny factor or condition of employment except wages.” Wis. Stat. § 111.91(3). ¶ 25. While chapter 111 contains these specific, explicit restrictions applicable to certain employers, it contains no overarching prohibition on bargaining that would apply to an employer not covered by the restrictions. That is highly significant under the rules of statutory construction. Words cannot be “read into” a statute. Dawson, 336 Wis. 2d 318, ¶ 42. That is doubly true where a statute has different, specific exemptions or restrictions. Town of Clayton, 317 Wis. 2d 424, ¶ 16. The Legislature knew how to prohibit a bargaining practice—there is express language doing just that for certain employers. It did not provide those prohibitions for employers not covered by SELRA or MERA. ¶ 26. As part of the public comment opportunity for the opinion request, the Authority submitted a comment citing two sources that it asserts support that it may not voluntarily bargain. Neither supports that position because each involved specific statutory prohibitions on bargaining. In LaCroix v. Kenosha Unified School District Board of Education, No. 13CV1899 (Wis. Cir. Ct. Kenosha Cnty. Mar. 19, 2015), the circuit court ruled that a covered municipal employer could not bargain contrary to the express “prohibit[ion]” in MERA. In the other source, the Supreme Court of New Hampshire ruled that a statute providing that “[i]n no case shall [the entity overseeing bargaining] certify a bargaining unit” of a certain composition prevented an entity from recognizing those uncertified bargaining units. Pro. Fire Fighters of Wolfeboro, IAFF Loc. 3708 v. Town of Wolfeboro, 48 A.3d 900, 904 (N.H. 2012) (citation omitted).
¶ 27. Rather than support the Authority’s position that it may not voluntarily bargain, these examples demonstrate what is missing here. The Authority is not a state employer covered by SELRA or a municipal employer covered by MERA, and so any restrictions for employers covered by those subchapters do not apply. There is no prohibition that applies to the Authority or its employees similar to those in the cited cases.
¶ 28. Not only is there no statutory bar to voluntary bargaining, but the statutes governing the Authority’s powers plainly encompass bargaining as a means to contract with its employees. By statute, the “authority shall have all the powers necessary or convenient to carry out the purposes and provisions of [chapter 233].” Wis. Stat. § 233.03. That is consistent with the powers generally vested in corporations in Wisconsin “to do all things necessary or convenient to carry out its business and affairs.” Wis. Stat. § 180.0302. Among other powers, the Authority is broadly authorized to employ an employee and “fix his or her compensation and provide any employee benefits,” Wis. Stat. § 233.03(7), and to implement “employment policies for employees,” Wis. Stat. § 233.04(2). It “shall employ such employees as it may require and shall determine the qualifications and duties of its employees.” Wis. Stat. § 233.10(1). And, as a general matter, the Authority is empowered to “[a]dopt bylaws and policies and procedures for the regulation of its affairs and the conduct of its business” and to “make and execute . . . instruments necessary or convenient to the exercise of [its] powers.” Wis. Stat. § 233.03(1), (2). The term “instrument” means a “written legal document that defines rights, duties, entitlements, or liabilities.” Instrument, Black’s Law Dictionary (11th ed. 2019); see Kalal, 271 Wis. 2d 633, ¶ 53 (explaining that plain meaning may be “ascertainable by reference to the dictionary definition”). This power to execute a legal document (an “instrument”) defining rights and duties would encompass a collective bargaining agreement. ¶ 29. Thus, the Authority is expressly and broadly empowered to determine the terms of its relationship with its employees and to enter into agreements defining rights or duties it agrees to.2 One means of carrying out these broad statutory powers would be to reach terms of employees’ employment through collective bargaining. Of course, that still must happen within the constraints of statutes that do exist. For
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2 As the Wisconsin Supreme Court has reiterated, even state agencies are empowered to act on these kinds of “explicit but broad” grants of statutory authority. Clean Wis., Inc. v. Wis. Dep’t of Nat. Res., 2021 WI 71, ¶ 25, 398 Wis. 2d 386, 961 N.W.2d 346. That is even more true for a “political corporation” or an “independent going concern,” which are vested with broad independent powers beyond what is vested in an arm of the state, as discussed in the text. example, “[a]ppointments to and promotions in the authority shall be made according to merit and fitness.” Wis. Stat. § 233.10(1). Voluntary bargaining would need to occur within the bounds of that provision and the surrounding statutory framework. ¶ 30. In addition to the statutory text, other authorities support this result, including a previous opinion from this office. In 59 Op. Att’y Gen. 200 (1970), the Attorney General addressed the University of Wisconsin’s voluntary recognition of a teaching assistants’ association. Id. at 201. UW-Madison had “voluntarily recognized” the association and “agreed to negotiate and contract . . . as though [chapter 111] were applicable.” Id. The opinion concluded that the contract was “legal and binding” under Wisconsin law, citing the broad statutory powers of the Board of Regents, who “clearly have the authority to enter into individual contracts” and, in turn, could enter into an agreement “which establishes the framework and standards of the individual employment contracts” as “an integral part of . . . contracting for personnel.” Id. at 202–04. Restated, “collective bargaining is an adjunct to individual employment contracts” and thus was within the Board of Regents’ existing statutory power to contract with employees. Id. at 205–06.
¶ 31. Various courts have agreed with those principles. Indiana’s court of appeals addressed a scenario where a school district adopted a voluntary policy for collective bargaining with employees despite neither state nor federal law requiring it. Mich. City Area Sch. v. Siddall, 427 N.E.2d 464 (Ind. Ct. App. 1981). The court agreed that the district was authorized to do so voluntarily under its statutory authority to fix terms of its employees’ employment. Id. at 466. The court explained that while the district had “no legal obligation to engage in collective bargaining with the . . . employees,” it “may do so voluntarily, and accordingly could properly declare qualifications or restrictions establishing a basis upon which it would agree to bargain collectively.” Id. at 468. As another example, the Eighth Circuit held that a city could contract for additional benefits for employees regardless of the narrower coverage of a particular statutory bargaining law. Am. Fed’n of State, Cnty. & Mun. Emps. v. City of Benton, 513 F.3d 874, 881 (8th Cir. 2008). The court recognized that such a contract does not “contract away its right to manage the fiscal matters of the City” but rather is an “exercise[ ]” of its “functions.” Id. Similarly, Utah’s court of appeals held that a school board could choose to collectively bargain under its statutory authority to enter into employment contracts. Park City Educ. Ass’n v. Bd. of Educ. of Park City Sch. Dist., 879 P.2d 267 (Utah Ct. App. 1994). There, too, the bargaining did not delegate its statutory powers but rather was an exercise of them. Id. at 269–71 (collecting cases stating the weight of authority); see also Del. River Port Auth. v. Fraternal Ord. of Police, 290 F.3d 567, 574 n.11 (3d Cir. 2002) (noting that where an entity was under no “legal duty” to bargain, it was “free to voluntarily
recognize and bargain collectively with” employees (citation omitted)).3
¶ 32. As observed in these many court decisions,4 collective bargaining is simply a method of carrying out existing statutory authority to enter into employment agreements.
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3 For these reasons and additional ones, the present scenario does not involve improperly contracting away public powers, as the Authority posits in its comment letter. Rather, the cases the Authority cites are distinct, addressing municipalities’ contracting away the state’s sovereign powers. See Adamczyk v. Town of Caledonia, 52 Wis. 2d 270, 275, 190 N.W.2d 137 (1971) (discussing the distinct scenario where a town purported to contract away the “the state’s sovereign[ ]” power to remove certain officers without cause); State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 80, 205 N.W.2d 784 (1973) (stating that a municipality may contract away its business or propriety powers but may not contract away its governmental powers). As the authorities in the text make clear, the bargaining discussed here is a method of exercising a statutory power—determining and entering into an employment agreement—and does not involve contracting away any powers, much less the state’s sovereign ones. 4 To the extent that the Authority’s contentions about the practicality of voluntarily engaging in collective bargaining bear on the question of whether the Authority is permitted to collectively bargain, these and other sources demonstrate that employers have indeed successfully implemented voluntary collective bargaining agreements. See supra ¶ 31; see also City of Phoenix v. Phx. Emp. Rels. Bd. ex rel. Am. Fed’n of State, Cnty. & Mun. Emps. Ass’n, Loc. 2384, 699 P.2d 1323, 1327 (Ariz. Ct. App. 1985) (discussing the establishment of an ordinance modeled after the National Labor Relations Act); Ann C. Hodges, Lessons from the Laboratory: The Polar Opposites on the Public Sector Labor Law Spectrum, 18 Cornell
J.L. & Pub. Pol’y 735, 752 (2009) (discussing memoranda of agreement with employers); Martin H. Malin, Life After Act 10?: Is There a Future for Collective Representation of Wisconsin Public Employees?, 96 Marq. L. Rev. 623, 641–55 (2012) (discussing various agreements and models).
Conclusion
¶ 33. In summary, although this opinion does not reach a conclusion on the issue, it appears that the Peace Act includes the Authority in its coverage based on the statute’s plain text. Assuming that the Authority is not covered by the Peace Act, I conclude that it is within the Authority’s statutory power to voluntarily engage in collective bargaining.5
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Sincerely, JLK:ADR:jrs
