The Board of Education of Unified School District No. 279
(Board) appeals from a district court decision finding that the
Jewell-Randall Education Association (Association) has standing
to file a prohibited practice complaint after negotiations have
ended and unilateral contracts have been issued, that the Board
may include terms in a unilateral contract that were neither
noticed nor negotiated, that the Secretary of the Kansas
Department of Human Resources (Secretary) had authority to order
the Board to pay $7,700 to the Association as a remedy for
violating K.S.A. 72-5429, and that the relief granting authority
given to the Secretary under K.S.A. 1989 Supp. 72-5430a(b) does
not violate the Kansas Constitution. The Association
cross-appeals from the district court decision finding that the
Board's failure to make the unilateral contract salary increase
retroactive did not constitute a prohibited practice pursuant to
K.S.A. 72-5430. We affirm in part and reverse in part.
In January 1985, both the Association and the Board submitted
notice of the items they proposed to negotiate for inclusion in
the 1985-86 collective bargaining agreement in accordance with
K.S.A. 1989 Supp. 72-5423(a). In the course of negotiations, the
parties reached agreement on all issues except base salary and
fringe benefits. In May 1985, both parties declared they were at
impasse, and the impasse procedures of mediation and factfinding
were initiated pursuant to K.S.A. 72-5427 and 72-5428. In October
1985, the Board's representatives rejected the factfinder's
recommendations and made a counterproposal to the Association.
The counterproposal offered wage increases of 10.03% and fringe
benefit increases, both effective with the December payroll, not
retroactive to the beginning of the school year. In April 1985,
prior to impasse, the Board had made the same offer except that
it was to be effective with the beginning of the school year. The
October offer was $8,536 less than the previous offer. The
Association's negotiating team rejected the counterproposal.
Since no agreement was reached, the Board issued each teacher in
the district a unilateral contract which provided a wage increase
of 10.03% and a fringe benefit increase, both effective with the
December payroll. Eighteen of the twenty teachers signed the
During the fall of 1985, several articles regarding the Board's
proposal appeared in the Jewell County newspaper. The first
discussed the factfinder's report, the Board's October proposal,
and the Association's rejection of the proposal. The second
article discussed the unilateral contract offer, stating:
"The Board's new compensation package will become
effective December 1, 1985. . . .
"To date the Association's refusal to accept the
Board's 10.03 percent offer has cost the school
district over $7,700, not including the cost of the
man hours required by the administration and board
members to deal with the negotiations deadlock. The
School Board does not feel that this cost should be
borne by the taxpayers of USD 279. For this reason
the Board has deducted the $8,536 to cover the
current and future costs of completing this year's
negotiations. The Board does not feel that it is fair
for the Association to now expect the Board to offer
the same amount of money proposed in good faith by
the Board over half a year ago."
The Association filed a complaint against the district,
alleging that the unilateral contract altered certain terms which
were not noticed for negotiation and that the Board's failure to
negotiate the terms which were not noticed was a prohibited
practice as defined by K.S.A. 72-5430(b)(1), (3), (6), and (7).
The Association additionally alleged that the Board's refusal to
make the compensation package retroactive to the beginning of the
1985-86 school year constituted bad faith in professional
negotiations in violation of K.S.A. 72-5430(b)(1), (5), (6), and
(7). The Association requested the Secretary to grant the
1. Order the Board to reissue the unilateral contract
omitting the changes in the items not noticed for
negotiation and to give retroactive effect to the
unilateral contract to the beginning of the 1985-86
2. Order the Board to issue a statement to the
teachers acknowledging it committed the prohibited
practices alleged and assuring the teachers that it
will refrain from interfering with the rights of
the Association in the future.
3. Order the Board to post a notice in all attendance
centers and the administrative offices
acknowledging it committed the prohibited practices
alleged in the complaint.
4. Assess a fine of $500 against the Board payable to
A hearing was held before the Secretary during which the
parties stipulated to the facts. The Secretary concluded:
1. The Association had authority or standing to file
a timely complaint after the Board tendered a
unilateral contract offer to the teachers.
2. The Board's act of changing unnoticed subjects in
the unilateral contract offer was remedied by
3. The deduction of $8,536 from the Board's original
salary offer and the salary offered in the
unilateral contract, and the suggestion that $7,700
of the deduction was used to pay for the Board's
factfinding services constituted a violation of
K.S.A. 72-5430(b)(1) and (5).
The Secretary ordered the Board to pay $7,700 to the Association
for reimbursement of teachers within the district who were
employed during the 1985-86 school year. The Association was
instructed to place the money with a financial institution
pending approval from the Secretary of a proposed payment to the
The Board appealed the Secretary's order to the district court.
The district court ruled the controversy was moot because
contracts were entered for the two years following the year in
question. In addition, eighteen teachers signed unilateral
contracts for the year in question, and the two remaining
teachers chose not to pursue legal action within the six-month
statutory period. In unpublished opinion No. 62,414, filed
January 20, 1989, this court
reversed and remanded the case for a determination of whether the
Board complied with K.S.A. 72-5429, which provides that all costs
for mediation and factfinding shall be borne equally by the Board
and the Association.
On remand, the district court made the following conclusions of
"1. The Association did have standing to file a
prohibited practice complaint with the Secretary
after negotiations with the Board ended and
unilateral contracts were issued.
"2. When issuing unilateral contracts under K.S.A.
72-5428(f), the Board is free to include terms which
were neither noticed for negotiation nor negotiated.
"3. It is not a prohibited practice for the Board
to offer less unilaterally than was bargained for
"4. The Board did not commit a prohibited practice
when it did not make the unilateral salary increase
"5. The Secretary did have the authority to order
the Board to pay $7,700 to the Association as a
remedy for violating K.S.A. 72-5429.
"6. The relief granting authority given the
Secretary under K.S.A. 72-5430a(b) is not violative
of the Kansas Constitution."
1. The cross-appeal.
The Association cross-appeals, arguing that the Board committed
a prohibited practice pursuant to K.S.A. 72-5430(b)(1) and (5) by
not making the compensation package in the 1985-86 unilateral
contract retroactive. The statute provides:
"(b) It shall be a prohibited practice for a board
of education or its designated representative
(1) Interfere with, restrain or coerce professional
employees in the exercise of rights granted in K.S.A.
. . .
(5) refuse to negotiate in good faith with
representatives of recognized professional employees'
organizations as required in K.S.A. 72-5423 and
K.S.A. 72-5414 provides professional employees with the right to
form employees' organizations and to participate in professional
negotiations with a board of education for the purpose of
establishing, maintaining, protecting, or improving the terms of
professional service. Here, the unilateral contract was issued by
the Board to the teachers after the negotiation process was
completed as required by K.S.A. 72-5428a. Because the issuance of
the contract occurred after the negotiations process was
the issuance of the contract did not restrain or coerce the
Association during the time the Association was negotiating with
The Association argues the Board violated K.S.A. 72-5430(b)(5)
by failing to notice for negotiation or negotiate the issue of
the retroactivity of the wage increase. K.S.A. 1989 Supp.
72-5423(a) provides that both the Board and Association must
provide notices to negotiate on new terms or to amend an existing
contract on or before February 1. In Riley County Education
Ass'n v. U.S.D. No. 378, 225 Kan. 385
, 592 P.2d 87 (1979), the
school district, after unsuccessful negotiations, issued
unilateral contracts to the teachers containing a new item which
had not been noticed for negotiation in accordance with
72-5423(a). The teachers argued that to allow U.S.D. No. 378 to
include unnegotiated new items in unilateral contract offers
would reduce the collective negotiations law to a nullity. In
holding that a board can place a new provision in a unilateral
contract, the court said:
"We have carefully reviewed the Collective
Negotiations Law and find nothing therein that would
preclude the Board from placing a new provision in
the unilateral contract. As previously stated,
professional negotiations are defined in K.S.A. 1976
Supp. 72-5413(g) as `meeting, conferring, consulting
and discussing in a good faith effort by both parties
to reach agreement with respect to the terms and
conditions of professional service.' We hold that
after good faith professional negotiations, pursuant
to the Collective Negotiations Law applicable in
June, 1977 (K.S.A. 1976 Supp. 72-5413 et seq.),
terminated unsuccessfully, the Board could issue
unilateral contracts for the next school year
containing an item not noticed for ...