HB 2283--
Session of 1997
By Committee on Business, Commerce and Labor

9 AN ACT concerning public employer-employee relations; prescribing 10 certain impasse resolution procedures; amending K.S.A. 75-4322, 75- 11 4330 and 75-4331 and K.S.A. 1996 Supp. 75-4332 and repealing the 12 existing sections. 13 14 Be it enacted by the Legislature of the State of Kansas: 15 Section 1. K.S.A. 75-4322 is hereby amended to read as follows: 75- 16 4322. As used in this act: 17 (a) ``Public employee'' means any person employed by any public 18 agency, except those persons classed as supervisory employees, profes- 19 sional employees of school districts, as defined by subsection (c) of K.S.A. 20 72-5413, and amendments thereto, elected and management officials, and 21 confidential employees. 22 (b) ``Supervisory employee'' means any individual who normally per- 23 forms different work from his such individual's subordinates, having au- 24 thority, in the interest of the employer, to hire, transfer, suspend, lay off, 25 recall, promote, discharge, assign, reward, or discipline other employees, 26 or responsibly to direct them, or to adjust their grievances, or effectively 27 to recommend a preponderance of such actions, if in connection with the 28 foregoing the exercise of such authority is not of a merely routine or 29 clerical nature, but requires the use of independent judgment. A mem- 30 orandum of agreement may provide for a definition of ``supervisory em- 31 ployees'' as an alternative to the definition herein. 32 (c) ``Confidential employee'' means any employee whose unrestricted 33 access to confidential personnel files or other information concerning the 34 administrative operations of a public agency, or whose functional respon- 35 sibilities or knowledge in connection with the issues involved in the meet 36 and confer process would make his such employee's membership in the 37 same employee organization as other employees incompatible with his 38 such employee's official duties. 39 (d) ``Professional employee'' includes any employee: (1) Whose work 40 is predominantly intellectual and varied in character as opposed to routine 41 mental, manual, mechanical, or physical work; involves the consistent ex- 42 ercise of discretion and judgment; requires knowledge of an advanced 43 type in a field of science or learning customarily acquired by prolonged HB 2283

 1  study in an institution of higher learning; or (2) who has completed
 2  courses of prolonged study as described in paragraph (1) of this subsec-
 3  tion, and is performing related work under the supervision of a profes-
 4  sional person in order to qualify as a professional employee as defined in
 5  paragraph (1) of this subsection; or (3) attorneys-at-law who is an attorney
 6  or any other person who is registered as a qualified professional by a board
 7  of registration or other public body established for such purposes under
 8  the laws of this state.
 9    (e)  ``Elected and management officials'' means any elective official
10  and any appointed officer charged by law with major administrative and
11  management responsibilities.
12    (f)  ``Public agency'' or ``public employer'' means every governmental
13  subdivision, including any county, township, city, school district, special
14  district, board, commission, or instrumentality or other similar unit whose
15  governing body exercises similar governmental powers, and the state of
16  Kansas and its state agencies.
17    (g)  ``Governing body'' means the legislative body, policy board or
18  other authority of the public employer possessing legislative or policy-
19  making responsibilities pursuant to the constitution or laws of this state.
20    (h)  ``Representative of the public agency'' means the chief executive
21  officer of the public employer or his or her such officer's designee, except
22  when the governing body provides otherwise, and except in the case of
23  the state of Kansas and its state agencies. Such chief executive shall be
24  for counties, the chairman chairperson of the board of county commis-
25  sioners; for cities, the mayor, city manager or city superintendent; for
26  school districts, the president of the board of education; and for other
27  local units, such similar elected or appointed officer. In the case of the
28  state of Kansas and its state agencies, ``representative of the public em-
29  ployer'' means a team of persons, the head of which shall be a person
30  designated by the secretary of administration and the heads of the state
31  agency or state agencies involved or one person designated by each such
32  state agency head.
33    (i)  ``Employee organization'' means any organization which includes
34  employees of a public agency and which has as one of its primary purposes
35  representing such employees in dealings with that public agency over
36  conditions of employment and grievances.
37    (j)  ``Recognized employee organization'' means an employee organi-
38  zation which has been formally acknowledged by the public agency or
39  certified as representing a majority of the employees of an appropriate
40  unit.
41    (k)  ``Business agent'' means any authorized person who is a full-time
42  official of an employee organization and whose principal duties are to act
43  or to attempt to act for an employee organization (1) in proceedings to
HB 2283

 1  meet and confer and other proceedings involving a memorandum of
 2  agreement, (2) in servicing existing memorandums of agreement, or (3)
 3  in organizing employees into employee organizations.
 4    (l)  ``Board'' means the public employee relations board established
 5  pursuant to this act.
 6    (m)  ``Meet and confer in good faith'' is the process whereby the rep-
 7  resentative of a public agency and representatives of recognized employee
 8  organizations have the mutual obligation personally to meet and confer
 9  in order to exchange freely information, opinions and proposals to en-
10  deavor to reach agreement on conditions of employment.
11    (n)  ``Memorandum of agreement'' means a written memorandum of
12  understanding arrived at by the representatives of the public agency and
13  a recognized employee organization which may be presented to the gov-
14  erning body of a public employer or its statutory representative and to
15  the membership of such organization for appropriate action.
16    (o)  ``Mediation'' means effort by an impartial third party to assist in
17  reconciling a dispute regarding conditions of employment between rep-
18  resentatives of the public agency and recognized employee organizations
19  through interpretation and advice.
20    (p)  ``Fact-finding'' means investigation of such a dispute by an indi-
21  vidual, panel, or board with the fact-finder submitting a report to the
22  parties describing the issues involved; the report shall contain recom-
23  mendations for settlement and may be made public.
24    (q)(1)  ``Rights arbitration'' means interpretation of the terms of an
25  existing or a new memorandum of agreement or investigation of disputes
26  by an impartial third party whose decision may or may not be final and
27  binding. Rights arbitration is advisory when the results are not binding
28  upon the parties; it. Rights arbitration is final and binding when both
29  parties, of their own volition, agree to submit a dispute to, and to abide
30  by the decision of, the impartial third party, except that rights arbitration
31  conducted under the rules of procedures established by the board pur-
32  suant to subsection (b) of K.S.A. 75-4330, and amendments thereto, shall
33  be final and binding.
34    (2)  ``Interest arbitration'' means the investigation by an impartial
35  third party, or a panel of impartial individuals, of a dispute regarding
36  conditions of employment upon which no agreement has been reached in
37  meet and confer proceedings, mediation or fact finding. Interest arbitra-
38  tion results in the issuance of a report by the individual or panel to the
39  parties which describes the issues involved and contains advisory rec-
40  ommendations for the resolution of disputes over economic conditions of
41  employment, and binding decisions for the resolution of disputes over
42  noneconomic conditions of employment.
43    (r)  ``Strike'' means an action taken for the purpose of coercing a
HB 2283

 1  change in the conditions, rights, privileges or obligations of employment
 2  through the failure by concerted action with others to report for duty or
 3  to work at usual capability in the performance of the normal duties of
 4  employment.
 5    (s)  ``Lockout'' means action taken by the public employer to provoke
 6  interruptions of or prevent the continuity of work normally and usually
 7  performed by the employees for the purpose of coercing the employees
 8  into relinquishing rights guaranteed by this act.
 9    (t)(1)  ``Conditions of employment'' means the economic conditions
10  and noneconomic conditions.
11    (2)  ``Economic conditions'' include salaries, wages, hours of work, va-
12  cation allowances, sick and injury leave, number of holidays, retirement
13  benefits, insurance benefits, prepaid legal service benefits, wearing ap-
14  parel, premium pay for overtime, and shift differential pay.
15    (3)  ``Noneconomic conditions'' include hours of work, vacation allow-
16  ances, sick and injury leave, lay off and recall procedures, holidays, wear-
17  ing apparel, jury duty and grievance procedures, but nothing in this act
18  shall authorize the adjustment or change of such matters which have been
19  fixed by statute or by the constitution of this state.
20    (u)  ``Grievance'' means a statement of dissatisfaction by a public em-
21  ployee, supervisory employee, employee organization or public employer
22  concerning interpretation of a memorandum of agreement or traditional
23  work practice.
24    (v)  ``Budget submission date'' means (1) for any public employers
25  subject to the budget law in K.S.A. 79-2925 et seq., and amendments
26  thereto, the date of July 1, and (2) for any other public employer the date
27  fixed by law. ``Budget submission date'' means, in the case of the state
28  and its state agencies, the date of September 15.
29    (w)  ``Legislature'' means the legislature of the state of Kansas.
30    (x)  ``State agency'' means the same as is ascribed thereto in K.S.A.
31  75-3701, and amendments thereto.
32    Sec. 2.  K.S.A. 75-4330 is hereby amended to read as follows: 75-
33  4330. (a) The scope of a memorandum of agreement may extend to all
34  matters relating to conditions of employment, except proposals relating
35  to: (1) Any subject preempted by federal or state law or by a municipal
36  ordinance passed under the provisions of section 5 of article 12 of the
37  Kansas constitution; (2) public employee rights defined in K.S.A. 75-4324,
38  and amendments thereto; (3) public employer rights defined in K.S.A.
39  75-4326, and amendments thereto; or (4) the authority and power of any
40  civil service commission, personnel board, personnel agency or its agents
41  established by statute, ordinance or special act to conduct and grade merit
42  examinations and to rate candidates in the order of their relative excel-
43  lence, from which appointments or promotions may be made to positions
HB 2283

 1  in the competitive division of the classified service of the public employer
 2  served by such civil service commission or personnel board. Any memo-
 3  randum of agreement relating to conditions of employment entered into
 4  may be executed for a maximum period of three years, notwithstanding
 5  the provisions of the cash-basis law contained in K.S.A. 10-1102 et seq.,
 6  and amendments thereto, and the budget law contained in K.S.A. 79-
 7  2925 et seq., and amendments thereto.
 8    (b)  Such memorandum of agreement may contain a grievance pro-
 9  cedure and may provide for the impartial arbitration of any disputes that
10  arise on the interpretation of the memorandum of agreement. Such ar-
11  bitration shall be advisory or final and binding, as determined by the
12  memorandum of agreement, and may provide for the use of a fact-finding
13  board. The public employee relations board is authorized to establish
14  rules for procedure of arbitration in the event the agreement has not
15  established such rules. In the absence of arbitrary and capricious rulings
16  by the fact-finding board during arbitration, the decision of that board
17  shall be final. Judicial review shall be in accordance with the act for ju-
18  dicial review and civil enforcement of agency actions.
19    (c)  Notwithstanding the other provisions of this section and the act
20  of which this section is a part, when a memorandum of agreement applies
21  to the state or to any state agency, the memorandum of agreement shall
22  not be effective as to any matter requiring passage of legislation or state
23  finance council approval of the governor, until approved as provided in
24  this subsection. When executed, each memorandum of agreement shall
25  be submitted to the state finance council governor. Any part or parts of
26  a memorandum of agreement which relate to a matter which can be
27  implemented by amendment of rules and regulations of the secretary of
28  administration or by amendment of the pay plan and pay schedules of
29  the state may be approved or rejected by the state finance council gov-
30  ernor, and if approved, shall thereupon be implemented by it the gov-
31  ernor to become effective at such time or times as it the governor spec-
32  ifies. Any part or parts of a memorandum of agreement which require
33  passage of legislation for the implementation thereof shall be submitted
34  to the legislature at its next regular session, and if approved by the leg-
35  islature shall become effective on a date specified by the legislature.
36    Sec. 3.  K.S.A. 75-4331 is hereby amended to read as follows: 75-
37  4331. If agreement is reached by the representatives of the public agency
38  and the recognized employee organization, they jointly shall prepare a
39  memorandum of understanding agreement and, within fourteen (14) 14
40  days, present it to the appropriate governing body or authority for deter-
41  mination. The governing body or authority, as soon as practicable after
42  receiving a report from the chief financial officer for the agency of the
43  fiscal effect the terms of such memorandum of agreement will have upon
HB 2283

 1  the public agency, shall consider the memorandum of agreement and take
 2  appropriate action. If the public employer is a taxing subdivision subject
 3  to the provisions of K.S.A. 1970 Supp. 79-4401,  79-5221 et seq., and
 4  amendments thereto, such financial report shall also include information
 5  as to the impact of such memorandum on the subdivision's aggregate tax
 6  levy and operating expense limitations. If a settlement is reached with an
 7  employee organization and the governing body or authority, the governing
 8  body or authority shall implement the settlement in the form of a law,
 9  ordinance, resolution, executive order, rule or regulation. If the governing
10  body or authority rejects a proposed memorandum of agreement, the
11  matter governing body shall implement the noneconomic conditions of
12  employment contained in the memorandum of agreement and may take
13  such action as the governing body deems to be in the public interest on
14  the economic conditions of employment contained in the memorandum of
15  agreement. With the concurrence of both parties to the memorandum of
16  agreement, the entire memorandum of agreement shall be returned to the
17  parties for further deliberation.
18    Sec. 4.  K.S.A. 1996 Supp. 75-4332 is hereby amended to read as
19  follows: 75-4332. (a) Public employers may include in memoranda of
20  agreement concluded with recognized employee organizations a provision
21  setting forth the procedures to be invoked in the event of disputes which
22  reach an impasse in the course of meet and confer proceedings. Such
23  Each such memorandum of agreement shall define conditions under
24  which an impasse exists, and if the employer is bound by the budget law
25  set forth in K.S.A. 79-2925 et seq. and amendments thereto, the memo-
26  randum of agreement shall provide that an impasse is deemed to exist if
27  the parties fail to achieve agreement at least 14 60 days prior to budget
28  submission date.
29    (b)  In the absence of such memorandum of procedures, or upon the
30  failure of such procedures resulting in an impasse, either party may re-
31  quest the assistance of the public employee relations board, or the board
32  may render such assistance on its own motion. In either event, if the
33  board determines an impasse exists in meet and confer proceedings be-
34  tween a public employer and a recognized employee organization, the
35  board shall aid the parties in effecting a voluntary resolution of the dis-
36  pute, and request the appointment of a mediator or mediators, represen-
37  tative of the public, from a list of qualified persons maintained by the
38  secretary of human resources, and such appointment of a mediator or
39  mediators shall be made forthwith by the secretary.
40    (c)  All verbal or written information transmitted between any party
41  to a dispute and a mediator conducting the proceeding, or the staff of an
42  approved program under K.S.A. 5-501 et seq. and amendments thereto
43  shall be confidential communications. No admission, representation or
HB 2283

 1  statement made in the proceeding shall be admissible as evidence or
 2  subject to discovery. A mediator shall not be subject to process requiring
 3  the disclosure of any matter discussed during the proceedings unless all
 4  the parties consent to a waiver. Any party, including the neutral person
 5  or staff of an approved program conducting the proceeding, participating
 6  in the proceeding has a privilege in any action to refuse to disclose, and
 7  to prevent a witness from disclosing, any communication made in the
 8  course of the proceeding. The privilege may be claimed by the party or
 9  anyone the party authorizes to claim the privilege.
10    (d)  The confidentiality and privilege requirements of this section shall
11  not apply to:
12    (1)  Information that is reasonably necessary to establish a defense for
13  the mediator or staff of an approved program conducting the proceeding
14  in the case of an action against the mediator or staff of an approved
15  program that is filed by a party to the mediation;
16    (2)  any information that the mediator is required to report under
17  K.S.A. 38-1522 and amendments thereto;
18    (3)  any information that is reasonably necessary to stop the commis-
19  sion of an ongoing crime or fraud or to prevent the commission of a crime
20  or fraud in the future for which there was an expressed intent to commit
21  such crime or fraud; or
22    (4)  any information that the mediator is required to report or com-
23  municate under the specific provisions of any statute or in order to comply
24  with orders of the court.
25    (e)  If the impasse persists seven days after the mediators have been
26  appointed, the board shall request the appointment of a fact-finding
27  board of not more than three members, each representative of the public,
28  from a list of qualified persons maintained by the secretary of human
29  resources. The fact-finding board shall conduct a hearing, may administer
30  oaths, and may request the board to issue subpoenas. It shall make written
31  findings of facts and recommendations for resolution of the dispute and,
32  not later than 21 days from the day of appointment, shall serve such
33  findings on the public employer and the recognized employee organiza-
34  tion. The board may make this report public seven days after it is sub-
35  mitted to the parties. If the dispute continues 14 days after the report is
36  submitted to the parties, the report shall be made public. The parties
37  shall meet at least once within the 10 days immediately following receipt
38  of the fact-finding report in an effort to resolve the dispute.
39    (f)  If the parties have not resolved the impasse by the end of a forty-
40  day 10-day period, commencing with the appointment receipt of the fact-
41  finding board report, or by a date not later than 14 days prior to the
42  budget submission date, whichever date occurs first: (1) The represen-
43  tative of the public employer involved shall submit to the governing body
HB 2283

 1  of the public employer involved a copy of the findings of fact and rec-
 2  ommendations of the fact-finding board, together with the representati-
 3  ve's recommendations for settling the dispute; (2) the employee organi-
 4  zation may submit to such governing body its recommendations for
 5  settling the dispute; (3) the governing body or a duly authorized com-
 6  mittee thereof shall forthwith conduct a hearing at which the parties shall
 7  be required to explain their positions; and (4), the matter shall be referred
 8  to the board for the appointment of an arbitrator or an arbitration panel
 9  of not more than three members from a list of qualified persons main-
10  tained by the secretary of human resources. The arbitrator or arbitration
11  panel appointed shall conduct a hearing, may administer oaths and may
12  request the board to issue subpoenas. The arbitrator or arbitration panel
13  shall issue an arbitration award which is limited to the adoption of the
14  last position taken by one of the parties at impasse or by the fact-finding
15  board which was previously appointed. Upon receipt of the arbitration
16  award, the conditions of employment that are noneconomic conditions
17  shall be implemented in accordance with the arbitration award in a timely
18  fashion by the governing body, except that, in the case of an impasse to
19  which the state of Kansas or any state agencies is a party, the conditions
20  of employment that are noneconomic conditions shall be implemented by
21  the governor. The governing body shall take the conditions of employment
22  that are economic conditions under consideration and shall conduct a
23  hearing at which the parties at impasse shall be allowed to explain their
24  respective positions, except that, in the case of an impasse to which the
25  state of Kansas or any state agencies is a party, the legislature, or a des-
26  ignated committee thereof, shall conduct such hearing.  Thereafter, the
27  governing body shall take such action as it deems to be in the public
28  interest, including the interest of the public employees involved. The
29  provisions of this subsection shall not be applicable to the state and its
30  agencies and employees.
31    (g)  The cost for the mediation and fact-finding services provided by
32  the secretary of human resources upon request of the board shall be
33  borne by the secretary of human resources. All other costs, including that
34  of a neutral arbitrator, shall be borne equally by the parties to a dispute.
35    Sec. 5.  K.S.A. 75-4322, 75-4330 and 75-4331 and K.S.A. 1996 Supp.
36    75-4332 are hereby repealed.
37    Sec. 6.  This act shall take effect and be in force from and after its
38  publication in the statute book.