Kansas Board of Regents v. Pittsburg State University Chapter

McFarland, J.:

I join in the concurring and dissenting opinion of Schroeder, C.J. I believe, however, some additional comments are appropriate.

The Public Employer-Employee Relations Act (K.S.A. 75-4321 et seq.) was Senate Bill 333 enacted in 1971, to become effective March 1, 1972. “A Comparison of SB333, Sen. Sub. HB1573 of 1970, and The ACIR Bill on Public Employer-Employee Relations” prepared by legislative staff personnel for consideration of Senate Bill 333, provides in pertinent part:

“SB333 is based on the Senate Substitute to HB1573, as amended on third reading and passed by the senate in 1970. Sen. Sub. HB1573, in turn, was based on a preliminary draft of a bill prepared by the U.S. Advisory Commission on Intergovernmental Relations. For the Commission report, adopted September, 1969 but later printed, see ‘Labor-Management Policies for State and Local Government,’ A-35, 263 pages. The finally drafted bill is included in ACIR’s report, ‘New Proposals for 1971 — ACIR State Legislative Program,’ November, 1970.
“Following is comparison of the three proposals. References to HB1573 refers to ‘Sen. Sub. HB1573 Am. SCW.’ Reference to ACIR refers to the ACIR ‘meet and confer’ bill in the publication noted above. This comparison is supplemental to the summary to SB333, attached.
“Generally, the provisions of SB333 are substantially identical to HB1573 and the ACIR proposed bill except as noted below.
*838“(s) defines ‘conditions of employment’; HB1573 and ACIR would permit employment relations as to ‘wages, hours, and other terms and conditions of employment’ without defining these terms. (Emphasis supplied.)

The legislative staff summary referred to above, states in pertinent part:

“Section 6 specifies certain traditional public employer rights under the act. This key section prevents modification of such employer rights as to ‘determine the methods, means and personnel by which operations are to be carried on.’ ” (Emphasis supplied.)

Thus we see the PEER Act as enacted was modelled after the 1970 HB 1573 which in turn was modelled after the ACIR proposed bill with certain significant changes. Rather than define conditions of employment by the open-ended phrase “wages, hours, and other terms and conditions of employment,” the legislature chose the closed-in precise definition set forth in K.S.A. 75-4322(t) as follows:

“ ‘Conditions of employment’ means salaries, wages, hours of work, vacation allowances, sick and injury leave, number of holidays, retirement benefits, insurance benefits, prepaid legal service benefits [added in 1977], wearing apparel, premium pay for overtime, shift differential pay, jury duty and grievance procedures, but nothing in this act shall authorize the adjustment or change of such matters which have been fixed by statute or by the constitution of this state.”

The 1971 legislature again departed from its model for the legislation by specifically providing in K.S.A. 75-4326:

“Nothing in this act is intended to circumscribe or modify the existing right of a public employer to:
“(a) Direct the work of its employees;
“(b) Hire, promote, demote, transfer, assign and retain employees in positions within the public agency;
“(c) Suspend or discharge employees for proper cause;
“(d) Maintain the efficiency of governmental operation;
“(e) Relieve employees from duties because of lack of work or for other legitimate reasons;
“(f) Take actions as may be necessary to carry out the mission of the agency in emergencies; and
“(g) Determine the methods, means and personnel by which operations are to be carried on.” (Emphasis supplied.)

K.S.A. 75-4330(a) provides in relevant part:

“The scope of a memorandum of agreement may extend to all matters relating to conditions of employment, except proposals relating to (1) any subject preempted by federal or state law or by a municipal ordinance passed under the provisions of *839section 5 of article 12 of the Kansas constitution, (2) public employee rights defined in K.S.A. 75-4324, (3) public employer rights defined in K.S.A. 75-4326, or (4) the authority and power of any civil service commission, personnel board, personnel agency or its agents established by statute, ordinance or special act to conduct and grade merit examinations and to rate candidates in the order of their relative excellence, from which appointments or promotions may be made to positions in the competitive division of the classified service of the public employer served by such civil service commission or personnel board. Any memorandum of agreement relating to conditions of employment entered into may be executed for a maximum period of three (3) years, notwithstanding the provisions of the cash basis law as contained in K.S.A. 10-1102 et seq. and the budget law as contained in K.S.A. 79-2925 et seq.” (Emphasis supplied.)

Numerous representatives of public employers and labor organizations testified before the appropriate legislative committees relative to SB 333. E. A. Mosher, Executive Director, League of Kansas Municipalities, testified inter alia:

“In summary, we think SB333 is a good bill. It reasonably balances both the employer and employee interests. We would write it differently if we had the option . . . and I knoio union representatives would write it differently too. But it is a comprehensive bill, to which changes can be made in the future as the need arises. Perhaps most important, we think it preserves and protects the public interest which is the only reason why government exists. We urge its favorable consideration, this session.” (Emphasis supplied.)

SB 333 was a compromise bill which appears from the legislative history to have had, at least as to sections we are involved with, the support of both labor organizations and the public employers. The legislature, as noted by Mr. Mosher, struck a balance between the competing interests. I believe there is no room in the PEER Act for administration or judicial redetermination of that balance. Yet that is precisely what the PERB decision, as affirmed by the majority of this court, has done by adoption of the “balancing test.” Such a test would have been appropriate had the original version of the bill been enacted which permitted negotiations on the undefined terms “wages, hours, and other terms and conditions of employment” and did not reserve to the public employees a precise list of traditional public employee rights.

As noted in the majority opinion, the Professional Negotiations Act (K.S.A. 72-5413 et seq.) relative to public school teachers as originally enacted in 1970 required negotiation of “terms and conditions of professional service” without providing a definition of the term. In National Education Association v. Board of *840Education, 212 Kan. 741, 512 P.2d 426 (1973) (commonly referred to as Shawnee Mission) this court, of necessity, established a balancing test (impact) in order to make the general undefined term workable. In NEA-Topeka, Inc. v. U.S.D. No. 501, 225 Kan. 445, 592 P.2d 93 (1979), the history of the Professional Negotiations Act up to the subsequent amendments is set forth in detail. In summary, after the Shawnee Mission case the 1977 legislature defined terms and conditions of professional service as follows in K.S.A. 72-5413:

“ ‘(1) “Terms and conditions of professional service” means salaries and wages, hours and amounts of work, vacation allowance, holiday, sick and other leave, number of holidays, retirement, insurance benefits, wearing apparel, pay for overtime, jury duty, grievance procedure, disciplinary procedure, resignations, termination of contracts, matters which have a greater direct impact on the well-being of the individual professional employee than on the operation of the school system in the school district or of the community junior college and such other matters as the parties mutually agree upon as properly related to professional service. Nothing in this act, or the act of which this section is amendatory, shall authorize the adjustment or change of such matters which have been fixed by statute or by the constitution of this state.’ ” 225 Kan. at 449.

As noted in NEA-Topeka, Inc. v. U.S.D. No. 501, this amendment in essence made statutory law out of the judicial determination in Shawnee Mission, retaining the impact test as an additional item of negotiation.

In 1979 litigation on the Professional Negotiations Act occupied a substantial portion of this court’s calendar. Teachers’ organizations and school boards across the state were not negotiating, they were litigating what was or was not mandatorily negotiable under the “impact test.” Neither the teachers’ organizations nor the school boards were satisfied with the state of affairs. In 1980 modifications of the existing law were sought by both sides. Extensive testimony was heard by the appropriate legislative committees. Illustrative thereof are the following excerpts:

Executive Director of NEA of Shawnee Mission:

“As you are all aware, the Supreme Court of this state handed down several decisions last year which have the potential for altering meaningful negotiations conducted to date in districts throughout the state. I state that these decisions have the potential for altering because, despite the fact that we think the Court has in fact altered the law as passed by this legislature in 1977, the Court rulings still provide that in most areas of contract negotiations, the parties were left with permission to negotiate. . . .
*841“. . . First, we would ask that the legislature amend the Negotiations Act to include a scope of bargaining which would encompass all of the areas negotiated in contracts prior to the Supreme Court ruling as mandatory subjects for negotiations.”

Kansas NEA:

“K-NEA believes Senate Bill 539 is deficient in two critical areas — scope of negotiations and impasse resolution. The law, as enacted in 1970, defined scope as ‘terms and conditions of professional] service.’ There were problems in determining scope in some USD’s, but those decisions were jointly arrived at and the agreements were beginning to reflect the parties’ thinking on what properly should be included in the collective agreement.
“The 1977 Legislature incorporated a listing of negotiable subjects. K-NEA lobbied to retain the broader ‘terms and conditions of professional service.’ Subsequently the state supreme court made an extensive series of rulings which we believe run counter to the express language of the law and the intent of the Legislature when it spoke to the issue in 1970 and 1977.
“We ask that you amend Senate Bill 539 to include the language set forth in the attached balloon of Section 1 (1). Our proposal will restore the definition to its breadth prior to the court decisions and build in supplemental contracts, which, because of the supplemental contract law, are not covered by the negotiation law.”

Lee Quisenberry of K-NEA:

“The so-called ‘impact’ test, shown as a deletion on lines 125-129, is proposed for elimination, and that elimination is agreeable to KNEA if the topics gained through that test thus far are included. These topics are shown on lines 129-142, and include all topics previously held to be negotiable by the Supreme Court as a result of the ‘impact’ test except one — in-service training.”

M. A. McGhehey, Executive Director Kansas Association of School Boards:

“4. Impact test. When the impact test was amended out of the bill, the first three lines on p. 4 wei'e noti-emoved, and if the impact test is left out, these thx-ee lines have no meaning and should also be deleted.
“6. Another impact test. The amendment to lines 143 through 153 establish another impact test. We recommend deletion of the amendment, and the restoration of the pi'esent language of the law. It is a vague and ambiguous provision that will spawn litigation without end, pennitting negotiation of statutes and the constitution itself.
“The impact test was removed because of the belief that it was one of the principal causes of litigation. When the Kansas Supreme Court was heai'ing one of the early negotiations cases, Chiefjustice Schx-oeder asked the question of the attorneys involved as to whether they regarded the negotiations law as the lawyers’ full employment statute. There was a faint smile on both the lawyei's’ faces and no disclaimer. To whatever extent the legislature can limit the extent *842of litigation will . . . certainly be beneficial to the public interest.” (Emphasis supplied.)

The 1980 legislature heard the testimony and, in balancing the respective interests, expanded the list of mandatorily negotiable items but deleted the impact test. (K.S.A. 72-5413[Z].) There have been no more cases before the court on the scope of professional negotiation. Presumably the teachers’ organizations and the school boards are now accomplishing the purposes of the act— negotiation rather than litigation on what topics are mandatorily negotiable.

It is indeed ironic that after the balancing test concept has been tried and repudiated by the legislature in public school teacher negotiations, it has, like the legendary phoenix, arisen from its ashes and been engrafted onto the Public Employer-Employee Relations Act by PERB with the blessing of the majority of this court. The possibility of endless crippling litigation from utilization of the balancing test in PEER negotiations is far greater than in the Professional Negotiations Act. Public school teachers are a relatively homogeneous group as far as their jobs are concerned. PEER covers a vast spectrum of jobs— including university teachers, prison guards, food service workers, road maintenance crews and health care workers. The majority opinion states:

“For example, salaries, wages, hours of work, retirement benefits, insurance benefits and grievance procedures are not single-faceted categories, with only one commonly accepted and easily understood component. The subjects are, in fact, multifaceted and depend for their specifics upon the particular type of employment involved.”

Under this rationale an item declared mandatorily negotiable in litigation involving university faculty might not be mandatorily negotiable in litigation involving firemen. Presumably the balancing test must be applied separately to each claimed item in each job category. Litigation on a particular item resolves the issue only as to the particular group of employees involved.

I turn now to another area of concern. For convenience, K.S.A. 75-4322(t) and 75-4326 are repeated as follows:

“(f) ‘Conditions of employment’ means salaries, wages, hours of work, vacation allowances, sick and injury leave, number of holidays, retirement benefits, insurance benefits, prepaid legal service benefits [added in 1977], wearing apparel, premium pay for overtime, shift differential pay, jury duty and grievance procedures, but nothing in this act shall authorize the adjustment or change of *843such matters which have been fixed by statute or by the constitution of this state.”

K.S.A. 75-4326:

“Nothing in this act is intended to circumscribe or modify the existing right of a public employer to:
“(a) Direct the work of its employees;
“(b) Hire, promote, demote, transfer, assign and retain employees in positions within the public agency;
“(c) Suspend or discharge employees for proper cause;
“(d) Maintain the efficiency of governmental operation;
“(e) Relieve employees from duties because of lack of work or for other legitimate reasons;
“(f) Take actions as may be necessary to carry out the mission of the agency in emergencies; and
“(g) Determine the methods, means and personnel by which operations are to be carried on.”

Each item in K.S.A. 75-4322 relates directly to the fundamental nuts and bolts of a public employee’s job. Wholly absent from the list are items relating to how the job is obtained, training, promotions, layoffs, firing, transfers and how or what work is to be performed. K.S.A. 75-4326 reserves these areas to the public employers. This is the balance struck by the legislature. There is a logical reason for this. The act applies uniformly to “public employees,” defined by K.S.A. 75-4322(a) as follows:

“ ‘Public employee’ means any person employed by any public agency, except those persons classed as supervisory employees, professional employees of school districts, as defined by subsection (c) of K.S.A. 72-5413, elected and management officials, and confidential employees.”

Obviously many more individuals than employees of the State of Kansas are involved. As for state employees, over half of all state employees, excluding college students employed by the state at universities, are classified employees as that term is defined by the Civil Service Act (K.S.A. 75-2925 et seq.). The purpose of the act is set forth in K.S.A. 1982 Supp. 75-2925 as follows:

“The general purpose of this act is to establish a system of personnel administration that meets the social, economic and program needs of the people of the state of Kansas as these needs now or in the future may be established. This system shall provide means to recruit, select, develop and maintain an effective and responsible work force and shall include policies and procedures for employee hiring and advancement, training and career development, job classification, salary administration, retirement, fringe benefits, discipline, discharge and *844other related activities. All personnel administration actions regarding employees in the state classified service shall be made without regard to race, national origin or ancestry, religion, political affiliation, or other non-merit factors, and shall not be based on sex, age or physical disability except where sex, age or physical requirements constitute a bona fide occupational qualification necessary to proper and efficient administration. Personnel administration actions shall be based on merit and fitness to perform the work required and shall provide fair and equal opportunity for public service.”

The Civil Service Act details all aspects of hiring, layoffs, dismissals, demotions, promotions, transfers, leaves of absence, etc. Particularly illuminating for our purposes is K.S.A. 1982 Supp. 75-2935(2) as follows:

“(2) The classified service comprises all positions now existing or hereafter created which are not included in the unclassified service. Appointments in the classified service shall be made according to merit and fitness from eligible lists prepared upon the basis of examination which so far as practicable shall be competitive. No person shall be appointed, promoted, reduced or discharged as an officer, clerk, employee or laborer in the classified service in any manner or by any means other than those prescribed in the Kansas civil service act and the rules adopted in accordance therewith.” (Emphasis supplied.)

The university faculty herein are designated as a part of the unclassified service (K.S.A. 1982 Supp. 75-2935[ 1 ][/]). Nevertheless the PEER Act applied uniformly to all organizations representing state employees — whether said employees be classified or unclassified. Does the majority intend to apply its beloved balancing test where classified employees are concerned and thereby let PERB override the Civil Service Board which is statutorily charged with complete control in its field? Or does the majority intend to discriminate against the classified employees by limiting its balancing test to unclassified employees? These are interesting questions which serve to point out the fallacy of the majority’s position.

Some reference must be made to another portion of the rationale utilized by the majority to shore up its adoption of the balancing test. The majority states:

“PERB has been an active state agency since its creation by the legislature in 1971. Doubtless it has faced prior challenges as to what is or is not negotiable between public employers and public employee representatives, and has resolved such challenges by using the ‘significantly related’ test. If the legislature in 1977 had desired to curtail the use of such a test, or to have made clearer the restrictions on negotiability urged by appellants, it could have done so.”

There is nothing in the record to indicate whether or not the *845balancing test has been previously utilized by PERB, let alone whether the legislature was cognizant of such usage. There have been no Kansas appellate cases wherein PERB’s utilization of the balancing test was at issue or even mentioned. The majority apparently believes that a first-time challenge to a 13-year-old statute is without merit simply because no one else had previously raised the issue. That is a novel proposition.

Without adding further verbiage to what, in composite, is a very lengthy opinion (majority plus two dissents), I would hold:

1. The balancing test is inappropriate to the PEER scope of negotiations.

2. PERB erred in finding the subjects of salary generation, out-of-state travel, promotions, summer employment, tenure, retrenchment, and personnel files were mandatorily negotiable.

3. PERB did not err in concluding the subject of salary allocation was mandatorily negotiable in limited form.