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City-County Building
300 West Ash Street MEMORANDUM 89-22
PO. Box 736
Seine. KS 67402-0736
TO: City Commission
FROM: Dennis M. Kissinger, City Manager
DATE: December 4, 1989
SUBJECT: Public Employer-Employee Relations (PEER) Act:
City Manager's-Report
The City Commission has previously directed me to study
and seek out relevant information regarding the PEER Act, and
to report back to you with information, options and a
recommendation regarding this matter. Through this memorandum,
I will attempt to do so in a summary form.
Statewide Background
After several years of legislative efforts and judicial
decisions, the Kansas Legislature in 1971 enacted the PEER
Act. The Act, which excluded public school teachers (covered
by another law) , became effective on March 1, 1972. An
important provision of the PEER Act is that coverage at the
local level is strictly optional for the local governing body,
in keeping with Kansas "home rule" philosophy for local
government. Local governments and agencies are not covered
under the PEER Act, unless they make the affirmative decision
to be covered.
In Kansas, there are well over 1,000 municipalities,
school districts and other public agencies which could choose
- to be under the Act. After 17 years, only 27 units of local
government in Kansas have chosen to come under the PEER Act
(fifteen cities, nine counties and three school districts) . Of
those local governments, some are actively involved with
Salina several unions as bargaining units, some with one or two
unions, and some with no public employee unions currently.
All:AMERICA CITY
111111 Statewide, some local governments function effectively
under the PEER Act, in terms of employee relations and
municipal service provision. Conversely, the vast majority of
1989 local overnments, whose
9 governing bodies have chosen not to
come under the PEER Act, also function effectively in carrying
CITY COMMISSION
JOSEPH A.WARNER.MAYOR
CAROL E.BEGGS
JOHN DIVINE -
ROBERT E.FRANK
STEPHEN C.RYAN
CITY MANAGER
DENNIS M.KISSINGER
(9131 823-2277 MEMBER.. .LEAGUE OF KANSAS MUNICIPALITIES • NATIONAL LEAGUE OF CITIES
Memorandum 89-22
Page 2
out their responsibilities. The decisions to come under the PEER Act or
not to come under the Act were made appropriately according to the local
needs and conditions of each local government at the time. Some cities had
experienced serious labor strife (e.g. police strike in Kansas City,
Kansas) which precipitated their coming under the PEER Act; others chose to
come under the Act, due to significant employee organization and interest
in collective bargaining. The vast majority of local governing bodies have
elected not to be covered by the PEER Act, apparently because they sense no
substantial interest among their employees for unionization, or they
believe alternate means of establishing and maintaining good employee
relations are available and in the best public interest. Contrary to the
opinion expressed by union attorney Brad Avery to the City Commission, it
does not appear to be a fair characterization of 1,000 Kansas local
governing bodies to say that they failed to adopt the PEER Act because
governing body members "don't understand it" or "don't care to deal with
their employees' interests. "
Local Background
In February 1974, acting upon a request from the International
Association of Firefighters, the Salina City Commission voted not to come
under the PEER Act. A year later, the Commission refused to reconsider
their action. Since that time, the issue has been brought up from time to
time, but has never reached the formal consideration stage. Presumably, no
previous elected officials on the City Commission since 1974 have favored
coming under the PEER Act enough to introduce a resolution to that effect.
They have apparently been of the opinion that such action was neither
necessary nor in the public interest.
Since early 1987, the issue of the City of Salina coming under the
PEER Act has been brought up from time to time, primarily near City
elections. The Kansas Association of Public Employees (KAPE) has taken a
more active and visible role in encouraging the City to come under the PEER
Act. Twice in the past year, KAPE union officials from Topeka have
appeared before the City Commission asking for consideration of a
Resolution to have the City come under the PEER Act. At at least one of
the meetings, a City employee, apparently the KAPE City chapter
president, spoke to the Commission, encouraging passage of a PEER Act
Resolution. This employee claimed to represent the views of a majority of
City employees (with no verification of that claim) .
As City Manager, I believe it appropriate for the City Commission to
address this issue formally in 1989 or early 1990, after considering
options and implications.
Options for the Commission
Option 1: Vote to come under the PEER Act.
Memorandum 89-22
Page 3
The Commission could ask that a simple Resolution be prepared,
regarding whether to place the City of Salina under the PEER Act. If
approved, the first significant decision becomes unit determination.
Unit determination concerns which employees may be members of the employee
union as a bargaining representative. All public employees, with the
exception of supervisory, confidential and management personnel, are
potentially eligible to participate in an employee bargaining unit.
However, Kansas law prohibits mixing all employees into one organization.
Uniformed police, fire and professional personnel must each have a separate
organization. If the City of Salina were fully organized, a total of three
or four employee bargaining units could be expected. It is not unlikely
that disputes could arise during the unit determination process,
particularly as it relates to determining who is a supervisor.
Once a unit determination is made, a petition must be presented to
Public Employee Relations Board (PERE) requesting representation and the
scheduling of a representation election. Kansas law requires that at least
30% of the potentially eligible members of a particular bargaining unit
sign such a petition. When a valid petition is received, PERB conducts a
secret-ballot election. The ballot lists the names of each union
organization, and a choice of "no representation." To be certified as the
representative, a union must receive a majority of the ballots cast.
Beyond this, the union/employer relationship, bargaining, agreement,
fact-finding, mediation, etc. , are handled in accordance with state law and
regulation. Having worked as City Manager in a formal union/management
system in an Ohio City, I am confident we could meet our legal and
management responsibilities under this system, if it is the choice of the
governing body.
Option 2: Vote to remain out of the PEER Act coverage.
The Commission could dcline to enact a PEER Act Resolution, and thus
remain under its own employee relations provisions. Employees could still
be members of associations or unions, but those groups would continue to
have no special status in employer/employee matters and would not
officially represent City employees.
At that point, the Commission could simply instruct the City Manager
to continue the current course of employee relations and policies,
recommending or making such changes as may be advisable from time to time.
Obviously, good employee relations requires flexibility and occasional
policy and administration adjustments to be effective. Such adjustments,
both small and significant, have been made in recent years, and could be
expected to continue.
As an alternative, the Commission could decline to come under the
PEER Act but, at the same time, direct the City Manager to work with
employees at all levels to develop specific local alternatives to improve
communication, pursue joint problem-solving and refine our organizational
ability to address issues of concern to all employees. Such an alternative
Memorandum 89-22
Page 4
program might include an employee council, internal working task forces,
employee surveying or other appropriate employee involvement models.
Specific objectives of the new programs and organizational efforts would be
to enhance the connecting links in "getting the message across" from the
bottom up, top down and laterally within the whole City organization.
City Manager's Comments on Options
The decision on whether to adopt a PEER Act Resolution is clearly a
policy decision for the Commission. However, it is part of the City
Manager's job responsibility to make policy recommendations to you. In
making these comments and, ultimately, a recommendation for your
consideration, I am using my observations of and contacts within our City
organization, my training and experience, research on Kansas laws,
regulations, court cases, etc. , and my contacts with managers and
administrators of other Kansas cities and other local governments. As
always, the "bottom line" should be based on the public interest and our
service responsibilities, which are consistent with the necessity of good
employee relations. I am proud of the progress we have made in employee
relations in the past two years, but realize we have more to do, as most
public agencies, private businesses and industries are recognizing.
Collective bargaining is by its very nature an adversary proceeding.
A choice to come under the PEER Act and establish formal collective
bargaining procedures may be most appropriate when that adversary position
between the employer and employee already clearly exists. In my opinion,
that adversary position does not presently exist in the City organization.
I have no desire to be purposely placed in an adversary position with our
employees, when I realize that all our success in serving the public
properly depends greatly on a cooperative, unified organization. If there
were tremendous negative or adversary feelings among City employees, I
believe it would be evident in a variety of ways. Our employee turnover
figures do not reflect dissatisfaction, nor do our numbers or types of
employee grievances filed. While a KAPE representative has claimed to
represent the opinion of a majority of City employees, we have as yet seen
no evidence that this is indeed the case.
Of course, I do not believe that all our employees are totally and
completely satisfied with all aspects of their jobs. I do believe the
majority of our employees are satisfied with the City as an employer, but
have some legitimate ideas, concerns and a desire to have more input into
the matters which will affect them. The 1990s will bring significant
issues which will affect all City employees: health and wellness,
increased safety consciousness, drug and alcohol policies, training plans,
health insurance cost increases and employee issues brought about by
increasingly tight municipal budgets. These issues cross-cut departments
and employee levels. In my opinion, they can best be addressed, not by an
old-style authoritarian employer, nor by a divisive union/management
environment, but by a collective approach in a productive problem-solving
system.
Memorandum 89-22
Page 5
If our objectives are to enhance employer/employee relations and
communication (both ways) , it would seem that inserting a new level of
bureaucracy, laws, regulations, etc. would prove counterproductive. In my
experience and contacts with others, the employer and the employee end up
communicating with attorneys and professional negotiators, not with each
other.
As I stated previously, in some circumstances in a community or
organization, it may be appropriate and advisable to come under. the PEER
Act and establish formal union/management collective bargaining. In some
cases, the benefits might outweigh the significant costs involved. Perhaps
some day in the future that may be true for the City of Salina. I do not
believe we have reached that point.
Recommendation
As City Manager, my policy recommendation to you would be to remain
outside the PEER Act, along with the one thousand or so other units of
local government who have made that decision. At the same time, I believe
we should recognize that our City organization is, at this point, not well
positioned for addressing the issues of the 1990s. Too often, our
. employee/employer messages become garbled. I believe we can establish
effective methods, along with our employees, to make improvements to our
system. I would like the opportunity to try.
Neither establishing a collective bargaining system nor using other
good alternatives is going to be a panacea to all employee relations
problems. With a very diverse organization of some 375 employees, issues
and problems will arise from time to time. How we address those issues is
critical. I genuinely believe our employees, as employees elsewhere, are
willing to search for newer, more effective employer/employee relations
methods, rather than relying on potentially divisive methods of the past.
Suggested Timetable
Monday December 11, 1989 - Commission Study Session (prior to regular
meeting), Commission question and answer, briefing and discussion
with City Manager regarding PEER memorandum. (Public hearing and
comment period to be scheduled for future formal Commission meeting,
but written comments from interested parties encouraged) .
Monday January 8, 1990 - Commission consideration of PEER Act Resolution.
LOCAL GOVERNMENTS UNDER THE PEERA
No. of Cities No. of Counties
Burlington Ellis
Chanute Norton
Coffeyville *Phillips
Derby Reno
,Ellis Russell
Hays Saline
Hutchinson Sedgwick
Junction City Shawnee
Kansas City Wyandotte
McPherson
Manhattan School Districts
Osawatomie Wichita
*Russell Hays
Topeka Salina
Wichita
*Units in these areas have been decertified.
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KANSAS
n, ASSOCIATION OF
PUBLIC EMPLOYEES
March 24 , 1989
Mayor Sydney Soderberg
Salina City County Building
Salina , Kansas 67401
Dear Mayor Soderberg and members of the Salina City Commission:
A number of your employees , who are also members of the
Kansas Association of Public Employees , have contacted us
regarding potential representation of them during their employment
relationship with the City of Salina.
Pursuant to their request , we have contacted or attempted to
contact each member of the commission. Our goal is to explain the
provisions of the Kansas Public Employer Employee Act , the adoption
of which would be necessary for our organization to provide
representation. To enhance your understanding of this law,
attached is an outline explaining the provisions that are the most
relevant to direct interaction between employer and employee .
The act provides several advantages for both employer and employee ,
the most notable of which is a legal framework for working-out problems
that inevitably arise between them. The rights of both parties are
balanced within the act ; neither has the power to dictate a 'particular
result to the other . In the event of impasse during negotiations
or dispute over the actions of either party, the law provides for the
intervention of the Public Employee Relations Board, absent an agreement
by the parties for an alternative method of resolving the conflict .
In addition, any agreement reached between the City of Salina
and its employees must ultimately be approved by the commission.
The act has the strong endorsement of the League of Municipalities .
Executive Director Ernie Mosher, speaking on behalf of the bill which
gave rise to the act , said, "In summary, ( this) is a good bill. It
reasonably balances both the employer and employee interests Perhaps
most important , we think it preserves and protects the public interest
which is the only reason why government exists . " Ks . Bd. of Regents
vs . Pittsburg State--KNEA 233 Kan. 801 , 839 ( 1983) .
400 West 8th Ave. Suite #103 Topeka. Kansas 66603 913-235-0262
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Mayor Soderberg
Page two
For you as city commissioners , adoption of this law also offers
the opportunity to provide equitable representation to a portion of
your constituency, City of Salina employees . It is unfortunate that
some elected officials mistakenly believe that the best interests of
their state , county or city relative to personnel policies are representec
only by the policies espoused by the professionals charged with managing
government . This posture leaves employees most impacted by those policies
without an effective voice of their own choosing and at times subject
to undeserved breaches of good faith by management .
This law is not designed, however , to allow interference in the
everyday management functions of government . Public employer rights
such as the prerogative to direct the work of its employees and maintain
the efficiency of government cannot be preempted . In addition, strikes
and related job actions are defined as "prohibited practices . "
We do seek to provide effective representation in those areas
specified by law as proper subjects of negotiations . These include
topics designated by statute such as wages , grievance procedures and
benefits , and potentially others that have been found legally acceptable
by the Kansas Supreme Court , i . e . those significantly related to an
express condition of employment and which do not unduly interfere with
management rights reserved to the employer by law.
We look forward to working with you. If you have any questions
regarding this presentation , please do not hesitate to contact us .
Thank you for your cooperation.
Yours truly,
Vickie Chaffee
KAPE Representative
}
SUMMARY OF THE KANSAS PUBLIC EMPLOYER EMPLOYEE ACT
I. Purpose, obligation and rights
A) Coverage of city and county governmental bodies by the act
is optional under K.S.A. 75-4321 (c) .
B) The purpose of the act is to obligate public agencies,
employees and their representatives to enter into discussion with
affirmative willingness to resolve grievances and disputes
relating to conditions of employment, acting within the framework
of law. K.S.A. 75-4321b) .
C) The employer has the obligation to extend to a properly
recognized employee organization the right to represent the
employees of the designated bargaining unit in the settlement of
grievances and in meet and confer proceedings. K.S.A. 75-4328.
0) The employee is under no obligation to join the
employee organization representing them. K.S.A. 75-4324.
E) Topics of mandatory negotiation and subsequent
inclusion in a memorandum agreement include all matters relating
to conditions of employment R.S.A. 75-4330. A list of what
constitutes "matters relating to conditions of employment"
is designated in R.S.A. 75-4322(t). For matters not on the list,
the Public Employee Relations Board, which administers the act,
relies on a "balancing test" to determine whether the topic is
mandatorily negotiable. The test is whether the item is significantly
related to an express condition of employment, and if
negotiating the term will not unduly interfere with management
rights• reserved to the employer by law. Kansas Bd. of Regents v.
(2)
Pittsburg State University NEA, 233 Kan. 801 (1983)
F) Topics which cannot be negotiated include those which
affect the public employer's rights. R.S.A. 75-4330. The
employer 's rights include the discretion to:
1) Direct the work of employees
2) Hire, promote, demote, transfer, and assign employees
3) Suspend or fire employees for proper cause.
4) Relieve employees because of lack of work or other legitimate
reasons.
5) Take actions necessary to carry out the mission of the agency
in emergencies.
6) Determine the methods, means and personnel by which
operations are to be conducted. R.S.A. 75-4327.
II. Impasse
A) If an impasse in bargaining exists, absent an agreement
by the parties, the procedure is governed by R.S.A. 75-4332. It
requires:
1) A finding by PERK that an impasse exists.
2) The appointment of a mediator.
3) If the impasse persists seven days after the appointment of
the mediator, PERS appoints a fact-finding board which, 21 days
after appointment, is obligated to serve its findings on the employer
and employee organization.
4) If the parties have not resolved the impasse by the end of
a forty-day period following the appointment of the fact-finder,
(3)
the representative of the public employer is required to submit
the findings of fact and recommendations of the fact-finding
board to the governing body of the city, county or school board
involved. They are then obligated to reach a decision based on
what it deems to be the public interest, which includes the
interest of the employees involved.
2) The cost of the mediator and fact-finder is picked-up by
the state. R.S.A. 75-4332 (e) .
III. Prohibited Practices. R.S.A. 75-4333
A. Employee organizations or employees
1. Interference with, restraint or coercion of public employees in
their exercise of rights to form, join or refuse to join employee
organizations.
2. Interference with management rights under R.S.A. 75-4326,
(see I (F) ) or with respect to selecting a representative for
the ,purposes of meeting and conferring or the adjustment of grievances.
3. Refusal to meet and confer with public employer.
4. Deliberately and intentionally avoid mediation and fact-
finding.
5. Engage in a strike.
B. Public Employer
1. Interference, restraint or coercion of public employees in the
exercise of rights to form, join and participate in the
activities of employee organizations of their own choosing.
2. Domination, interference or assistance in the formation,
t ..,
(4)
existence, or administration of any employee organization.
3. Encouraging or discouraging membership in any employee
organization, committee, association or representation plan by
discrimination in hiring, tenure or other conditions of
employment or by blacklisting.
4. Termination of or discrimination against an employee
because he or she has filed any affidavit, petition or complaint
or given any information or testimony under this act or because
he or she has formed, joined or chosen to be represented by any
employee organization.
5. Refusal to meet an confer in good faith with
representatives of recognized employee organizations.
6. Denial of rights to an employee organizations to meet and
confer and grievance proceedings and the exclusive right of
representation for one year.
7. Deliberate and intentional avoidance of mediation, fact-
finding and arbitration duties.
8. An attempt or the institution of a lockout.
75.4321 STATE DEPARTMENTS; PUBLIC OFFICERS, EMPLOYEES '
PUBLIC EMPLOYER-EMPLOYEE RELATIONS be represented by such organizations in
75.4321. Declaration of policy and ob- their employment relations and dealings
jectives; election by public employer to be with public agencies.
bound by act; termination. (a) The legisla- (c) The governing body of any public
titre hereby finds and declares that: employer, other than the state and its agen-
(1) The people of this state have a fun- cies, by a majority vote of all the members
damental interest in the development of may elect to bring such public employer
harmonious and cooperative relationships under the provisions of this act, and upon
between government and its employees; such election the public employer and its
(2) the denial by some public employers employees shall be bound by its provisions
of the right of public employees to organize from the date of such election. Once an
and the refusal by some to accept the prin- election has been made to bring the public
ciple and procedure of full communication employer under the provisions of this act it
between public employers and public em- continues in effect unless rescinded by a
ployee organizations can lead to various majority vote of all members of the govern-
forms of strife and unrest; ing body. No vote to rescind shall take effect
(3) the state has a basic obligation to until the termination of the next complete
protect the public by assuring, at all times, budget year following such vote.
the orderly and uninterrupted operations History: L. 1971, ch. 264, § 1; March 1,
and functions of government; 1972. -
(4) there neither is, nor can be, an anal- Law Review and Bar Journal References:
ogy of statuses between public employees "The New Kansas Public Employer-Employee
and private employees, in fact or law, be- Law," W. Stanley Churchill, 91 J.B.A.K. 13 (1972).
cause of inherent differences in the em- Collective Negotiations Act, 18 W.L.J. 11, 12(1978).
"The Kansas Public Employer-Employee Relations
ployment relationship arising out of the Law," Raymond Goetz, 28 K.L.R. 243, 246 (1980).
unique fact that the public employer was "Labor Law—Mandatory Subjects of Bargaining
established by and is run for the benefit of Under the Kansas Public Employer-Employee Rela-
all the people and its authority derives not tions Act—Kansas Board of Regents v.Pittsburg State
University Chapter of Kansas-National Education As-
from contract nor the profit motive inherent sociation, Diana Dietrich, 32 K.L.R. 697 (1984).
in the principle of free private enterprise, CASE ANNOTATIONS
but from the constitution, statutes, civil ser- 1. Act discussed in determining school board re-
vice rules, regulations and resolutions; and gnired to negotiate with previously recognized repre-
(5) the difference between public and sentative under 72-5913 et seq. Liberal NEA v. Board
private employment is further reflected in of Education, 211 K. 219. 225, 228,505 P.2d 651.
the constraints that bar any abdication or 2. District court order setting aside board's order
bargaining away by public employers of substantively arbitrary and capricious. Coggins v.
Public Emoyee Relations Board, 2 K.A.2d 416. 921,
their continuing legislative discretion and 581 P.2d 81pl7.
in the fact that constitutional provisions as 3. Cited in determining that employees'due process
to contract,property,and due process do not rights can be waived by memorandum of agreement if
apply to the public employer and employee the agreement provides for protection and enforcement
of employees' rights. Gorham v. City of Kansas City,
relationship. 225 K. 369. 370, 376. 590 P.2d 1051.
(b) Subject to the provisions of subsec- 4. Act cited in upholding the limited scope of district
tion (c), it is the purpose of this act to obli- court review provided for in 75-9334. Behrmann v.
gate public agencies, public employees and Public Employee Relations Board,225 K.435,437,591
P.2d 173.
their representatives to enter into discus- 5. Purpose of act considered; parties required to
lions with affirmative willingness to resolve meet, and to confer and negotiate in good faith, with
grievances and disputes relating to condi- affirmative willingness to resolve differences and
tions of employment, acting within the reach agreement. Kansas Bd. of Regents v. Pittsburg
State Univ.Chap. of K-NEA, 233 K.801,667 P.2d 306
framework of law. It is also the purpose of (1983)
this act to promote the improvement of em-
ployer-employee relations within the 75-4322. Definitions. As used in this
various public agencies of the state and its act:
political subdivisions by providing a uni- (a) "Public employee" means any per-
form basis for recognizing the right of pub- son employed by any public agency, except
lie employees to join organizations of their those persons classed as supervisory em-
own choice, or to refrain from joining, and ployees, professional employees of school
276
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PUBLIC OFFICERS AND EMPLOYEES 75.4322
districts, as defined by subsection (c) of (f) "Public agency" or "public em-
K.S.A. 72-5413, elected and management ployer" means every governmental subdi-
officials, and confidential employees. vision, including any county, township,
(b) "Supervisory employee" means any city, school district, special district, board,
individual who normally performs different commission, or instrumentality or other
work from his subordinates, having author- similar unit whose governing body exer-
ity, in the interest of the employer, to hire, cites similar governmental powers, and the
transfer, suspend, lay off, recall, promote, state of Kansas and its state agencies.
discharge, assign, reward, or discipline (g) "Governing body' means the legis-
other employees, or responsibly to direct lative body, policy board or other authority
them, or to adjust their grievances, or effec- of the public employer possessing legisla-
tively to recommend a preponderance of tive or policymaking responsibilities pursu-
such actions, if in connection with the fore- ant to the constitution or laws of this state.
going the exercise of such authority is not of (h) "Representative of the public
a merely routine or clerical nature, but re- agency"means the chief executive officer of
quires the use of independent judgment. A the public employer or his or her designee,
memorandum of agreement may provide for except when the governing body provides
a definition of"supervisory employees" as otherwise, and except in the case of the
an alternative to the definition herein. state of Kansas and its state agencies. Such
(c) "Confidential employee" means any chief executive shall be for counties, the
employee whose unrestricted access to chairman of the board of county commis-
confidential personnel files or other infor- sioners; for cities, the mayor, city manager
.mation concerning the administrative or city superintendent; for school districts,
operations of a public agency, or whose the president of the board of education; and
functional responsibilities or knowledge in for other local units, such similar elected or
connection with the issues involved in the appointed officer. In the case of the state of
• meet and confer process would make his Kansas and its state agencies, "representa-
membership in the same employee organi- tive of the public employer" means a team
zation as other employees incompatible of persons, the head of which shall be a
with his official duties. person designated by the secretary of ad-
(d) "Professional employee" includes ministration and the heads of the state
any employee: (1) Whose work is predo- agency or state agencies involved or one
minantly intellectual and varied in charac- person designated by each such state
ter as opposed to routine mental, manual, agency head.
mechanical, or physical work; involves the (i) "Employee organization" means any
consistent exercise of discretion and judg- organization which includes employees of a
ment; requires knowledge of an advanced public agency and which has as one of its
type in a field of science or learning cus- primary purposes representing such em-
tomarily acquired by prolonged study in an ployees in dealings with that public agency
institution of higher learning; or(2)who has over conditions of employment and griev-
completed courses of prolonged study as ances.
described in paragraph (1) of this subsec- (j) "Recognized employee organization"
tion,and is performing related work under means an employee organization which has
the supervision of a professional person in been formally acknowledged by the public
order to qualify as a professional employee agency or certified as representing a major-
as defined in paragraph (1) of this subsec- ity of the employees of an appropriate unit.
tion; or (3) attorneys-at-law or any other (k) "Business agent" means any autho-
person who is registered as a qualified pro- rized person who is a full-time official of an
fessional by a board of registration or other employee organization and whose principal
public body established for such purposes duties are to act or to attempt to act for an
under the laws of this state. employee organization(1) in proceedings to
(e) "Elected and management officials" meet and confer and other proceedings in-
means any elective official and any ap- volving a memorandum of agreement, (2) in
pointed officer charged by law with major servicing existing memorandums of agree-
administrative and management responsi- ment, or (3) in organizing employees into
bilities. employee organizations.
277
75.4323 STATE DEPARTMENTS; PUBLIC OFFICERS, EMPLOYEES
(I) "Board" means the public employee and usually performed by the employees for
relations board established pursuant to this the purpose of coercing the employees into
act. relinquishing rights guaranteed by this act.
(m) "Meet and confer in good faith" is (t) "Conditions of employment" means
the process whereby the representative of a salaries, wages, hours of work, vacation al-
public agency and representatives of rec- lowances, sick and injury leave, number of
ognized employee organizations have the holidays, retirement benefits, insurance
mutual obligation personally to meet and benefits, prepaid legal service benefits,
confer in order to exchange freely informa- wearing apparel,premium pay for overtime,
tion, opinions and proposals to endeavor to shift differential pay, jury duty and griev-
reach agreement on conditions of employ- ante procedures, but nothing in this act
ment. shall authorize the adjustment or change of
(n) "Memorandum of agreement" such matters which have been fixed by
means a written memorandum of under- statute or by the constitution of this state.
standing arrived at by the representatives of (u) "Grievance" means a statement of
the public agency and a recognized em- dissatisfaction by a public employee, su-
ployee organization which may be pre- pervisory employee,employee organization
sented to the governing body of a public or public employer concerning interpreta-
employer or its statutory representative and tion of a memorandum of agreement or tra-
to the membership of such organization for ditional work practice.
appropriate action. (v) "Budget submission date" means (1)
(o) "Mediation" means effort by an im- for any public employers subject to the
partial third party to assist in reconciling a budget law in K.S.A. 79-2925 et seq. the
dispute regarding conditions of employ- date of July 1, and (2) for any other public
ment between representatives of the public employer the date fixed by law. "Budget
agency and recognized employee organiza- submission date" means, in the case of the
tions through interpretation and advice. state and its state agencies, the date of Sep-
(p) "Fact-finding" means investigation tember 15.
of such a dispute by an individual, panel, or (w) "Legislature" means the legislature
board with the fact-finder submitting a re- of the state of Kansas.
port to the parties describing the issues in- (x) "State agency" means the same as is
volved; the report shall contain recommen- ascribed thereto in K.S.A. 75-3701.
dations for settlement and may be made History: L. 1971, ch. 264, § 2; L. 1972,
public. ch. 340, § 1; L. 1973, ch. 363, § 1; L. 1974,
(q) "Arbitration" means interpretation ch. 207, § 6; L. 1977, ch. 302, § 1; July 1.
of the terms of an existing or a new memo- Law Review and Bar Journal References:
random of agreement or investigation of Collective Negotiations Act, 18 W.L.J. 11, 14 (1978).
disputes by an impartial third party whose CASE ANNOTATIONS
decision may or may not be final and bind- 1. Compared with 72-5413 et seq. in action involv-
ing.Arbitration is advisory when the results ing negotiation between teachers' association and
are not binding upon the parties; it is final school board.National Education Association v. Board
and binding when both parties, of their own of Education,212 K. 741,749,751,754,512 P.2d 416.
• volition,agree to submit a dispute to,and to 2. Board of Regents is an employer; conditions of
employment construed in determining subjects which
abide by the decision of, the impartial third are mandatorily negotiable;test applied. Kansas Bd.of
party. Regents v. Pittsburg State Univ. Chap.of K-NEA, 233
(r) "Strike" means an action taken for K.801,811,814,815.816,817,818,819,667 P.2d 306
the purpose of coercing a change in the (1983)'
3. Staff doctors of state institutions are employees
conditions, rights, privileges or obligations rather than officers;no immunity from civil liabiltiy in
of employment through the failure by con- 1974 for negligent acts. Durflinger v. Artiles, 234 K.
certed action with others to report for duty 484. 505,506, 673 P.2d 86 (1983).
or to work at usual capability in the per- 4. Staff doctors of state institution not immune from
formance of the normal duties of employ- civil liability for negligent release of patient prior to
tort claims act.DurOinger v.Artiles,727 F.2d 888,911
ment. (1984).
(s) "Lockout"means action taken by the
public employer to provoke interruptions of 75-4323. Public employee relations
or prevent the continuity of work normally board; creation, membership; terms; corn-
278
PUBLIC OFFICERS AND EMPLOYEES 75.4323
pensation and expenses;powers and duties; their expenses within the amounts made
appointment of personnel or contracts for available therefor by the legislature.
performance of functions; rules and regula- (d) In addition to the authority provided
tions.(a)There is hereby created the public in other sections, the board may:
employee relations board, which shall con- (1) Establish procedures for the preven-
sist of five members appointed by the gov- tion of improper public employer and em-
ernor, subject to confirmation by the senate ployee organization practices as provided in
as provided in K.S.A. 75-4315b. One K.S.A. 75-4333, except that the board shall
member shall be representative of public provide only for the entering of an order
employers; one member shall be represent- directing the public agency or employee
ative of public employees; and three mem- organization to meet and confer in good
bers shall be representative of the public at faith in the case of a claimed violation of
large and hold no other public office or subsection (b)(5) or (c)(3) of that section.
public employment. Of the three members The pendency of proceedings under this
representing the public, one shall be se- paragraph shall not be used as the basis to
lected by the board as chairperson thereof. delay or interfere with determination of
Not more than three members of the board representation status pursuant to K.S.A. 75-
shall be members of the same political 4327 or with meeting and conferring.
party. Each member shall be appointed for a (2) Hold such hearings and make such
term of four years. The governor shall ap- inquiries as it considers necessary to carry
point qualified successors to fill vacancies out properly its functions and powers. For
occurring by reason of the expiration of the the purpose of such hearings and inquiries,
terms. In case of any other vacancy on the the board may administer oaths and affir-
board, the governor shall appoint a quali- mations, examine witnesses and docu-
fled successor for the unexpired term. ments,take testimony and receive evidence
(b) Members of the public employee re- and compel attendance of witnesses and the
• lations board attending meetings of the Production of documents by the issuance of
board,or attending a subcommittee meeting subpoenas.n .o any of member of the board or to
thereof authorized by the board, shall be g any
paid compensation,subsistence allowances, any person appointed by the secretary of
mileage and other expenses as provided in human resources to perform the functions of
K.S.A. 75-3223 'and amendments thereto. the board. The subpoenas shall be regu-
The secretary of human resources shall lated and enforced in the same manner as
provide office space and such clerical and Provided for the secretary of human re-
other staff assistance as necessary to assist sources under the provisions of K.S.A. 44-
the board in carrying out the provisions of 611 n
this act. (3) Make, amend and rescind such rules
(c) The secretary of human resources and regulations, and exercise such other
may establish, after consulting with repre- powers, as appropriate to effectuate the
sentatives of employee organizations and of purposes and provisions of this act
public agencies, panels of qualified per- (e) The board shall intervene in the
sons, broadly representative of the public, public employer-public employee relations
to be available to serve as mediators, arbi- of political subdivisions to the minimum
trators or members of fact-finding boards extent possible to secure the objectives ex-
and may appoint or may contract with such pressed in K.S.A. 754321.
persons as necessary for the performance of History: L. 1971, ch. 264, §3; L. 1973,
the board's functions, including but not ch. 363, § 2; L. 1974, ch. 348, § 95; L. 1976,
limited to mediators, members of fact-find- ch.370, § 100; L. 1982, ch. 347, § 58;July 1.
ing boards and representatives of employee Revisor's Note:
organizations and public employers to serve The public employee relations board was attached to
as technical advisors to fact-finding boards. and made a part of the department of human resources
in 1976, d certain powers,duties and functions of the
Such persons shall perform the duties and board were an transferred to the secretary of human re-
exercise the powers prescribed by the sec- sources, see ch. 75, art. 57. (L. 1976, ch. 354.)
retary,by the board or by law.The secretary Law Review and Bar Journal References:
shall fix the compensation of such persons The Kansas Public Employer-Employee Relations
and shall provide for reimbursement of Law," Raymond Goetz,28 K.L.R. 243 (1980).
279
•
75.4324 STATE DEPARTMENTS; PUBLIC OFFICERS, EMPLOYEES
CASE ANNOTATIONS (e) Relieve employees from duties be-
t. In apprising itself of evidence. board not pre- cause of lack of work or for other legitimate
eluded from obtaining aid of assistants:duties of hoard. reasons;
Goggins v. Public Employee Relations Board.2 K.A.2d
416, 421, 422, 581 P.2d 817. (f) Take actions as may be necessary to
2. Three of the five members of public employee carry out the mission of the agency in
relations board may lawfully conduct business of emergencies; and
board.Coggins v. Public Employee Relations Board,2
K.A.2d 416, 421, 581 P.2d 817. (g) Determine the methods, means and
3. Powers of hoard considered; judicial review of personnel by which operations are to be
actions of board. Kansas lid. of Regents v. Pittsburg carried on.
State Univ. Chap.of K.NEA.233 K.801.815.818,667 History: L. 1971, ch. 264, § 6; March 1,
P2d 306 (1983). 1972.
75-4324. Employees' right to form, CASE ANNOTATIONS
join and participate in employee organiza- 1. Rights of employer considered in construing con-
tions.Public employees shall have the right rbtlons of employment which are mandatorily negoti-
able; test applied. Kansas Bd. of Regents v. Pittsburg
to form,join and participate in the activities State Univ.Chap.of K-NEA,233 K.801,814,815,826,
of employee organizations of their own 667 P.3d 306(1983).
choosing, for the purpose of meeting and 75.4327. Public employee organiza-
conferring with public employers or their
designated representatives with respect to bons; recognition and certification; mem-
grievances and conditions of employment. bership; meet and confer; determination
Public employees also shall have the right and certification of appropriate unit; rules
to refuse to join or participate in the activi- and regulations. (a) Public employers shall
ties of employee organizations. recognize employee organizations for the
History: L. 1971, ch. 264, § 4; March 1, purpose of representing their members in
1972. relations with public agencies as to griev-
ances and conditions of employment. Em-
CASE ANNOTATIONS ployee organizations may establish reason-
I. Prohibited practice charged under 75-4fl3(c)(1) able provisions for an individual's
in contest of representation election;misconduct found
not to have substantially interfered with election. Kan- admission to or dismissal from membership.
sas Assn of Public Employees v. Public Service Em- (b) Where an employee organization has
ployees Union, 218 K. 509, 510, 544 P.2d 1389. been certified by the board as representing
75.4325- Supervisory employee not a majority of the employees in an appro-
prohibited from membership in employee priate unit, or recognized formally by the
organization. Nothing herein shall prohibit public employer pursuant to the provisions
any individual employed as a supervisory of this act, the appropriate employer shall
employee from becoming or remaining a meet and confer in good faith with such
member of an employee organization, but employee organization in the determination
no public employer subject to this act shall of conditions of employment of the public
be compelled to deem individuals defined employees as provided in this act, and may
herein as supervisory employees as public enter into a memorandum of agreement
employees for the purposes of this act. with such recognized employee organiza-
History: L. 1971, ch. 264, § 5; March 1, tion.
1972. (c) A recognized employee organization
shall represent not less than a majority of
75-4326. Existing rights of public em- the employees of an appropriate unit When
ployer not affected. Nothing in this act is a question concerning the designation of an
intended to circumscribe or modify the ex- appropriate unit is raised by a public
isting right of a public employer to: agency,employee organization or by five or
(a) Direct the work of its employees; more employees, the public employee rela-
(b) Hire, promote, demote, transfer, as- tions board, at the request of any of the
sign and retain employees in -positions parties, shall investigate such question and,
within the public agency; after a hearing, rule on the definition of the
(c) Suspend or discharge employees for appropriate unit in accordance with sub-
proper cause; section (e) of this section.
(d) Maintain the. efficiency of govern- (d) Following determination of the ap-
mental operation; propriate unit of employees, the public em-
280
•
PUBLIC OFFICERS AND EMPLOYEES 75.4327
ployee relations board,at the request of the ognized representative in an appropriate
public employer or on petition of employ- unit, it shall not be required to consider the
ees, shall investigate questions and certify matter again for a period of one year, unless
to the parties in writing, the names of the the board determines that sufficient reason
representatives that have been designated exists. The board may promulgate such
for an appropriate unit. The filing of a peti- rules and regulations as may be appropriate
tion for the investigation or certification of a to carry out the provisions of subsections (c)
representative of employees shall show the and (d) of this section.
names of not less than 30% of the employ- (e) Any group of public employees con-
ees within an appropriate unit. In any such sidering the formation of an employee or-
investigation, the board may provide for an ganization for formal recognition, any pub-
appropriate hearing, shall determine voting lie employer considering the recognition of
eligibility and shall take a secret ballot of an employee organization on its own voli-
employees in the appropriate unit involved tion and the board, in investigating ques-
to ascertain such representatives for the tions at the request of the parties as speci-
purpose of formal recognition. Recognition lied in this section, shall take into
shall be granted only to an employee orga- consideration, along with other relevant
nization that has been selected as a repre- factors: (1) The principle of efficient ad-
sentative of an appropriate unit, in a secret ministration of government; (2) the exis-
ballot election, by a majority of the employ- tence of a community of interest among
ees in an appropriate unit who voted at such employees; (3) The history and extent of
election. Each employee eligible to vote employee organization; (4) geographical lo-
shall be provided the opportunity to choose cation; (5) the effects of overfragmentation
the employee organization such employee and the splintering of a work organization;
wishes to represent such employee, from (6) the provisions of K.S.A. 75-4325; and (7)
among those on the ballot, or to choose "no the recommendations of the parties in-
representation."When an election in which volved.
the ballot provided for three or more (f) A recognized employee organization
choices between representatives and no shall not include: (1) Both professional and
representation resulted in no choice receiv- other employees, unless a majority of the
ing a majority of the valid votes cast, the professional employees vote for inclusion in
board shall conduct a run-off election by the organization; (2) uniform police em-
secret ballot.The ballot in a run-off election ployees and public property security guards
shall only provide for a selection between with any other public employees, but such
the two choices receiving the largest and employees may form their own separate
second largest number of votes in the origi- homogenous units; or (3) uniformed fire-
nal election.The board is authorized to hold men with any other public employees, but
elections to determine whether: (1) An em- such employees may form their own sepa-
ployee organization should be recognized rate homogenous units. The employees of a
as the formal representative of employees in public safety department of cities which has
a unit; (2) an employee organization should both police and fire protection duties shall
replace another employee organization as be an appropriate unit.
the formal representative of employees in a (g) It is the intent of this act that em-
unit; (3) a recognized employee organiza- ployer-employee relations affecting the fi-
tion should be decertified. nances of a public employer shall be con-
Any petition calling for an election in ducted at such times as will permit any
accordance with this section shall be dis- resultant memorandum of agreement to be
missed by the board without determining duly implemented in the budget prepara-
the questions raised therein if such petition tion and adoption process. A public em-
is filed more than 150 days or less than 90 ployer, during the 60 days immediately
days prior to the expiration date of an exist- prior to its budget submission date,shall not
ing memorandum of agreement which gov- be required to recognize an employee orga-
erns the terms and conditions of employ- nization not previously recognized, nor
ment of the employees within the shall it be obligated to initiate or begin meet
appropriate unit. and confer proceedings with any rec-
If the board has certified a formally rec- ognized employee organization for a period
281
75-4328 STATE DEPARTMENTS; PUBLIC OFFICERS, EMPLOYEES
of 30 days before and 30 days after its CASE ANNOTATIONS
budget submission date. 1. Cited in determining that employees'due process
(h) No employee organization shall be rights can be waived by memorandum of agreement if
recognized unless it establishes and main- the agreement provides for protection and enforcement
of employees rights. Gorham v. City of Kansas City,
tains standards of conduct providing for: (1) 225 K. 369, 370, 376, 590 P.2d 1051.
The maintenance of democratic procedures
and practices, including periodic elections 75-4329. Disputes concerning recog-
by secret ballot and the fair and equal treat- ninon of employee organization; procedure
ment of all members; and (2) the mainte- for resolving. Every public agency, other
nance of fiscal integrity, including accurate than the state, acting through its governing
accounting and periodic financial reports body, may establish procedures, not incon-
open to all members and the prohibition of sistent with the provisions of K.S.A. 75-4327
business or financial interests by offi cers and 75-4328 and, after consultation with in-
which conflict with their fiduciary respon- terested employee organizations and em-
sibilities. ployer representatives, may resolve dis-
History: L. 1971, ch. 264, § 7; L. 1972, putes concerning the recognition status of
ch. 340, § 3; L. 1973, ch. 363, § 5; L. 1981, employee organizations composed of em-
ch. 345, § 1; July 1. ployees of such agency. In the absence of
such procedures, such disputes shall be
Law Review and Bar Journal References: submitted to the public employee relations
The Kansas Public Employer-Employee Relations board in accordance with K.S.A. 75-4327.
Law;' Raymond Goetz, 28 K.L.R. 243 (1980). History: L. 1971, ch. 264, § 9; March 1,
CASE ANNOTATIONS 1972.
1. Act discussed in determining school board re-
quired to negotiate with previously recognized repre- 75-4330. Memorandum agreements; .'
sentative under 72-5413 et seq- Liberal-NEA v. Board scope and other limitations thereon; griev
of Education, 211 K. 219, 225, 228, 505 P.2d 651. ance procedures; arbitration; appeals. (a)
2. District court order setting aside board's order P The scope of a memorandum of a reement
substantively arbitrary and capricious. Coggins v. g
• Public Employee Relations Board, 2 K.A.2d 416, 417, may extend to all matters relating to condi-
421, 581 P.2d 817. tions of employment, except proposals re-
3. Cited in determining that employees'due process lating to (1) any subject preempted by fed-
rights can be waived by memorandum of agreement if eral or state law municipal/Ordinance
the agreement provides for protection and enforcement aw or a munici P .
of employees' rights. Gorham v. City of Kansas City, passed under the p�€ isions of/section 5 of
225 K. 369, 370, 376, 590 P.2d 1051. article 12 of t eQ,Kansas constitution, (2)
4. Parties required to meet,and to confer and nego- public employ rights defined in K.S.A.
bate in good faith; employee organization entitled to 75-4324 (3)pu lic employer rights defined
input before time of budget preparation. Kansas Bd. of I
Regents v. Pittsburg State Univ.Chap. of K-NEA, 233 in K.S.A. 7514326, or (4)/the authority and
K. 801,804,806, 826, 667 P.2d 306 (1983). power q�4(y civil service commission, per-
son ehtbhard,personnel agency or its agents
75-4328. Recognition of right of em- est shed by statute, ordinance or special
ployee organization to represent employ- act tconduct and grade merit examinations
ees. (a) A public employer shall extend to a and to rate candidates in the order of their
certified or formally recognized employee relative excellence, from which appoint-
organization the right to represent the em- ments or promotions may be made to posi-
ployees of the appropriate unit involved in tions in the competitive division of the
. meet and confer proceedings and in the classified service of the public employer
settlement of grievances, and also shall ex- served by/Such civil service commission or
tend the right to unchallenged representa- personnel board. Any memorandum of
tion status, consistent with subsection (d) of agreement relating to conditions of em-
K.S.A. 75-4327, during the twelve (12) ployment entered into may be executed for
months following the date of certification or a maximum period of three (3) years, not-
formal recognition. withstanding the provisions of the cash
History: L. 1971, ch. 264, § 8; March 1, basis law as contained in K.S.A. 10-1102 et
1972. seq. and the budget law as contained in
Law Review and Bar Journal References: S.S.A. 79-2925 et seq.
"The Kansas Public Employer-Employee Relations 1 (b) Such memorandum agreement may
Law," Raymond Goetz, 28 K.L.R. 243, 273 (1980). contain a grievance procedure and may
282
PUBLIC OFFICERS AND EMPLOYEES 75.4332
provide for the impartial arbitration of any 3. Scope of agreement considered in determining •
conditions of employment which are mandatorily ne-
disputes that arise on the interpretation of gotiable; test applied. Kansas Bd. of Regents v. Pins-
the memorandum agreement. Such arbitra- berg State Univ.Chap.of K-NEA,9'i3 K.801,815,818,
tion shall be advisory or final and binding, 667 P.2d 306 (1983).
as determined by the agreement, and may
provide for the use of a fact-finding board. 75.4331. Memorandum of understand-
The public employee relations board is au- ing; financial report; consideration and ac-
thorized to establish rules for procedure of Lion; rejection. If agreement is reached by
arbitration in the event the agreement has the representatives of the public agency and
not established such rules. In the absence of the recognized employee organization, they
arbitrary and capricious rulings by the fact- jointly shall prepare a memorandum of un-
finding board during arbitration, the deci- derstanding and, within fourteen (14) days,
sion of that board shall be final. Appeals present it to the appropriate governing body
shall be taken in accordance with the pro- or authority for determination. The govern-
vision of K.S.A. 60-2101. ing body or authority, as soon as practicable
, (c) Notwithstanding the other provi- after receiving a report from the chief fi-
sions of this section and the act of which this nancial officer for the agency of the fiscal
section is a part, when a memorandum of effect the terms of such memorandum will
agreement applies to the state or to any state have upon the agency, shall consider the
agency,the same shall not be effective as to memorandum and take appropriate action.
any matter requiring passage of legislation If the public employer is a taxing subdivi-
or state finance council approval, until ap- sion subject to the provisions of K.S.A. 1970
proved as provided in this subsection (c). Supp. 79-4401, et seq., such financial report
When executed, each memorandum of shall also such information on as to the im-
agreement shall be submitted to the state Pact su
finance council. Any part or parts of a mem- sion's aggregate tax levy and operating ex-
• orandum of agreement which relate to a pense limitations. If a settlement is reached
matter which can be implemented by with an employee organization and the
amendment of rules and regulations of the governing body or authority, the governing
secretary of administration or by amend- body or authority shall implement the set-
. ment of the pay plan and pay schedules of Clement in the form of a law, ordinance,
the state may be approved or rejected by the resolution, executive order, rule or regula-
state finance council, and if approved, shall tion. If the governing body or authority re-
thereupon be implemented by it to become jects a proposed memorandum, the matter
effective at such time or times as it speci- shall be returned to the parties for further
Pies. Any part or parts of a memorandum of deliberation.
agreement which require passage of legis- History: L. 1971, ch. 264, § 11; March 1,
lation for the implementation thereof shall 1972.
be submitted to the legislature at its next CASE ANNOTATIONS
regular session, and if approved by the leg- 1. Mentioned in action involving collective negotia-
islature shall become effective on a date Lions of teachers' association with school board. Na-
specified by the legislature. tional Education Association v. Board of Education,
212 K. 741, 749, 512 P.2d 426.
History: L. 1971, ch. 264, §. 10; L. 1972, 2. Board of regents is an employer under public
ch. 340, § 2; April 11. employer-employee relations act. Kansas Bd. of Re-
Law Review and Bar Journal References: gents v. Pittsburg State Univ.Chap.of K-NEA,233 K.
801, 812, 667 P.2d 306 (1983).
"The Kansas Public Employer-Employee Relations
Law," Raymond Goetz, 28 K.L.R. 243 (1980). 75.4332. Memoranda of agreement;
CASE ANNOTATIONS procedure in of impasse; fact-finding
1. Mentioned in action involving collective negotia- board; hearing; costs. (a) Public employers
tions of teachers' association with school board. Na- may include in memoranda of agreement
clonal Education Association v. Board of Education,
212 K. 741, 749, 512 P.2d 426. concluded with recognized employee orga-
2. Memorandum of agreement can waive due nizations a provision setting forth the pro-
process rights of employees if it provides for protection cedures to be invoked in the event of dis-
and enforcement of employees'rights;absent evidence pules which reach an impasse in the course
of partiality or unfairness,grievance board not partial of meet and confer proceedings. Such
or unfair due to method of selection.Gorham v.City of
Kansas City, 225 K. 369, 376, 590 P.2d 1051. memorandum shall define conditions under
283
75-4333 STATE DEPARTMENTS; PUBLIC OFFICERS, EMPLOYEES
which an impasse exists, and if the em- dations of the fact-finding board, together
ployer is bound by the budget law set forth with his or her recommendations for set-
in K.S.A. 79-2925 et seq., and amendments tling the dispute; (2) the employee organi-
thereto,the memorandum shall provide that zation may submit to such governing body
an impasse is deemed to exist if the parties its recommendations for settling the dis-
fail to achieve agreement at least fourteen pute; (3) the governing body or a duly au-
(14) days prior to budget submission date. thorized committee thereof shall forthwith
(b) In the absence of such memorandum conduct a hearing at which the parties shall
of procedures, or upon the failure of such be required to explain their positions; and
procedures resulting in an impasse, either (4)thereafter, the governing body shall take
party may request the assistance of the such action as it deems to be in the public
public employee relations board, or the interest,including the interest of the public
board may render such assistance on its own employees involved. The provisions of this
motion. In either event, if the board deter- subsection shall not be applicable to the
nines an impasse exists in meet and confer state and its agencies and employees.
proceedings between a public employer (e) The cost for the mediation and fact-
and a recognized employee organization, finding services provided by the secretary
the board shall aid the parties in effecting a of human resources upon request of the
voluntary resolution of the dispute, and re- board shall be borne by the secretary of
quest the appointment of a mediator or me- human resources. All other costs, including
diators, representative of the public, from a that of a neutral arbitrator, shall be borne
list of qualified persons maintained by the equally by the parties to a dispute.
secretary of human resources, and such ap- History: L. 1971, ch. 264, § 12; L. 1976,
pointment of a mediator or mediators shall ch. 370, § 101; July 1.
be made forthwith by the secretary. Law Review and Bar Journal References:
(c) If the impasse persists seven (7) days Collective Negotiations Act, 18 W.L.J. 11, 19, 17
after the mediators have been appointed, (1978).
the board shall request the appointment of a -Open Meetings Profile: The Prosecutor's view,'
fact-finding board of not more than three(3) Bradley J.Smoot and Louis M.Clothier,20 W.L.J.291,
254 (1981).
members,each representative of the public,
from a list of qualified persons maintained CASE ANNOTATIONS
by the secretary of human resources. The 1. Mentioned in action involving collective negotia-
tions of teachers' association with school board. Na-
fact-finding board shall conduct a hearing, tional Education Association v. Board of Education,
m;iy administer oaths, and may request the 212 K. 741, 749, 512 P.2d 926.
board to issue subpoenas. It shall make
written findings of facts and recommenda- 75.4333. Prohibited practices; evi-
tions for resolution of the dispute and, not Bence of bad faith. (a) The commission of
later than twenty-one (21)days from the day any prohibited practice, as defined in this
of appointment,shall serve such findings on section, among other actions, shall consti-
the public employer and the recognized tute evidence of bad faith in meet and
employee organization. The board may confer proceedings.
make this report public seven (7)days after (b) It shall be a prohibited practice for a
it is submitted to the parties. If the dispute public employer or its designated repre-
continues fourteen (14) days after the report sentative willfully to:
is submitted to the parties, the report shall (1) Interfere, restrain or coerce public
be made public. employees in the exercise of rights granted
(d) If the parties have not resolved the in K.S.A. 75-4324;
impasse by the end of a forty-day period, (2) Dominate, interfere or assist in the
commencing with the appointment of the formation, existence, or administration of
fact-finding board,or by a date not later than any employee organization;
fourteen (14) days prior to the budget sub- (3) Encourage or discourage. member-
mission date, whichever date occurs first: ship in any employee organization, com-
(1) The representative of the public em- mittee, association or representation plan
ployer involved shall submit to the govern- by discrimination in hiring, tenure or other
ing body of the public employer involved a conditions of employment, or by blacklist-
copy of the findings of fact and recommen- ing;
284
•
•
PUBLIC OFFICERS AND EMPLOYEES 754334
(4) Discharge or discriminate against an Kansas,"
a(19"Janet Chubb and David Gray, 15 W.L.J.457,
employee because he or she has filed any 4611111e97/(16
The Kansas Public Employer-Employee Relations
affidavit, petition or complaint or given any
Law,- Raymond Goetz, 28 K.L.R. 243 (1980).
information or testimony under this act, or CASE ANNOTATIONS
because he or she has formed, joined or 1. Mentioned in action involving collective negotia-
chosen to be represented by any employee tions of teachers' association with school board. Na-
organization; tional Education Association v. Board of Education,
(5) Refuse to meet and confer in good 212 K. 741, 749, 512 P.2d 426.
2. Prohibited practice charged under subsection
faith with representatives of recognized (c)(1)in contest of representation election;misconduct
employee organizations as required in found not to have substantially interfered with elec-
K.S.A. 75-4327; tion. Kansas Ass'n of Public Employees v. Public Ser-
(6) Deny the rights accompanying cer- vice Employees Union,218 K.509,510,544 P.2d 1389.
tification or formal recognition granted in 3. Subsection(e)discussed in contest of representa-
K.S.A. 75-4328; tion election; federal rule cited with approval but
• found inapplicable to facts. Kansas Ass'n of Public
(7) Deliberately and intentionally avoid Employees v.Public Service Employees Union,218 K.
mediation, fact-finding, and arbitration en- 509, 517, 544 P.2d 1389.
deavors as provided in K.S.A. 75-4332; or 4. Section cited; city found to have engaged in pro-
(8) Institute or attempt to institute a hibited practice; employee reinstated without back
pay. Behrmann v. Public Employee Relations Board,
lockout. 225 K. 435, 436, 591 P.2d 173.
(c) It shall be a prohibited practice for 5. Charges hereunder considered in determination
public employees or employee organiza- of conditions of employment which are mandatorily
tions willfully to: negotiable; test applied. Kansas Bd. of Regents v.
1 Interfere with, restrain or coerce Pittsburg State Univ.Chap.of K-NEA,233 K.801,809,
(1) 806,807, 808, 667 P.2d 306 (1983).
public employees in the exercise of rights
granted in K.S.A. 75-4324; 754334. Same; proceedings for deter-/
(2) Interfere with, restrain or coerce a mination; findings of fact; judicial review;
public employer with respect to manage- enforcement of final orders; action in dis-
ment rights granted in K.S.A. 75-4326, or trict court in proceeding involving alleged
with respect to selecting a representative strike or lockout. (a) Any controversy con-
for the purposes of meeting and conferring cerning prohibited practices may be sub-
or the adjustment of grievances; mated to the board Proceedings against the
(3) Refuse to meet and confer in good party alleged to ha a committed a prohib-
faith with a public employer as required in ited practice shall t commenced within six
K.S.A. 75-4327; (6) months of tb 2 tte of such alleged prac-
(4) Deliberately and intentionally avoid tice by service upon it by the board of a
mediation, fact-finding and arbitration ef- written nutlet, together with a copy of the
forts as provided in K.S.A. 75-4332; or charges.Th?accused party shall have seven
(5) Engage in a strike. (7) days' within which to serve a written
(d) It shall be a prohibited practice for a ans eq~to such charges, unless the board
public employee organization to endorse det Ines an emergency exists and re-
candidates, spend any of its income, di- quir s the accused party to serve a written
rectly or indirectly, for partisan or political answer to such charges within twenty-four
purposes or engage in any kind of activity (24) hours of their receipt. A strike or lock-
advocating or opposing the election of can- out shall be construed to be an emergency.
didates for any public office. The board's/hearing will be held promptly
(e) In the application and construction thereafter.and at such hearing, the parties
of this section, fundamental distinctions shall be:permitted to be represented by
between private and public employment counsel'and to summon witnesses in their
/shall be recognized, and no body of federal behalf:!Compliance with the technical rules
or state law applicable wholly or in part to of evidence shall not be required. The
private employment shall be regarded as boaid may use its rule-making power, as
binding or controlling precedent. provided in K.S.A. 75-4323, to make any
History: L. 1971, ch. 264, § 13; March 1, other procedural rules it deems necessary to
1972. /carry on this function.
Law Review and Bar Journal References: (b) The board shall state its findings of
"Teachers and the School Board-Negotiations in facts upon all the testimony and shall either
285
1.
75.4335 STATE DEPARTMENTS; PUBLIC OFFICERS;EMPLOYEES
dismiss the complaint or determine that a Service Employees Union, 218 K. 509, 510, 511, 544
prohibited practice has been or is being P.2d 1389.
committed. If the board finds that the party 2. District court order setting aside order of board
arbitrary and capricious;authority exceeded by substi-
accused has committed or is committing a tuting its judgment for that of board.Coggins v. Public
prohibited practice, the board shall make Employee Relations Board,2 K.A.2d 416,418,419,581
findings as authorized by this act and shall P.2d 817.
file the same in the proceedings. Any per- 3. Provisions for limited scope of review by district
court upheld; no separation of powers violation. Behr-
son aggrieved by a final order of the board mann v. Public Employee Relations Board,225 K.435,
granting or denying in whole or in part the 436, 437, 438, 439,444, 591 P.2d 173.
relief sought may obtain a review of such 4. Upon review, findings of facts conclusive unless
order in the district court, in the judicial not supported by substantial evidence and record.
Kansas Bd.of Regents v.Pittsburg State Univ.Chap.of
district where all of the major geographical K-NEA, 233 K. 801, 808, 667 P.2d 306 (1983).
area of the public employer is located, by
filing in such court a petition praying that 75-4335. Act inapplicable to public
the order of the board be modified or set employers, other than state or its agencies,
aside, with copy of the complaint filed with adopting provisions and procedures deter-
the board, and thereupon the aggrieved mined by board to be reasonably equiva-
party shall file in the court the record in the lent. This act, except for K.S.A. 75-4322,
proceeding certified by the board. Findings 754323, 754324, 754325, 754326, 75-
of the board as to the facts shall be conclu- 4327, 75-4328, 754333 and 754334, shall
sive unless it is made to appear to the be inapplicable to any public employer,
court's satisfaction that the findings of fact other than the state and its agencies which,
were not supported by substantial evidence acting through its governing body, has
and the record considered as a whole. adopted by ordinance or resolution its own
(c) The board is hereby authorized to provisions and procedures which have been
file a petition in the district court to enforce submitted to the board by such public em-
its final orders until such time as they are Ployer and as to which there is in effect a
modified or set aside by the court. The determination by the board that such provi-
procedures for obtaining injunction and al- sions and procedures and the continuing
lied remedies shall be as set forth in the implementation thereof are reasonably
code of civil procedure, except that the pro- equivalent to the provisions and procedures
visions of K.S.A. 60-904 shall not control set forth in this act with respect to the state.
injunction actions arising out of public em- History: L. 1971, ch. 264, § 15; March 1,
ployer-employee relations under this act. 1972.
(d) In the event there is an alleged vio- 75.4336. Registration of business
lation of either subsections (b) (8) or (c) (5)
of K.S.A. 75-4333, the aggrieved party is agents for employee organizations; a-
now certificate; fee; exemption. (a)) Every
authorized to seek relief in district court in person desiring to act as a business agent for
the manner provided for the board in sub- an employee organization shall first obtain a
section (c) of this section while proceedings registration certificate from the secretary of
on such prohibited practices are pending state by filing an application therefor and
before the board. Any ruling of the district paying a registration fee of$12.50. No per-
court shall remain in effect until set aside by son shall be issued a registration certificate
the court on motion of the parties or of the unless: (1) The applicant is a citizen of the
board or upon review of the board's order as United States; (2) the applicant's name, ad-
provided by subsection (b). dress and length of residence in Kansas are
History: L. 1971, ch. 264, § 14; L. 1973, stated in the application; and (3) the appli-
ch. 363, § 6; July 1. cation is accompanied by a statement,
Law Review and Bar Journal References: signed by the president and secretary of the
"Rethinking Kansas Administrative Procedure," employee organization, which authorizes
Marilyn V.Ainsworth and Sidney A.Shapiro,28 K.L.R. the applicant to act as agent for such em-
419, 435, 436(1980). PP g
CASE ANNOTATIONS ployee organization.
1. Prohibited practice charged under 754333(c)(1); (b) Unless it has been surrendered, sus-
misconduct found not to have substantially interfered pended or revoked at an earlier date, the
with representation election; scope of judicial review registration certificate shall be valid for the
stated. Kansas Ass'n of Public Employees v. Public calendar year in which it was obtained and
286
PUBLIC OFFICERS AND EMPLOYEES 75.4351
shall expire on December 31 or, for regis- (6) an audited statement of the income,
tration certificates obtained after December expenditures, assets and liabilities of the
31, 1982, each such registration certificate employee organization.
may be valid for the fiscal year of the em- (c) In lieu of filing an annual report in
ployee organization represented by the the form prescribed by the board under
business agent in which the certificate was subsection (b) of this section, the employee
obtained and shall expire on the last day of organization may file
with th e with States
reports
such fiscal year. required
If a person has obtained a registra- department of labor by the federal labor
tion certificate as a business agent under the management reporting and disclosure act of
provisions of K.S.A. 44-804 and amend- 1959, 29 U.S.C.A. § 431, et seq., as follows:
ments thereto to act in such capacity for a (1) By having on file with the secretary
labor organization thereunder and such of state a copy of the labor organization
labor organization is an employee organiza- information report form LM-1 which is cur-
tion, such registration shall fully satisfy the rently on file with the United States de-
requirements of this section and no further partment of labor; and
registration or registration fee shall be re- (2) by filing annually as required in
quired of such person desiring to act as a subsection (a) of this section, a copy of the
business agent for such employee organiza- labor organization nn filed report form LM-2
tion. or
History: L. 1973, ch. 363, § 3; L. 1974, States department of labor and covers a re-
ch. 207, § 7; L. 1982, ch. 363, § 10; July 1. porting period specified in subsection (a).
(d) Every employee organization which
754337. Annual report of employee has filed an annual report as a labor organi-
organizations; contents; fee; alternative fil- nation under the provisions of K.S.A.44-806
ing of federal reports; exemption. (a) Every and amendments thereto shall be deemed
employee organization operating in the to have fully satisfied the requirements of
state of Kansas and having 100 or more this section and shall not be required to file
members shall file an annual report with the an annual report under this section.
secretary of state on or before April 15, History: L. 1973, ch. 363, § 4; L. 1974,
showing the financial condition of the em- ch. 207, § 8; L. 1980, ch. 150, § 2; L. 1982,
ployee organization on the December 31 ch. 363, § 11; July 1.
next preceding the date of filing or at the
close of business on the last day of the 75-4338 to 75-4350. Reserved.
organization's fiscal year next preceding the
date of filing. Each annual report filed INTERPRETERS SPEAKItNG PE RS OTHER
under this section shall be accompanied by
a filing fee of$5. The secretary of state may 75.4351. Interpreters appointed for
upon showing of reasonable cause grant an deaf, mute and persons whose primary Ian-
extension of time for filing of annual report. guage is other than English; proceeding in
(b) The annual report shall be in such which appointment authorized. A qualified
form as the board shall prescribe and shall interpreter shall be appointed in the fol-
include: lowing cases for persons whose primary
(1) The name of the employee organiza- language is one other than English, or who
tion; are deaf or mute or both: (a) In any grand
(2) the location and mailing address of jury proceeding,when such person is called
its office; as a witness;
(3) the name and title of each of its of- (b) in any court proceeding involving
ficers and registered business agents, to- such person and such proceeding may re-
gether with the salaries, wages, bonuses suit in the confinement of such person or
and other remuneration paid each, and the imposition of a penal sanction against
mailing address of each; such person;
(4) the date of the regular election of (c) in any civil proceeding, whether
officers of such employee organization; such person is the plaintiff, defendant or
(5) the rate of its initiation fees, dues, witness in such action;
assessments and any other periodic pay- (d) in any proceeding before a board,
ments required of its members; and commission, agency, or licensing authority
287
•
754320 STATE DEPARTMENTS; PUBLIC OFFICERS, EMPLOYEES
(6) preliminary discussions relating to the PUBLIC EMPLOYER-EMPLOYEE RELATIONS
acquisition of real property; and 75.4321.
(7) matters permitted to be discussed in a
closed or executive meeting pursuant to K.S.A. Attorney General's Opinions:
1987 Supp. 74-8804 and amendments thereto. State provided housing,.food service or other employee
maintenance. 87-36.
(c) No binding action shall be taken during County commissioners; employment termination of
closed or executive recesses, and such recesses county employees. 88-11.
shall not be used as a subterfuge to defeat the
CASE ANNOTATIONS
purposes of this act.
History: L. 1972, ch. 319, § 3; L. 1977, 6. Public employers failing to come under PERA are
subject to anti-injunction provisions of 60-904(c). City of
ch. 301, § 3; L. 1981, ch. 344, § 1; L. 1988, Kansas City v. Carpenters Dist. Council of Kansas City,
ch. 315, § 4; April 14. 237 K. 295, 301, 699 P.2d 493 (1985).
Law Review and Bar Journal References: 7. No positive obligation on city to refrain from dis-
charging without cause;ordinance requiring city residence
"Agency Access and Disclosure: Kansas and Federal," not contrary to act. Kansas City, Kan. Frat. v. City of
David L. Ryan, 56 J.K.B.A., No. 6, 8, 10 (1987). Kansas City, 620 F.Supp. 752. 759, 760 (1984).
Attorney General's Opinions:
Bodies subject to open public meetings; not-for-profit 754322.
corporations. 85-49. Attorney General's Opinions:
Language of 24-1212 providing that no executive sessions Public employee organizations; uniformed members of
be held is repealed by implication by KOMA. 85-161. highway patrol may join KAPE. 85-101.
Executive meetings; subjects to he discussed. 86-33. State provided housing, food service or other employee
Meetings of public agencies open to public. 86-48. maintenance. 87-36.
Attendance at executive sessions. 86-143.
Executive sessions; consultation with an attorney. 86- CASE ANNOTATIONS
162. 5. No positive obligation on city to refrain from dis-
Executive session; personnel matters. 87-10. charging without cause;ordinance requiring city residence
Discussion of acquisition of real property may be in a not contrary to act. Kansas City, Kan. Frat. v. City of
closed meeting; discussion of sale of real property must Kansas City, 620 F.Supp. 752. 759, 760 (1984).
be in open meeting. 87-91.
Public officers and employees; executive sessions; per- 75.4326.
sonnel matters; open public meetings, independent con-
Law Review and Bar Journal References:
tractors. 87-169. J
County and county officers; open public meetings; at- Rights of Kansas Non-Union Employees Against Unjust
tendance at executive sessions. 87-170. Termination-Where Are We Now?" William C. Nulton,
Governing bodies;subordinate commissions;open public J.K.B.A. 237, 238 (1985).
:meetings; personnel matters. 88-25. Attorney General's Opinions:
CASE ANNOTATIONS County commissioners; employment termination of
2. Redress for technical violations of KOMA not man- county employees. 88-11.
datory. Stevens v. City of Hutchinson. 11 K.A.2d 290, CASE ANNOTATIONS
291, 726 P.2d 279 (1986). 2. No positive obligation on city to refrain from dis-
75.4320. charging without cause;ordinance requiring city residence
not contrary to act. Kansas City, Kan. Frat. v. City of
Law Review and Bar Journal References: Kansas City, 620 F.Supp. 752. 760 (1984).
"Agency Access and Disclosure: Kansas and Federal,"
David L. Ryan. 56 J.K.B.A., No. 6, 8. 10 (1987). 754327.
CASE ANNOTATIONS Revisor's Note:
4. Non-prearranged recess gathering of county com- This section was amended by L. 1988. ch. 356, t 304,
missioners not violation of open meetings act. Stevens v. effective July 1, 1989.
Board of Reno County Comm'rs, 10 K.A.2d 523. 526, 710 Attorney General's Opinions:
P.2d 698 (1985).
5. Cited: no abuse of discretion in denying intervention Public employee organizations; uniformed members of
in open meetings case when attorney general did not follow highway patrol may join KAPE. 85-101.
statutory procedure (60-205). Memorial Hospital Ass'n. CASE ANNOTATIONS
Inc. v. Knutson, 239 K. 663, 666. 722 P.2d 1093 (1986). 5. No positive obligation on city to refrain from dis-
75.4320a. charging without cause;ordinance requiring city residence
not contrary to act. Kansas City, Kan. Frat. v. City of
CASE ANNOTATIONS Kansas City, 620 F.Supp. 752. 759, 760(1984).
2. Cited; act confers no constitutional rights and court
has no jurisdiction to determine if act applicable. Boster 754330. Memorandum agreements, lim-
v. Philpot, 645 F.Supp. 798, 808 (1986). itations; grievance procedures; arbitration;ju-
• 72
•
PUBLIC OFFICERS AND EMPLOYEES 75.4334
dicial review. (a) The scope of a memorandum shall be submitted to the state finance council.
of agreement may extend to all matters relating Any part or parts of a memorandum of agree-
to conditions of employment, except proposals ment which relate to a matter which can be
relating to (1)any subject preempted by federal implemented by amendment of rules and reg-
or state law or by a municipal ordinance passed ulations of the secretary of administration or
under the provisions of section 5 of article 12 by amendment of the pay plan and pay sched-
of the Kansas constitution; (2) public employee ules of the state may be approved or rejected
rights defined in K.S.A. 75-4324 and amend- by the state finance council, and if approved,
ments thereto; (3) public employer rights de- shall thereupon be implemented by it to be-
fined in K.S.A. 75-4326 and amendments come effective at such time or times as it spec-
thereto; or (4) the authority and power of any ifies. Any part or parts of a memorandum of
civil service commission, personnel board, per- agreement which require passage of legislation
sonnel agency or its agents established by stat- for the implementation thereof shall be sub-
ute, ordinance or special act to conduct and miffed to the legislature at its next regular
grade merit examinations and to rate candi- session, and if approved by the legislature shall
dates in the order of their relative excellence, become effective on a date specified by the
from which appointments or promotions may legislature.
be made to positions in the competitive divi- History: L. 1971, ch. 264, § 10; L. 1972,
sion of the classified service of the public em- ch. 340, § 2; L. 1986, ch. 318, § 138; July 1.
ployer served by such civil service commission Attorney General's Opinions:
or personnel board. Any memorandum of State provided housing, food service or other employee
agreement relating to conditions of employ- maintenance. 87-38.
.ment entered into may be executed for a max- 75.4331.
'mum period of three cash-basis s law witconta ied Attorney General's Opinions:
provisions of the cash-basis law contained n'
in K.S.A. 10-1102 et seq., and amendments Public employer-employee relations act; application to
thereto, and the budget law contained-in judiciary and legislature. 87-181.
K.S.A. 79-2925 a seq., and amendments 75-4332.
thereto. Attorney General's Opinions:
(b) Such memorandum agreement may Public employer-employee relations act; application to
contain a grievance procedure and may provide judiciary and legislature. 87-181.
for the impartial arbitration of any disputes that 75-4333.
arise on the interpretation of the memorandum
agreement. Such arbitration shall be advisory Law Review and Bar Journal References:
or final and binding, as determined by the Termination—Where ts of Ksas Are Wo EmployeesiAgai Against Unront
agreement, and may provide for the use of a ban J B 237. 238 Areas)
fact-finding board. The public employee rela- CASE 9P3). 10NS
tions board is authorized to establish rules for
procedure of arbitration in the event the agree- 6. No positive obligation on city to refrain from dis-
ment has not established such rules. In the charging without cause;ordinance requiring city residence
absence of arbitrary and capricious rulings by not contrary to act. Kansas City, Kan. Frat. v. City of
the fact-finding board during arbitration, the Kansas City, 620 F.Supp. 752, 760 (1984).
decision of that board shall be final. Judicial 754334. Prohibited practices, determi-
review shall be in accordance with the act for nation of existence; procedure. (a) Any con-
judicial review and civil enforcement of agency troversy concerning prohibited practices may
actions. be submitted to the board. Proceedings against
(c) Notwithstanding the other provisions of the party alleged to have committed a prohib-
this section and the act of which this section ited practice shall be commenced within six
is a part, when a memorandum of agreement months of the date of such alleged practice bd
applies to the state or to any state agency, the service upon the accused party by
memorandum of agreement shall not be effec- of a written notice, together with a copy of the
tive as to any matter requiring passage of leg- charges. The accused party shall have seven
islation or state finance council approval, until days within which to serve a written answer
:pproved as provided in this subsection. When to such charges, unless the board determines
executed, each memorandum of agreement an emergency exists and requires the accused
73
754351 STATE DEPARTMENTS; PUBLIC OFFICERS, EMPLOYEES
party to serve a written answer to such charges INTERPRETERS FOR DEAF, MUTE AND OTHER
within 24 hours of their receipt. A strike or THAN ENGLISH SPEAKING PERSONS
lockout shall be construed to be an emergency. 754351.
The board's hearing will be held promptly
thereafter and at such hearing, the parties shall CASE ANNOTATIONS
be permitted to be represented by counsel and 2. Regardless whether interpreter present, trial court
to summon witnesses in their behalf. Comp li- must determine if defendant, knowing Miranda rights,
P freely and knowingly made statement. State v. Zuniga,
ante with the technical rules of evidence shall 237 K. 788, 791, 792, 703 P.2d 805 (1985).
not be required. The board may use its rn-
lemaking power, as provided in K.S.A. 754323
and amendments thereto, to make any other STATE DRUG SCREENING PROGRAM
es-
on cedufunc rules it deems necessary to carry 754362. Drug screening program; es-
(b) The board shall state its findings of facts tablishment and implementation; duties of di-
(b) all the testimony and shall either dismiss rector of personnel; state government
the complaint or determine that a prohibited positions subject to program; effect of positive
practice has been or is being committed. If the test result on employment; results confiden-
board finds that the party accused has coin- tial; rules and regulations; "safety sensitive o-
mitted or is committing a prohibited practice, sitions°defined. (a)The director of the divisi on
the board shall make findings as authorized by administration shall have the authority to es-
this act and shall file them in the proceedings. tablish and implement a drug screening pro-
(c) Any action of the board pursuant to sub-
section (b) is subject to review and enforce- gram for persons taking offi ce as governor,
ment in accordance with the act for judicial lieutenant governor or attorney general and for
review and civil enforcement of agency actions. applicants for safety sensitive positions in state
The procedures for obtaining injunction and government, but no applicant for such a po-
allied remedies shall be as set forth in the code sihon shall be required to submit to a test as
of civil procedure, except that the provisions a part ve
of
such program unless the applicant is
of K.S.A. 60-904 and amendments thereto shall first given a conditional offer of employment.
not control injunction actions arising out of The director also shall have the authority to
public employer-employee relations under this establish and implement a drug screening pro-
act. gram for persons currently holding the office
(d) If there is an alleged violation of either of governor, lieutenant governor or attorney
subsection (b)(8) or(c)(5)of K.S.A. 75-4333 and general or safety sensitive positions in state
amendments thereto, the aggrieved party is government, based upon reasonable suspicion
authorized to seek relief in district court in the of illegal drug use by any such person.
manner provided for the board in subsection (b) Any public announcement or advertise-
(c) while proceedings on such prohibited prat- ment soliciting applications for employment in
tices are pending before the board. Any ruling a safety sensitive position in state government
of the district court shall remain in effect until shall include a statement of the requirements
set aside by the court on motion of the parties of the drug screening program established oy-
or of the board or upon review of the board's der this section for applicants for and employ-
order as provided by subsection (c). ee( holding such position.
History: L. 1971, ch. 264, § 14; L. 1973, (c) No person shall be terminated solely
ch. 363, § 6; L. 1986, ch. 318, § 139; July 1. due to positive results of a test administered
as a part of a program authorized by this sec-
Revisor's Note: tion if: (1) The employee has not previously
This section was amended by L. 1988, ch. 356, 4 305, had a valid positive test result; and (2) the
effective July 1, 1989. employee undergoes a drug evaluation and suc-
CASE ANNOTATIONS cessfully completes any education or treatment
5. Absent provisions herein, public employees are in- program recommended as a result of the eval-
eluded in anti-injunctive ban of 60-904(c). City of Kansas uation. Nothing herein shall be construed as
City v. Carpenters Dist. Council of Kansas City, 237 K.
295, 301, 699 P.2d 493 (1995). prohibiting demotions, suspensions or teimi-
6. No positive obligation on city to refrain from dis- nations pursuant to K.S.A. 1987 Sapp. 7$-
charging without cause;ordinance requiring city residence 2949e or 75-2949f, and amendments thereto.
not contrary to act. Kansas City, Kan. Frat. v. City of (d) The results of any test administered as
Kansas City. 620 F.Supp. 752, 760(1984). a part of a program authorized by this section
74
etc- a/-4--7 764_5
r
Agency 84
Public Employee Relations Board
Articles
84-1. GENERAL PROVISIONS.
84-2. PROCEDURE.
84-3. PROHIBITED PRACTICES.
84-4. LOCAL GOVERNMENT PROCEDURES.
84-5. IMPASSE.
Article 1.—GENERAL PROVISIONS efficient operation of the board, the orderly
84.1.1. Definitions. (a) Act—The term administration of the act, and to provide
"act' shall refer to public employer-em- meaningful avenues for realizing and for
ployee relations act K.S.A. 75-4321 a seq. enforcing statutory rights and obligations of
and amendments.Terms used in these rules public employees,public employee organi-
shall have the same meaning as defined in zations, and public employers of this state.
the act unless their context clearly indicates (b) Interpretation—These rules shall be
otherwise. liberally construed to effectuate the pur-
(b) Computation of time—Whenever the poses and provisions of the act.
ume limited in these rules for any act is (c) Waiver—In the event that the appli-
seven days or more, Saturdays,Sundays and cation of these rules would not be feasible
legal holidays shall be included in making or would work an injustice, the board may
the computation. Whenever the time so waive or suspend the rules at any time or in
limited is less than seven days, Saturdays, any proceeding unless such action results in
Sundays and legal holidays shall be ex- depriving a party of substantial rights.
eluded. Whenever the last day of any such (d) Separability—If any provisions of
period shall fall on a Saturday, Sunday or these rules be held invalid, it shall not be
legal holiday, such day shall be omitted construed to invalidate any of the other
from the computation. The board, for good provisions of these rules.
cause shown, may extend any time pre- (e) Filing annual report—Every em-
scribed in these rules. Computation of time ployee organization shall file with the board
shall commence when service to a party is a copy of the annual report required pursu-
ant to K.S.A. 754337 as amended.
made by the board.
(c) Party—The term "party" as used (f) Proof of employee organization Kan-
herein, shall mean any public employee, sas license—Every person who shall act or
employee organization, or public employer attempt to act for any employee organize-
filing a complaint, petition, or application lion shall show proof of being licensed in
under the act or these rules; any public Kansas as provided in K.S.A. 75-4336 as
employee, employee organization or public amended before that person will be allowed
employer named as a party in a complaint or to participate in proceedings under the
Petition filed under the act or these rules; or public employer-employee relations act
any person,organization or public employer K.S.A.75-4321 et seq. (Authorized by K.S.A.
whose timely motion to intervene in a pro- Supp. 75-4323 (d), 75-4330 (b), 75-4334 (a),
seeding has been granted. (Authorized by
75-4336, 75-4337; effective, E-72-29, Sept.
K.S.A. 754323 (d); effective, E-72-29, Sept. 29, 1972; effective Jan. 1, 1973; amended
29, 1972; effective Jan. 1, 1973; amended May 1, 1975.)
'ay 1, 1975.)
84.1.2. Scope. (a) Purpose—These rules Article 2.—PROCEDURE
and regulations are intended as aids to the 84.2.1. Service of pleadings. (a)
129
84.2.2 PUBLIC EMPLOYEE RELATIONS BOARD
Method; proof; complaints; orders; and upon each of the parties and upon any
other processes and papers of the board— known individuals or employee organize.
Complaints, decisions and orders and other tions claiming to represent any employees
processes and papers of the board may be directly affected, a notice of hearing, at a
served personally, by certified mail, by place fixed herein, and, except by agree-
telegraph or by leaving a copy thereof in the ment of the parties or in unusual circum-
proper office or place of business of persons stances, at a time not less than seven days
to be served. The return by the individual after the service of such notice.
so serving the same, setting forth the man- (2) Any such notice of hearing may be
ner of such service shall be proof of the withdrawn or amended prior to the begin.
same, and the return post office receipt or ning of the hearing by the board.
telegraph receipt, when certified and (c) Conduct of hearings—(1) It shall be
mailed or telegraphed as aforesaid, shall be the duty of the board or its agent to inquire
proof of service of the same. fully into all matters at issue and to obtain a
(b) Service by a party—The moving party full and complete record.
and respondent in any action shall be re- (2) The board may, at its discretion, con-
quired to file the original and five copies of tinue the hearing from day to day or adjourn
any pleadings with the board either in per- it to a later date or another place, by an-
son or by certified mail. nouncement thereof at the hearing or by
(c) Service upon attorney—If a party ap- other appropriate notice.
pears by her, his or its attorney, all papers (3) Motions: (a) All motions made during
other than the complaint, notice of original a hearing shall be made part of the record of
hearings, and decisions and orders may be the proceedings.
served as hereinafter provided, upon such (b) All motions and answers thereto other
attorney with the same force and effect as than those made during a hearing shall be
though served upon the party. made in writing to the board, pursuant to
(d) Service by the board—The board the provisions of 84-2-1 (b), shall briefly
shall be required to serve all parties to an state the relief sought, and shall be accom-
action with all papers duly filed with the panied by affidavits setting forth the
board. (Authorized by K.S.A. 75-4323 (d)(3), grounds upon which they are based. An-
(4); 75-4327 (c), (d), (e); 75-4332 (b), (c), (d), swering affidavits, if any,shall be filed with
(e); 75-4334(a), (b);effective,E-72-29, Sept. the board within five working days after
29, 1972; effective Jan. 1, 1973; amended service of the moving papers, unless the
May 1, 1975.) board or its agent directs otherwise. The
board shall rule upon motions filed with it.
84.2.2. Hearings. (a) General provi- It may decide to hear oral argument to tes-
sions—(1) Hearings may be conducted by timony thereon, in which case it shall notify
the board, or any member or members the parties of such fact and of the time and
thereof, or any member of its staff or other place of such argument or for the taking of
individual designated by the board. In the such testimony. The board shall issue nil-
event a duly appointed hearing examiner is ings and orders to decide all matters in
unable to continue a hearing, such hearing hearings before it and all such motions and
may be reconvened at a later date,when the rulings and orders thereon shall be part of
appointed examiner is available, or with the the record of the proceedings.
consent of all parties a hearing officer may (4) An objection not duly urged before
be substituted. the board shall be deemed waived unless
(2) The hearing shall be limited to perti- the failure to urge such objection shall be
nent matters necessary to determine ques- excused by the board or its agent because of
tions relating to the immediate controversy. extraordinary circumstances.
(b) Notice of hearings—(1) Following the (5) Introduction of evidence; the rights of
filing of a petition, if it appears to the board parties at hearings: (a) Any party shall have
that further proceedings are warranted, the the right to appear at any hearing in person,
board, or its agent shall issue and serve by counsel, or by other representative, and
130
•
PROCEDURE 84.24
any party and the board or its agent shall . the hearing officer shall issue his findings of
have the power to call and examine wit- fact, conclusions of law, and recommenda-
nesses, and to introduce into the record lions. Such findings of fact, conclusions of
documentary and other evidence. A party law,and recommendations shall be in writ-
shall,upon offering an exhibit into evidence ing and shall contain, but need not be lirn-
at a hearing, simultaneously furnish copies ited to: (1) a statement of the case and a
to all other parties, unless excused by the preliminary procedure before the board or
board or its agent. Witnesses shall be exam- the hearing officer, (2) findings of fact, (3)
fined orally under oath. Compliance with conclusions of law and recommendations to
the technical rules of evidence shall not be the board. The board shall, at its next regu-
required. Stipulations of fact may be intro- larly scheduled monthly meeting, after the
duced in evidence with respect to any issue. hearing officer has made said recommenda-
(b) The refusal of a witness at any hearing Lions, consider the case. All parties shall be
to answer any question which has been served with the board's decision and order.
ruled proper by the hearing officer shall be (Authorized by K.S.A. 75-4323 (c), (d), (4);
noted in the record. Such refusal shall go to 75-4327 (c), (d), (e); 75-4332 (b), (c), (d), (e);
the weight of previous testimony, but shall 75-4334 (a); effective, E-72-29, Sept. 29,
not be grounds for striking all previous tes- 1972; effective Jan. 1, 1973; amended May
timony of the particular witness. 1, 1975.)
(c) Misconduct at any hearing before the 84.2.3. Intervention. Any third party
bond shall be grounds for summary exclu- having a legitimate interest in any proceed-
sion from the hearing. As used herein, ings may file a petition of intervention set-
"misconduct" means conduct which ting forth facts sufficient to establish such
disrupts or interferes with the orderly ad- interest and requesting that the board re-
ministration of proceedings under the act, solve contested factual matters in its favor.
or conduct which evinces a refusal to obey Any organization which has a signed, valid
or disregard a lawful order or ruling of the memorandum of agreement encompassing
hearing officer. Misconduct, as defined in the proposed unit or any portion thereof
84-2-2(c)(5)(c),if of an aggravating character shall be considered to have a legitimate
and engaged in by an attorney or other rep- interest in any proceedings upon presenta-
resentative of a party, shall be grounds for lion of same. (Authorized by K.S.A. 1974
suspension or disbarment from further Supp. 75-4323 (d)(4); 75-4324; 75-4327 (a),
practice before the board or its agents. Such (b), (c), (d); 75-4328; effective, E-72-29,
suspension or disbarment shall be ordered Sept. 29, 1972; effective Jan. 1, 1973;
only after (i) the hearing officer or another amended May 1, 1975.)
party in the proceedings files a complaint in
writing with the board alleging the acts of 84.24. Authorization cards—acceptabil-
misconduct, and (ii) the respondent has ity. Evidence of representation or legiti-
been given thirty days notice of the charges, mate interest may be either individual au-
and(iii) the respondent is given an eviden- thorization cards, or by petition. In either
tiary hearing before the entire board. case, the petition or card must show ad-
(6) Upon appointment by the board of an dress,social security number,be signed and
agent to perform any of its functions, the dated by the employee expressing an intent
parties must file within three days any ob- to be represented by a specific employee
jection to said appointment. The objection organization. A card or petition signed and
must contain a statement setting forth the dated by a public employee less than 180
reasons for the party's position. There can days prior to the date on which the petition
be no objection to the appointment of an was filed shall constitute prime facie evi-
agent, but such objection must be confined dence of continuation of such authorization.
to the person who is appointed. (Authorized by K.S.A. 75-4323 (d)(4); 75-
(7) Findings of fact; conclusions of law; 4324; 75-4327 (a), (b), (c), (d); 75-4328; ef-
recommendation: (a) As expeditiously as fective, E-72-29, Sept. 29, 1972; effective
possible,after the conclusion of the hearing, Jan. 1, 1973; amended May 1, 1975.)
131
84-2-5 PUBLIC EMPLOYEE RELATIONS BOARD
84.2.5. Validity of showing of interest tition; filing—A petition, form to be pp
(a) The proof of interest submitted shall not vided by the board, may be filed with th
be furnished to any of the parties.The board board by an employee organization or grow
shall determine the adequacy of the show- of public employees or public employe
ing of interest and such decision shall not The original of the petition shall be signe
be subject to collateral attack at a hearing by the petitioner or his authorized reps/
before the board. Proof of interest shall not sentative and the original and five copie
be required until after unit determination thereof shall be filed with the board. (At
has been made by the board. thorized by K.S.A. 75-4323 (d)(4), 75-432
(b) All public employers shall be re- (d); effective, E-72-29, Sept. 29, 1972; e
quired to furnish the board with an alpha- fective Jan. 1, 1973; amended May 1, 1975
betical listing of all employees within the
appropriate unit as expeditiously as possi- &1'2.8. (Authorized by K.S.A. 75-432
ble,not to exceed 30 days after the filing of a (d)(4), 75-4327 (d); effective, E-72-29, Sep-
y g 29, 1972; effective Jan. 1, 1973; revoke.
petition for a certification election following Ma y 1, 1975.)
unit determination, unless otherwise
directed by the board or its agent. (Autho- 84-2.9. Procedure following filing e
rized by K.S.A. 75-4323 (d)(4); 75-4324; 75- petitions. (a) Petition; amendment or with
4327 (a), (b), (c), (d); 75-4328; effective, E- drawal—Any petition may be amended, i
72-29, Sept. 29, 1972; effective Jan. 1, 1973; whole or in part, or withdrawn by the pet]
amended May 1, 1975.) tioner at any time prior to the filing of a
84-24. Units. (a) Determining appro answer by any interested party. A petitio;
priate unit.(1)Any unit may consist of all of may be amended or withdrawn by the peti
tioner after the filing of an answer by an:
the employees of the public employer, or
arty any department, division, section or area,or on W�� tha board has acted thereon
party or combination thereof, if found to be y PProval of the board an
appropriate by the board, except as other- upon such conditions as the board ma
wise provided in the act or these rules. deem proper and just.
(2) In considering whether a unit is ap (b) Answer tition party shall file an e
propriate, the board shall consider the pro-
receipt to the petition within seven days thi
visions of K.S.A.75-4327(e)and whether the receipt thereof. The board may extend th
proposed unit of the public employees is a time for filing an answer upon showing o
distinct and homogeneous group, with sig-
good well be deemed assan admission b)
nificant problems which can be adjusted Y
without regard to the other public employ-
c)party to all allegations in the petition
ees of the public employer, and it may con- (c) Inuestition, the boar Investigation—Subsequent to the fil
sider the relationship of the proposed unit
ing of a petition, the boazd shall direct ar
to the total organizational pattern of the investigation of all questions conceroinl
public employer. Neither the extent to representation, including, if applicable
which public employees have been orga- whether the proof of interest requirement
nized by an employee organization nor the as set forth in the rules, has been met
desires of a particular group of public em- whether more than one employee ll of za-
ployees to be represented separately or by a lion seeks to represent some or all of the
particular employee organization shall be employees in the allegedly appropriate
controlling on the question of whether a unit; and whether there is opr ate ess
proposed unit is appropriate. (Authorized among the parties as to the appropriateness
by K.S.A. 75-4323 (d)(4); 75-4327 (b), (c); of the alleged unit.
effective, E-72-29, Sept 29, 1972; effective (d) Hearings—The board may direct a
Jan. 1, 1973; amended May 1, 1975.) hearing, pursuant to 84-2-2 (b), in which
event it or its agent shall prepare and cause
84.2.7. Petition for unit determination, to be served upon the parties a notice of
unit clarification and investigation or cer- hearing before the board or its agent at a
tification of employee organization. (a) Pe- time and place fixed therein. A copy of the
132 . _
T"
■
PROCEDURE 84.2.12
tition shall be served with the notice of manner as the board or its agent may direct,
Wring. (Authorized by K.S.A. 75-4323 and shall be conducted by a designated
(d)(4), 75-4327 (d); effective, E-72-29, Sept. agent of the board, whose determination of
29, 1972; effective Jan. 1, 1973; amended all questions arising shall be final, subject,
May 1, 1975.) however, to review by the board.
84.2.10. (Authorized by K.S.A. 75-4323 (2) Ballots shall be prepared and issued
by the board. Ballots shall contain the name
(d)(4), 754327 (d); effective, E-72-29, Sept of each representative and a choice of"no
29, 1972; effective Jan. 1, 1973; revoked representative."The place of priority on the
May 1, 1975.) ballot shall be determined by the chrono-
84.2.11. Elections; eligibility and con- logical filing or appearance on the dockets
ditions. (a) General provisions. (1) If the of the board but with the petitioner taking
board upon petition of an employee organi- first priority. In a run-off election, the place
nation,determines that said employee orga- of priority shall be determined by the se-
nization has furnished a valid showing of quence appearing on the ballot at the prior
interest,it shall order that such election be inclusive election.
conducted by such person or persons as may (3) Each party to the election shall be
be designated by the board. entitled to be represented by an equal
(2) All elections shall be held not later number of observers watching at each poll-
than 30 days from date of validation of the ing place. Observers shall be employees
- first submitted proof of interest or such eligible to vote,or in the case of employer's
other date as the board or its agent may observers, shall be non-supervisory person-
specify, at such times and places and upon nel, unless otherwise agreed to by all par-
- such terms or conditions as the board or its ties, or other appropriate persons.
agent may specify. (4) Prior to the commencement of the
(3) The employees eligible to vote shall election,the agent of the board shall desig-
be those on the payroll on the date of the nate the polling area and no electioneering
validation of proof of interest and who re- of any kind shall be permitted within this
main on the payroll on the date of the elec- area. Any violation of this rule by any party
lion. or its representative or agent may be
(4) The board or its agent shall furnish a grounds for setting aside the election.
list of names and addresses of all eligible (5) Any prospective voter may be chal-
employees in the appropriate unit, to all lenged for cause.
employee organizations submitting proof of (6) All employees whose names do not
interest, immediately upon validation of appear upon the list certified by the board
said proof of interest. as being a complete list of the employees
(5) A motion for intervention for purpose within the defined appropriate unit shall be
of representation on an election ballot at a challenged by the agent of the board.
certification election will not be entertained (7) A challenged voter shall be permitted
during the 10 days immediately preceding to vote but his ballot shall not be cast It
said election. shall instead be sealed in a separate, un-
(6) At least seven days prior to the elec- marked envelope under the supervision of -
lion the board shall cause a notice of elec- the agent of the board and then inserted in a
lion and sample ballot to be posted in con- special identifiable form envelope provided
spicuous areas where employees in the by the board for that purpose and returned
affected unit assemble. (Authorized by to the board.
K.S.A. 75-4323(d)(4),75-4327(d); effective, (8) In all elections a majority of the valid
E-72-29 Sept. 29, 1972; effective Jan. 1, votes cast shall determine the employee
1973; amended May 1, 1975.) representative designated or selected by .
the employees in the defined appropriate
84.2.12. Elections; procedure. (a) Gen- unit or the determination that no represent-
. erel provisions. (1)All elections shall be by .alive has been designated. A tally of ballots
secret ballot, at times, places, and in such shall be made by the board agent immedi-
133__
84$•13 PUBLIC EMPLOYEE RELATIONS BOARD
ately following the closing of the polls and a ployee organization representing one
tally sheet shall be furnished to all parties to more employee units prior to coming und.
the election. the provisions of K.S.A. 75-4321 et set
(9) Each party to the election shall be which agreements have continued and ai
permitted to observe the count of the bal- in force at the time of coming under ti
Iota' provisions of K.S.A. 75-4321 et seq.,
(10) All objections to a party's conduct or employer or the recognized employee org.
third person's conduct to the election shall nization may petition the board to cent
be, by a charge of unfair practice, filed with such organization as representative of en
the board within five days of the holding of ployees within the unit. The board, upon
the election and the board shall immedi- showing that such units petitioned for ar
ately issue such order as to effectuate the not in violation of the act, shall cause
purposes of the act. notice of its intent to certify said organiz
(11) All objections to the board's conduct tion to be posted in conspicuous places &
of an election must be filed within five days all employees within the affected unit in
of the holding of the same and the board less than 10 working days prior to makin
shall immediately issue such order as re- final determination. If no protest or count(
quired to effectuate the purposes of the act. petition is filed, the board shall certify th
(12) The board shall conduct a runoff employee organization as petitioner
election when an election in which the bal- (Authorized by K.S.A. 75-4323 (d)(4), 7:
lot provides for not less than three choices 4327(d); effective, E-72-29, Sept. 29, 197;
(i.e., at least two representatives and no effective Jan. 1, 1973; amended May
1 representative) results in no choice receiv- 1975.)
ing a majority of the valid ballots cast.
(13) The ballot in the runoff election ediato 4. Mediation and fact-finding. (c
shall provide for a selection between the Mediator. (1) Any information disclosed t
two choices receiving the largest and sec- the mediator in the performance of hi
• and largest number of votes. duties shall not be divulged unless aI
(14) The board shall conduct runoff elec- proved by all parties involved. All file lions as expeditiously as possible not to records,reports,documents, or other paper
exceed 30 days following the first election received or prepared by the mediator shai
unless otherwise ordered by the board or its be classified as confidential and not as
agent. (Authorized by K.S.A. 75-4323 (d)(4), public record. Such matters shall not b.
i 75-4327 (d); effective, E-72-29, Sept. 29, disclosed to anyone without the prior con
1 1972; effective Jan. 1, 1973; amended Ma y sent of the board and all parties involve:
1, 1975.) (2) The mediator shall not produce an.
84-2-13. Certification of election re- gard oe any mediation conducted by him or
sults. (a) Certification—If no objections are behalf of the party to any case pending it
filed within the time set forth above, if the any proceeding before any court, board, in
challenged ballots are insufficient in vestigatory body, arbitrator, or fact-finde
number to affect the result of the election, without the written consent of the boar(
and if no runoff election is to be held, the and the party furnishing such information
board or its agent shall forthwith issue to the (b) Mediation meetings.(1)The mediator
parties a certification of the results of the may hold separate or joint meetings witl
election, including certification of repre- the parties or their representatives, anc
sentative, where appropriate. All employee such meetings shall be private and non.
organizations shall be certified as of the last public.Such meetings shall be conducted al
day of the election. such times and places agreed to by the me
• (b) Pre-existing contracts—All govern- diator and the parties.
mental sub-divisions other than the state (2) The mediator shall, either orally or in
and its agencies which have entered into writing, report the status of his mediation
formal written agreements with an em- efforts.
134
•
•
PROCEDURE 84.2.15
(3) The mediator shall report in writing (e) Suggested dates, time and place for
the final settlement of the dispute, to the the conduct of the hearing, if the board is
(Cd requested to appoint one of its members or
(c) Fact-finding. (1) Any person, broadly staff members as the arbitrator.
representative of the public, who has been (f) If a joint request, it shall contain a
selected by the board for listing on a regis- statement as to whether request is for advi-
ser of fact-finders, may act as a fact-finder. sory or binding arbitration.
(2) The public employers and employee (c) Board action. (1) If the request to ini-
organizations may submit in writing, from tiate arbitration is filed by only one party,
time to time, the names of their proposed the board or its agent shall immediately
fact-finders to the board. (Authorized by contact the other party to the dispute in
K.S.A. 75-4323 (d)(4); 75-4327 (c), (d), (e); inquiry as to its acquiescence to arbitration.
75-4332 (b), (c), (d), (e); 75-4334 (a); effec- If the latter opposes the right of the initiat-
tive, E-72-29, Sept. 29, 1972; effective Jan. ing party to proceed to arbitration,the board
1, 1973; amended May 1, 1975.) thereupon advise
hall of act initiation a
further on theea
84.245. Arbitration. (a) General provi- quest.
Lions.This section governs the general pro- (2) If arbitration has been jointly initiated
cedure relating to the arbitration proceed- or acquiesced in, the board shall, as re-
ings and designation of arbitrators, pursuant quested or agreed either appoint the arbi-
to K.S.A. 75-4330(b). The policy of the state trator or arbitrators,or submit to the parties
being primarily to promote the prompt, a panel of individuals for their considera-
peaceful and just settlement of labor dis- lion in the selection of an arbitrator or board
putes arising from the interpretation or ap- of arbitration.
plication of a memorandum of agreement (3) The board shall also obtain a written
affecting terms and conditions of employ- agreement of the parties as to whether the
ment,the board may act or name arbitrators arbitration shall be binding or advisory.
for the final determination of such disputes. (d) Arbitrators—Who may act. (1) The
(b) Request to initiate arbitration. (1) A full board may act as a board of arbitration or
request that the board initiate arbitration it may,by order,appoint one of its members
shall be in writing and signed by the party or staff members to act as an arbitrator in a
or parties filing the request. If not a joint particular dispute. When so acting, neither
request, the party filing same, at the same any member of the board nor any member of
time,shall cause a copy thereof to be sent to the staff shall receive any compensation
the other party. from the parties in the performance of such
(2) Contents of the request should in- function.
elude:(a) If a joint request, it shall contain a (2) The board shall appoint only compe-
statement as to the issue or issues in dis- tent,impartial and disinterested persons to
pute, or if a request by only one of the act as arbitrators or to be included in a panel
parties,a statement as to the alleged issue or of arbitrators. Such persons, when acting as
issues in dispute. arbitrators, shall be compensated by the
(b) A copy of the memorandum of agree- parties, for fees and expenses, at such sum
ment in effect. mutually agreed upon by the parties and the -
(c) A request that the board either act as arbitrator or abritrators. - -------
an arbitration board,or appoint either one of (e) Proceedings before the arbitrator— — •
its members or staff members or an individ- Proceedings before the arbitrator shall be as
ual not in the employ of the board, for their deemed appropriate by the arbitrator sub-
consideration in the selection of an arbitra- ject to board approval.
tor or board of arbitration. (f) Award and report—Any arbitrator ap-
(d) The names, addresses and phone pointed by the board or selected by the - ----— ...2-.
numbers of the principal representatives of parties from a panel designated by the -
, the parties involved. board shall after he has submitted his award
ii..._
135
. ?y_•
1
7
84.3.1 PUBLIC EMPLOYEE RELATIONS BOARD
to the parties, file a copy thereof with the plaint may be amended, in whole or in part,
board, as well as a report reflecting a break- by the complainant at any time prior to the
1 down of his fees and expenses, if any. filing of an answer by the respondent. A
(g) Registry—The public employers and complaint may be amended by the corn-
employee organizations, from time to time, plainant with approval of the board or its
submit in writing the names of their pro- agent after an answer has been filed by the
posed arbitrators to the board. (Authorized respondent at any lime before the board's
by K.S.A. 75-4323 (d)(4), 75-4330 (b); effec- final decision or order.
Live, E-72-29, Sept. 29, 1972; effective Jan. (f) Amendment of answer; following
I 1, 1973; amended May 1, 1975.) amendment of complaint—In any case
where a complaint has been amended, the
Article 3.—PROHIBITED PRACTICES respondent shall have an opportunity to
amend his answer within such period as
84.3.1. Complaints.(a) Who may file—A may be fixed by the board.
•
complaint that any public employee, em- (g) Withdrawal of complaint—Through
, ployee organization or public employer has written notice served on the board, a com-
,' j engaged in or is engaging in any prohibited plaint or any part thereof may be withdrawn
practice under the act may be filed by a at any time. (Authorized by K.S.A. 754323
1 public employee, a group of public em- (d)(4); 754334 (b), (d); effective, E-72-29,
ployees, an employee organization or a Sept. 29, 1972; effective Jan. 1, 1973;
i public employer, any of whom may amended May 1, 1975.)
1 • hereafter be referred to as the party filing 84.3-2. Hearing notice. After a corn-
, the complaint. plaint has been filed, if it appears to the
(b) and iling—Complaint forms board, or its agent, that formal proceedings
i . Form d f
I shall be provided by the board.The original in respect thereto should be instituted, the
.1 and five copies of the complaint shall be board, or any member thereof, or its agent
filed with the board pursuant to 84-2-1 (b). shall serve on each party a notice of hearing
(c) Answer to complaint—Contents— pursuant to 84-2-2b. (Authorized by K.S.A.
1 The answer shall contain the following: (1) 754323 (d), (4); 75-4334 (b), (d); effective,
A specific admission, denial, or explanation E-72-29, Sept. 29, 1972; effective Jan. 1,
of each allegation of the complaint, or if the 1973; amended May 1, 1975.)
filing party is without knowledge thereof, 843.3. Record of proceedings before
he shall so state to that effect, such state-
ment operating as a denial. Admissions or the board; prohibited practice cases. (a)
denials may be to all or part of an allegation General provisions. (1) The record of the
' but shall fairly meet the substance of the
proceedings before the board in prohibited
allegation. practice cases shall consist of the complaint
I• (2) A specific detailed statement of any or amended complaint, any other pleadings,
i affirmative defense. notices of hearings, motions, orders, steno-
(3) A clear and concise statement of the graphic report exhibits, depositions, find-
ings of fa
facts and matters of law relied upon. Any and order conclusions of law, and decision
1 allegation in the complaint not specifically
denied in the answer, unless the respon- (2) If a prohibited practice proceeding is
dent shall state in the answer that the re-
predicated in whole or in part upon a prior
spondent is without knowledge, and the representation proceeding, the record of
reasons he is without knowledge, shall be such prior representation proceeding shall
deemed admitted to be true and may be so be deemed a part of the record in the pro-
found by the board. hibited practice proceeding for all pur-
(d) Answer to complaint. (1) The party poses. (Authorized by K.S.A. 75 4323, 75•1 named in the complaint shall file, pursuant 4334; effective, E-72-29, Sept. 29, 1972;
to 84-2-1(b), a written answer within seven effective Jan. 1, 1973.)
days after service of the complaint. 84.34. Joinder of parties. All persons
(e) Amendment to complaint—Any com- alleged to have engaged in any unfair prac-
136
a
3
LOCAL GOVERNMENT PROCEDURES 84-4-2
Hoes may be joined as parties, whether cedures are substantially equivalent to the
jointly,severally,or in the alternative,and a provisions and procedures set forth in the
decision may be rendered against one or act and these rules. Applications under this
more of them upon all of the evidence, section shall be in writing and signed by the
without regard to the party by or against governing body, or its authorized repre-
whom such evidence has been introduced. sentative. Such an application may be filed
No proceedings will be dismissed because at any time after the applicant has given
of nonjoinder or misjoinder of parties. Upon public notice of its intention to so file and
motion of any party or upon motion of the may be withdrawn by the applicant at any
board or its hearing examiner, parties may time before disposition of it by the board
be added, dropped or substituted at any and after giving public notice of such with-
state of the proceedings,upon such terms as drawal. Such public notice shall be by
may be deemed just and proper. Such mo- posting in a conspicuous place at suitable
tions must be made at or prior to the first offices of the applicant for not less than five
hearing in any such proceeding unless good working days and inclusion in a public ad-
and sufficient cause is shown why it could vertisement in a newspaper of general cir-
not have been made at such time. Failure to culation in the area of the applicant for not
so move shall be deemed a waiver of all less than one day.
objections to a nonjoinder or misjoinder. (b) Contents of application—An applica-
(Authorized by K.S.A. 754323, 75-4327, 75- tion for determination that local provisions
4332, 75-4334; effective, E-72-29, Sept. 29, and procedures are substantially equivalent
1972; effective Jan. 1, 1973; amended May to the provisions and procedures set forth in
1, 1975. the act and these rules shall contain the
84.3.5. Findings of fact; conclusions of following: (1) Name and address of the ap-
law; recommendation. Findings of fact, plicant.
conclusions of law, and recommendations (2) A copy of the local law, ordinance or
shall be issued pursuant to 84-2-2(c)(7)(a). resolution adopted or amended by the leg-
islative body of the applicant.
4327 (c) by K.S.A. 32 (b), (d),(d), 75; (3) If an amendment, a statement as to
4327 (4)(a), ((b); effective,e 43e, - 2 9, Sept.( 9, whether the ordinance or resolution to be
75 4334(a), (b); effective, E-72-29, ep 29, amended has been determined to be sub-
1972; effective Jan. 1, 1973; amended May
1, 1975.) stantially equivalent to the provisions and
procedures set forth in the Act and these
8444. Strikes or lockouts. In the case of rules, and if so, whether the board has de-
an alleged violation of K.S.A. 75-4333 (b)(8) termined that the continuing implementa-
or K.S.A. 754333 (c)(5), the board or its tion of such ordinance or resolution was not
agent may handle the case as expeditiously substantially equivalent to such provisions
as possible disregarding normal time limi- and procedures.
tations. (Authorized by K.S.A. 75-4323 (4) A copy of the public notice announc-
(d)(4), 75-4334 (a); effective E-72-29, Sept. ing the application and a description of the
29, 1972; effective Jan. 1, 1973; amended manner and date of its publication.
May 1, 1975.) (5) The names and addresses of any em-
ployee organizations which have been cer-
tified or recognized to represent any public
Article 4.—LOCAL GOVERNMENT employees of the applicant.
PROCEDURES (6) The names and addresses of any other
84.4.1. Application for approval. (a) Fil- employee organizations which claim to
ing--An application may be submitted by a represent
(Authorized employees
b yl K.S.A.o 75-4323
government which, acting through its (d)(4), 754335; effective, E-72-29, Sept 29,
legislative body, has adopted or amended 1972; effective Jan. 1, 1973; amended May
by ordinance or resolution its own provi-
sions and procedures, for a determination
by the board that such provisions and pro- 84.4-2; Objections. Objections to the
137
I
84-4.3 PUBLIC EMPLOYEE RELATIONS BOARD
granting of the application may be filed by tion, whichever is later. The provisions
any public employee or employee organi- procedures must also provide that the I
-;' j' zation within 15 working days after receipt govemment will
by the board of the application; _ Sloc l pros notice at I
I' however, that the board may excuse rthela a 45 days prior of to the effective procedures h ,
filing of objections because of extraordinary days Prior to the pffective date they
circumstances. (Authorized by K.S.A. 75- able offices of tscown for not place
ess than
;;i 4323 (d)(4), 75-4335; effective, E-72-29, working days and inclusion in a public
Sept. 29, 1972; effective Jan. 1, 1973; vertisement in a local newspaper of gen.
amended May 1, 1975.) circulation for not less than one day.
84.4.3. Investigation and hearing. (a) (2) To be approved, the provisions .
General provisions—(1) The board shall
procedures established by a local govt
direct an investigation of any questions ment pursuant to K.S.A. 75-4335 must F
raised by the application and such objec- vide, inter alia, that no amendment shall
tions to the application as may be filed with effective until the board finds that the F
n the board. In conducting such an investiga- visions and procedures as amended,
t
tion, the Board or its agent may require substantially equivalent to the provisi
i affidavits or direct a hearing. If a hearing is
directed,the board or its agent shall prepare and procedures ul . thori a by K.S.A. 75
, and cause to be served upon the applicant th ese rules.
(d)(4), 75-4335; effective E-72-29, Sept. :
and any interested party a notice of hearing 1972; effective Jan. 1, 1973; amended M
' before the board or its hearing officer at a 1' 1975.)
time and place fixed therein.
(2) In the event a hearing is directed, the 84-4'6. Local regulations. Upon e
provisions of section hearing of these rules proval of the provisions and procedures i
shall govern. (Authorized by K.S.A. 75-4323 tablished by a local local pursuant
pc
(d)(4), 75-4335; effective, E-72-29, Sept. 29, K.S.A.the duties the local agency shall
1972; effective Jan. 1, 1973; amended May form tl'e duties set forth in K.S.A. 75-43!
j 1, 1975.) y and K.S.A. 75 4328. Within 45 days from d agency mu
8444. Determination by the board. adopt rules ofrproc procedure substant al
After receipt of a report and recommenda- equivalent to K.S.A. 75-4321 et seq.,and tl
tions from its agent and of the record of any regulations adopted by the public employe
hearing which may have been held,or upon relations board. (Authorized by K.S.A. 71
the completion of its own investigation, the 4323 (d)(4), 75-4335; effective, E-72-2!
board shall decide the issues and make such Sept. 29, 1972; effective Jan. 1, 197:
disposition of the matter as it deems appro- amended May 1, 1975.)
priate. (Authorized by K.S.A. 75-4323, 75-
4335; effective, E-72-29, Sept. 29, 1972; ef- x-7. Procedures for the review of in,
fective Jan. 1, 1973.) plemementation of local government proce
84.4.5. Termination or amendment of dares pursuant to K.S.A. 754335. (a) Gen
procedures by a local government. (a) Gen-
eral ment has not adopted fed that a loco
eral provisions—(1) To be approved, the ations�within45 days after the eboard ha
provisions and procedures established by a determined that its provisions and proce
local government pursuant to K.S.A. 75- dures are substantially equivalent to the
4335 must provide, inter alia, that termina- provisions and procedures set forth in the
tion of such procedures shall become effec- act and these rules, shall be prima facie
tive no sooner than 60 days after the filing evidence that the local government has not
with the board of a duly certified copy of an implemented its provisions and procedures
ordinance or resolution of such local gov- in a manner substantially equivalent to the
ernment terminating the applicability of the provisions and procedures as set forth in the
local provisions and procedures, or on the act and these rules.
date specified in the ordinance or resolu- (b) Petition; filing—A petition to review
138
aiiiiiiiiiiiiiSiiiiiiir
IMPASSE 81.5.1
nd Abe question of whether provisions and all parties in the proceeding. Supporting
al procedures of a local government are being affidavits establishing the basis for the mo-
he implemented in a manner substantially lion may be required by the board. If inter-
•st - equivalent to the provisions and procedures vention is permitted, the public employee,
'f, set forth in the act and these rules (herein- employee organization or public employer
after called a petition for review) may be becomes a party for all purposes.
filed by any public employee or employee (f) Notice of pending petitions—Upon
organization. Petitions under this section the filing of a petition under this part,notice
II shall be in writing upon forms to be pro- thereof, including the date when such peti-
vided by the board. The original and five lion was filed and the name and address of
d copies of the petition shall be filed with the petition and the local government involved,
board within 60 days after the act or in shall be posted by an agent of the board on
} action complained of occurred or failed to the public docket maintained by the board
e occur. Petition forms will be supplied by at its principal office.
the board upon request. The petition may (g) Conduct of hearing—The conduct of
e be withdrawn any time prior to action by hearings under this section shall follow the
the board. (1) Each party shall file an an- standard hearing procedures as provided in
1 swer to the petition for review within 10 section 84-2-2.
3 - days after receipt thereof. (h) Determination by the board—After
(c) Time for filing of petitions—A peti- receipt of a report and recommendations
tion for review may be filed at any time. from its agent and of the record of proceed-
(d) Contents of petitions for review—A ings of any hearing which may have been
petition for review shall contain the follow- held, or upon the completion of its own
• ing: (1) The name, affiliation, if any, and investigation, the board shall decide the
• address of petitioner. (2) The name of the issues and make such disposition of the
local government involved. (3) The names matter as it deems appropriate. (Authorized .
and addresses of any other employee orga- by K.S.A. 75-4323 (d)(4), 75-4335; effective
nizations which claim to represent any E-72-29, Sept. 29, 1972; effective Jan. 1,
public employees under the jurisdiction of 1973; amended May 1, 1975.)
the local government involved. (4) A clear Article 5.—IMPASSE
and concise statement of the grounds for
alleging that the local government provi- 81.5.1. Impasse. (a) Petition;filing—In
sions and procedures, as implemented, are the event of an impasse, a request for as-
not substantially equivalent to the provi- sistance of the board, may be filed with the
sions and procedures set forth in the act and board by an employee organization or pub-
these rules. lic employer, showing whether a joint or
(e) Intervention—Any public employee, single party request is being made. (Autho-
employee organization or public employer rized by K.S.A. 754323 (d)(4); 75-4332
may be permitted, in the discretion of the (a),(b); effective, E-72-29, Sept. 29, 1972; ---
board, to intervene in a proceeding. The effective Jan. 1, 1973; amended May 1,
intervenor must make a motion on notice to 1975.) -
139