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U.S.D. No. 279 v. SECY

March 16, 1990.

UNIFIED SCHOOL DISTRICT No. 279, JEWELL COUNTY, KANSAS, Appellant/Cross-appellee,
v.
SECRETARY OF THE KANSAS DEPARTMENT OF HUMAN RESOURCES, Appellee, and THE JEWELL-RANDALL EDUCATION ASSOCIATION, Appellee/Cross-appellant.



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

[14 Kan. App. 2d 250]

      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 unilateral contracts.

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 following relief:

[14 Kan. App. 2d 251]

     

 
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 school year.
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 the Association.
  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 subsequent negotiations.
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 individual teachers.

  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

[14 Kan. App. 2d 252]

      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 law.

 
"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 collectively.
"4. The Board did not commit a prohibited practice when it did not make the unilateral salary increase retroactive.
"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 willfully to:
(1) Interfere with, restrain or coerce professional employees in the exercise of rights granted in K.S.A. 72-5414;
. . .
(5) refuse to negotiate in good faith with representatives of recognized professional employees' organizations as required in K.S.A. 72-5423 and amendments thereto."
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 complete,

[14 Kan. App. 2d 253]

      the issuance of the contract did not restrain or coerce the Association during the time the Association was negotiating with the Board.

  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 ...

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