National Educ. Association-Wichita v. Unified School Dist. No. 259, Sedgwick County

• Decision Date: 02 December 1983
• Docket Number: ASSOCIATION-WICHIT,A,No. 55721,55721
• Citation: 674 P.2d 478,234 Kan. 512
• Parties: , 117 L.R.R.M. (BNA) 3137, 15 Ed. Law Rep. 948 NATIONAL EDUCATIONppellee, v. UNIFIED SCHOOL DISTRICT NO. 259, SEDGWICK COUNTY, Kansas, Appellant.
• Court: Kansas Supreme Court

Page 478

674 P.2d 478

234 Kan. 512, 117 L.R.R.M. (BNA) 3137,

15 Ed. Law Rep. 948

NATIONAL EDUCATION ASSOCIATION-WICHITA, Appellee, v. UNIFIED SCHOOL DISTRICT NO. 259, SEDGWICK COUNTY, Kansas, Appellant.

No. 55721.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. The standard of review by an appellate court is well established. Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976); Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan.App.2d 131, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982).

2. A school district is an arm of the state existing only as a creature of the legislature to operate as a political subdivision of the state. A school district has only such power and authority as is granted by the legislature and its power to contract, including contracts for employment, is only such as is conferred either expressly or by necessary implication. Gragg v. U.S.D. No. 287, 6 Kan.App.2d 152, Syl. p 3, 627 P.2d 335 (1981).

3. A closure clause is nothing but a diluted form of waiver. The general rule is that a waiver of a union's right to bargain must be clear and unmistakable. N.L.R.B. v. R.L. Sweet Lumber Company, 515 F.2d 785, 795 (10th Cir.1975).

4. After a negotiated agreement has been reached between the exclusive representative of professional employees and a board of education pursuant to K.S.A. 72-5413 et seq., then during the time that agreement is in force, the board, acting unilaterally, may not make changes in items which are mandatorily negotiable, but which were not noticed for negotiation by either party and which were neither discussed during negotiations nor included within the resulting agreement. Dodge City Nat'l Education Ass'n v. U.S.D. No. 443, 6 Kan.App.2d 810, Syl., 635 P.2d 1263, rev. denied 230 Kan. 817 (1981).

5. The appellate courts of Kansas have held that if a topic is by statute made a part of terms and conditions of professional service, then a topic is by statute made mandatorily negotiable. Tri-County Educators' Ass'n v. Tri-County Special Ed., 225 Kan. 781, 594 P.2d 207 (1979); NEA-Topeka, Inc. v. U.S.D. No. 501, 225 Kan. 445, 592 P.2d 93 (1979).

Teachers' exclusive bargaining representative brought action against school district to enjoin school district from unilaterally implementing schedule change by eliminating "coordination" work period and replacing that period with additional period of classroom instruction. The District Court, Sedgwick County, Paul W. Clark, J., granted injunction, and school district appealed. The Supreme Court, Lockett, J., held that intended change was in teachers' "hours and amount of work," which was mandatorily negotiable under statute, and thus, could not be unilaterally effected.

Affirmed.

William Dye, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Wyatt M. Wright, Wichita, of the same firm, was with him on the briefs for appellant.

David M. Schauner, Topeka, argued the cause and was on the briefs for appellee.

LOCKETT, Justice:

This is an appeal by the defendant, Unified School District No. 259, from an order of the District Court of Sedgwick County, Kansas, in favor of the plaintiff, National Education Association--Wichita. The district court enjoined defendant from unilaterally implementing a schedule change by eliminating a "coordination" work period and replacing that period with an additional period of classroom instruction.

The National Education Association--Wichita (NEA-Wichita) is the exclusive bargaining representative for all teachers in U.S.D. No. 259. Unified School District No. 259, Wichita, Kansas (the Board) is the owner of the Roosevelt Junior High School facility. Between February and October of 1981, NEA-Wichita and the Board participated in negotiations concerning the terms and conditions of professional service. During the negotiation process and the school year preceding negotiations, six of the Board's fifteen junior high schools operated on a six-period day, while the other nine operated on a seven-period day. The length of the school day was from 8:00 a.m. until 3:00 p.m. at all fifteen of the junior high schools. The negotiated contract had an effective date of August 1, 1981, and extended through July 31, 1983.

The schedule at Roosevelt Junior High School consisted of six periods for the 1978-79 school year. The teachers at Roosevelt each taught five classes and each teacher had a planning period in which to prepare for classes. The class schedule for Roosevelt was unilaterally changed for the 1979-80 school year by the school's administration. Without altering the school hours, the number of periods was increased from six to seven with the length of each period being shortened.

A new team teaching concept was instituted by the school's administration for the 1979-80 school year at Roosevelt and implemented by the creation of the seventh period. The concept was designed to improve communication between students and teachers, and between parents of the students and teachers. Under the new program, teachers were formed into multi-teacher teams for each grade. A team leader was appointed for each team and was required to plan activities for the team. The only member of the team that received extra pay for the seventh hour was the team leader. The seventh period of the day was used by the team to meet and discuss progress of students taught by the team, or a teacher could meet with a student, or teachers could meet in a group to discuss a student or students, or a teacher could meet with a parent of a student. Teachers taught for five periods, had one planning period, and met with the team or carried out team activities for one period. During these periods reserved for the team, students would be assigned to elective courses, such as music or art. The unilateral implementation of the team teaching process by the school's administration was enthusiastically accepted by the teachers of Roosevelt.

The seven-period team teaching concept was in effect at Roosevelt when the August 1, 1981, agreement took effect. In February, 1982, the Board issued to Roosevelt Junior High's principal a bulletin requiring the seventh period no longer be used for team teaching; instead the extra hour would be used by the teachers to teach the regular subjects. The Board directed this change to facilitate the scheduling of remedial reading classes pursuant to a curriculum recommendation made by a community task force previously appointed by the Board. The principal of Roosevelt, James E. Haught, abandoned the team teaching approach. The team period was converted to a teaching period, to enable remedial reading to be added to the schedule. The principal impact of this change upon the teachers at Roosevelt was that it required them to prepare and to teach one additional class each day, although each teacher would teach only a few additional minutes a day. NEA-Wichita claims that the Board was attempting to unilaterally change, without negotiation, the teachers' "hours and amount of work," a mandatorily negotiable topic set forth in K.S.A. 72-5413(l), and seeks to enjoin the Board from changing the seventh period to an additional teaching period.

On March 30, 1983, the district court granted NEA-Wichita's motion to permanently enjoin the Board from unilaterally changing a term and condition of the teachers' employment without first negotiating the topic with NEA-Wichita. The district court, relying on Chee-Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979), and Dodge City Nat'l Education Ass'n v. U.S.D. No. 443, 6 Kan.App.2d 810, 635 P.2d 1263, rev. denied 230 Kan. 817 (1981), found that the number of class periods per day is a topic that is, by statute, mandatorily negotiable. Additionally, the district court found that the number of class periods to be taught in the normal school day by a classroom teacher in U.S.D. No. 259 during the years 1981, 1982 and 1983, was not a subject of negotiation leading to the agreement now in force covering those years. The Board appealed from the March 30, 1983, decision of the district court. This case was transferred from the Court of Appeals to the Supreme Court.

The standard of review by an appellate court is well established. Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976); Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan.App.2d 131, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982).

The Board contends that the trial court erred in finding that it failed to negotiate with NEA-Wichita any increase in the number of class periods to be taught by a teacher. The contention that negotiations on this topic did occur is based largely on the fact that the 1981-83 contract and Art. V, Sec. D, Para. 7 deleted all reference to the word "hours" and substituted "periods" pursuant to a proposal made by the Board. This language change occurred in a paragraph that dealt solely with the activities and hours of a departmental coordinator, a teacher appointed to coordinate the activities of a subject matter area having three or more teachers.

The 1980-81 contract in pertinent part stated in Art. V, Sec. D, Para. 7:

"(a) Junior High and Senior High Department Coordinators with 9-17 teachers in the department shall be assigned one (1) coordination work hour per day.

"(b) Junior High and Senior High Department...