National Ed. Association-Topeka, Inc. v. USD 501, Shawnee County

• Decision Date: 24 February 1979
• Docket Number: INC,NEA-TOPEK,ASSOCIATION-TOPEK,No. 50155,50155
• Parties: , 101 L.R.R.M. (BNA) 2611 NATIONAL EDUCATION, a corporation, Appellee, v. USD 501, SHAWNEE COUNTY, Kansas, Appellant. TOPEKA BOARD OF EDUCATION, UNIFIED SCHOOL DISTRICT NO. 501, Shawnee County, Kansas, Appellant, v., et al., Appellees.
• Court: Kansas Supreme Court

Page 93

592 P.2d 93

225 Kan. 445, 101 L.R.R.M. (BNA) 2611

NATIONAL EDUCATION ASSOCIATION-TOPEKA, INC., a corporation, Appellee, v. USD 501, SHAWNEE COUNTY, Kansas, Appellant.

TOPEKA BOARD OF EDUCATION, UNIFIED SCHOOL DISTRICT NO. 501, Shawnee County, Kansas, Appellant, v. NEA-TOPEKA, INC., et al., Appellees.

No. 50155.

Supreme Court of Kansas.

Feb. 24, 1979.

Syllabus by the Court

1. By enacting K.S.A.1978 Supp. 72-5413(L ), the legislature made statutory law out of the judicial determination of the scope of professional negotiations set forth in National Education Association v. Board of Education, 212 Kan. 741, 512 P.2d 426 (1973) (commonly referred to as Shawnee Mission ), with certain modifications, all as more fully set forth in the opinion herein.

2. In consolidated actions between a professional employees' association and the board of education to determine the scope of professional negotiations and compel good faith negotiations, the record is examined and it is Held : (1) The trial court erred in granting an order of mandamus against the board; (2) the determination of the trial court that particular items were mandatorily negotiable is proper in part and erroneous in part; and (3) the trial court did not err in finding that the association had not refused to negotiate in good faith.

William G. Haynes of Eidson, Lewis, Porter & Haynes, Topeka, argued the cause, and Paul H. Hulsey, Topeka, was with him on the brief for appellant.

Wesley A. Weathers of Crane, Martin, Claussen, Hamilton & Barry, Topeka, argued the cause, and Patricia R. Griffin, Topeka, was with him on the brief for appellee.

James R. Goheen and Gloria M. Vusich of McAnany, Van Cleave & Phillips, P. A., Kansas City, were on the brief for USD No. 500, Kansas City, Kansas, amicus curiae.

McFARLAND, Justice:

This appeal involves disputes between the National Education Association-Topeka, Inc. (hereinafter referred to as NEA-Topeka) and Unified School District No. 501 (hereinafter referred to as Board), arising from their professional negotiations for the 1978-79 school year. The Board brings this appeal from adverse determinations by the trial court.

The facts are long and involved and will be streamlined as much as possible. NEA-Topeka is the professional employees' association duly authorized to collectively negotiate with the Board on behalf of the teachers of USD 501. On December 1, 1977, the Board and NEA-Topeka, pursuant to K.S.A.1978 Supp. 72-5423, exchanged notices of items to be negotiated for the 1978-79 school year. Negotiations began on December 5, 1977, and twelve negotiating sessions were held prior to January 30, 1978, when NEA-Topeka filed two actions in the district court. One action asked the court to find that an impasse existed. This impasse action was voluntarily dismissed by NEA-Topeka. The second action (78-CV-0094) accused the Board of bad faith negotiations and commission of a prohibited practice, and sought a temporary injunction to require the Board to enter into good faith negotiations and, upon hearing on the merits, a permanent writ of mandamus as well as attorney fees. On the same date the Board filed an action (78-CV-0096) against NEA-Topeka, seeking determination that NEA-Topeka was not negotiating in good faith, that certain items were not mandatorily negotiable, and other relief. On March 3, 1978, while these two cases were pending, NEA-Topeka filed another petition asking the court to determine that an impasse existed. The impasse trial was held on March 7-10, 1978. The trial court found on March 13, 1978, that an impasse existed. This determination of impasse was appealed to this court by the Board. The appeal was dismissed on the basis that a declaration of impasse was not an appealable order. In re NEA-Topeka, Inc., 224 Kan. 582, 581 P.2d 1187 (1978). The two remaining cases were consolidated for trial and were so tried. Exhibits and transcripts of the impasse trial were admitted in evidence at the trial. On May 30, 1978, the trial court entered its memorandum decision determining both cases. The court held generally in favor of NEA-Topeka and the Board brings this appeal. Additional facts, as necessary to determine particular issues, will be included in this opinion.

The first issue is whether the trial court erred in concluding that certain items contained in NEA-Topeka's notice to negotiate were mandatorily negotiable.

In 1970, the legislature enacted the Collective Negotiations Law (K.S.A. 72-5413 Et seq.). In K.S.A. 72-5413(G ) the following definition appears:

" 'Professional negotiation' means meeting, conferring, consulting and discussing in a good faith effort by both parties to reach agreement with respect to the terms and conditions of professional service."

In 1976 and 1977 the statute was amended, but the amendments did not alter the section above cited.

In National Education Association v. Board of Education, 212 Kan. 741, 512 P.2d 426 (1973) (commonly referred to as Shawnee Mission ), this court was confronted with the question of what items were negotiable within the phrase "terms and conditions of professional service." The opinion in Shawnee Mission is highly significant to the case before us and will be quoted at length as follows:

"On this issue the trial court found 'that the school district is not compelled to maintain collective negotiations with the plaintiff association over matters of basic policy. Such matters are the exclusive legal responsibility of the school board in the exercise of its delegated authority.' It went on to say:

" 'The Court concludes that the words "terms and conditions of professional service" refer to the following areas:

" '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 and grievance procedure and such other areas that directly or by implication involve these factors. (Emphasis added.)

" 'The Court specifically concludes that this does not include educational policies of the school district.'

"NEA claims that the term is much broader than this, and encompasses any matter which may in any way affect the working conditions of a teacher. In particular, however, they point to two lists of items contained in their original proposal which are not covered by the court's definition of 'terms and conditions of professional service.' The first contains items which the Board team at a negotiating session stipulated were negotiable although only in the Board's limited concept of negotiability. This list includes such things as Probationary period, transfers, teacher appraisal procedure, disciplinary procedure, and resignations and termination of contracts. (Emphasis added.)

"The second list contains items hotly contested by the Board throughout, including such things as curriculum and materials, payroll mechanics, certification, class size and the use of para-professionals, the use and duties of substitute teachers, and teachers' ethics and academic freedom. The Board views most of these matters as peculiarly its own concern, while the last it regards as peculiarly the concern of the teachers. In neither event does it regard them as negotiable.

"The problem is not without difficulty. The legislature saw fit not to define the critical term or to list the items it regarded as negotiable. Compare, for example, K.S.A.1972 Supp. 75-4322(S ) of the Public Employer-Employee Relations Act, where for public employees other than teachers 'conditions of employment' is specifically defined in terms generally in line with those adopted by the trial court here.

"In an attempt to resolve the issue of legislative intent we look to the legislative history of the act. We find that in the 1969 session of the legislature two competing bills were introduced, Senate Bill 218 and House Bill 1562. Both provided for collective negotiations by teachers. Neither bill passed in that session, but both were referred to committee for interim study.

"S.B. 218 defined professional negotiations as a good faith effort to reach agreement with respect to 'the terms and conditions of professional service And other matters of mutual concern.' This phraseology, we find, had its origins in the policy formulations of our NEA's parent organization, the National Education Association of Washington, D. C. . . .

"It may be seen that NEA's language was employed verbatim in 1969 S.B. 218. It was later inserted in the first draft of 1970 H.B. 1647, which became the 1970 act now under consideration. If given the intent ascribed to it by its authors the language would be broad indeed, and had it been adopted it would have narrowed the concept of 'non-negotiable management prerogative' to near zero. It was not adopted, however; in the 1970 legislative process the phrase 'and other matters of mutual concern' was stricken. We can only infer from this that 'matters of mutual concern' are Not to be negotiable, but only 'terms and conditions of professional service.' This, to our mind, eliminates those matters on the NEA's second list such as curriculum and class size. While these may be matters of 'concern' to the teacher, we see the legislative action as a deliberate effort to remove such concepts from the area of negotiability.

"On the other hand, 1969 H.B. 1562 was also lost completely in the legislative mill. It contained an extremely limited definition of 'conditions of professional services,' I. e., the term included 'only wages, hours, and other economic conditions of employment.' That phrase in turn was defined to mean 'salaries and wages; hours and the amounts of work; vacation allowances; holidays; retirement; insurance benefits; wearing apparel; pay for overtime; jury duty pay and grievance procedures.' The 1970 legislature rejected this restrictive approach to the matter of negotiability, just as it rejected the expansive...