Opinion
No. 109,308.
2013-11-1
OTTAWA EDUCATION ASSOCIATION, Appellant, v. The SECRETARY OF the KANSAS DEPARTMENT OF LABOR, and Board of Education of U.S.D. No. 290, Franklin County, Kansas, Appellees.
Appeal from Franklin District Court; Eric W. Godderz, Judge. David M. Schauner, of Kansas National Education Association, for appellant. Justin McFarland, deputy general counsel, Kansas Department of Labor, for appellee Kansas Department of Labor.
Appeal from Franklin District Court; Eric W. Godderz, Judge.
David M. Schauner, of Kansas National Education Association, for appellant. Justin McFarland, deputy general counsel, Kansas Department of Labor, for appellee Kansas Department of Labor.
Michael G. Norris and Melissa Hillman, of Norris & Keplinger, L.L .C., of Overland Park, for appellee Board of Education of U.S.D. 290, Franklin County, Kansas.
Before MALONE, C.J., PIERRON and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
The Ottawa Education Association (Association) filed a prohibited practice complaint against the Board of Education of U.S.D. No. 290, Franklin County (Board), alleging the Board had made a unilateral change in the mandatory topic of “salaries and wages” when it implemented, without negotiating, a “Key Policy” with a monetary penalty that charged teachers up to $500 for lost building keys. The Secretary of the Kansas Department of Labor (KDOL) found the Key Policy was not mandatorily negotiable and no prohibited practice had been committed. The district court affirmed the KDOL's order. We affirm.
The parties stipulated to the essential facts in this case:
“1. The Ottawa Unified School District No. 290, Franklin County, Kansas (Board or District) is a school district duly organized pursuant to Article 6, Section 5 of the Kansas Constitution and Chapter 72 of the Kansas Statutes Annotated.
“2. The Ottawa Education Association (Association) has been duly recognized as the exclusive bargaining representative of the professional employees of the Board under the Professional Negotiations Act, K.S.A. 72–5413 et seq.
“3. The Board and the Association have entered into a Negotiated Agreement that contains the parties' agreement with regard to ‘terms and conditions of professional service for the Board's professional employees for the 2009–2010 school year.
“4. A true and accurate copy of the Negotiated Agreement for the 2009–2010 school year is attached to the parties' Stipulations of Fact as Exhibit A.
“5. During negotiations for the 2009–2010 Negotiated Agreement, the Board and the Association neither noticed for negotiation nor negotiated any provision concerning keys to school district buildings or the costs of replacing lost or stolen keys.
“6. The parties' 2009–2010 Negotiated Agreement does not contain a provision that addresses the issuance of keys to school buildings or the cost of replacing lost or stolen keys.
“7. At its regular meeting on Monday, December 14, 2009, the Board adopted a policy regarding Key Request Procedures.
“8. As initially drafted, the policy stated, ‘The employee will be charged $350.00–$500.00 per key to allow district to re-key facility and reissue staff keys.’
“9. On December 22, 2009, Chuck Tilman filed a level 3 grievance on behalf of the Ottawa Education Association with Superintendent Dean Katt pursuant to the parties' negotiated grievance procedure.
“10. The Association's level 3 grievance alleged that the Board's key request policy was a violation of the parties' 2009–2010 Negotiated Agreement, specifically, ARTICLE TWO—GENERAL PROVISIONS, Section A: Maintenance of Standards.
“11. ARTICLE TWO—GENERAL PROVISIONS, Section A: Maintenance of Standards, of the parties' 2009–2010 Negotiated Agreement provides as follows:
‘Except as the Agreement shall otherwise provide, all terms and conditions of employment applicable on the signing date of this Agreement of employees covered by this agreement, as established by the rules, regulations and/or policies of the Board in force on said date, shall continue to be so applicable during the terms of this Agreement, nothing contained herein shall be interpreted and/or applied to deprive teachers of professional advantages enjoyed prior to the effective date of this Agreement.’
“12. The phrase ‘professional advantages' is not defined in the Negotiated Agreement to include the possession of keys or particular access to District buildings.
“13. In a decision dated January 26, 2010, Superintendent Katt denied the Association grievance and the relief sought therein, finding that the 2009–2010 Negotiated Agreement had not been violated when the Board adopted its Key Policy.
“14. In his grievance decision, Superintendent Katt stated that the Board agreed to modify the language of the policy as follows:
‘Each employee with possession of USD 290 keys is responsible for their keys and must report lost or stolen keys immediately. The employee will be charged the cost of replacing applicable locks and keys up to $500 per key. ’The employee will be charged $350.00–$500.00 per key to allow district to re key facility and reissue staff keys.
“15. In his grievance decision, Superintendent Katt stated that the Board further agreed to ‘install a keyless entry system at one location in the high school and middle school.’
“16. In his grievance decision, Superintendent Katt further stated that the keyless entry system would allow teachers to swipe a card to enter the building instead of using a key, and that if a swipe card were lost, the replacement cost for the card would be minimal and the entry code could be programmed at no cost.
“17. In his grievance decision, Superintendent Katt further stated that ‘the Board felt legitimate safety reasons existed for re-keying the facilities and putting a policy in place that would require more conscientious use of district keys by its employees.’
“18. The Association appealed Superintendent Katt's decision denying their grievance to the Board at level 4 of the grievance procedure.
“19. In a decision dated February 10, 2010, Board president Brian Kane, on behalf of the Board, denied the Association's grievance and the relief sought.
“20. In the Board's grievance decision, Brian Kane, on behalf of the Board, stated ‘[w]e believe that the board acted within rights granted to it in K.S.A. 72–8205(c) to adopt rules and regulations for teaching in the school district and subsection (e) of the same statute which provides, “[t]he board may transact all school district business and adopt policies that the board deems appropriate to perform its constitutional duty to maintain, develop, and operate local public schools.’ “
“21. In the Board's grievance decision, the Board found that:
• The Board acted within its rights in making its Key Policy;
• The 2009–2010 USD 290 Negotiated Agreement had not been violated;
• The Board's Key Policy did not create a change in the terms or conditions of employment of the teachers in the District;
• The Key Policy was not a mandatorily negotiated item.
“22. Under the Board's Key Policy, no employee will be given building keys unless that employee fills out and signs a Key Request Form.
“23. By signing the Key Request Form, bargaining unit members must assert that ‘I have received the key(s) listed above and I agree that if I lose the key(s) I must pay the cost of replacing applicable locks and keys up to $500.00 for each key for the district to re-key the facility.’
“24. Employees who want keys must agree to pay up to $500 for lost or stolen keys before receiving any key(s).
“25. A true and accurate copy of the Key Policy is attached to the parties' Stipulations of Fact as Exhibit B.
“26. ARTICLE TWO—GENERAL PROVISIONS, Section B: Management Rights, of the parties' 2009–2010 Negotiated Agreement provides as follows:
‘It is understood and agreed that the Board retains those powers expressly granted to it by statute, including those necessarily implied, and that the statutes are to be strictly construed, including the right to make unilateral changes except as specifically limited by the provisions contained within this agreement. It is agreed that these provisions do not supersede the provisions of the agreement and are specifically limited by such agreement. The only limitation on any right of the board shall be by law or by the express limitation by specified provisions contained within this agreement.’
“27. ARTICLE TWO—GENERAL PROVISIONS, Section E: Re–Opening Clause, of the parties' 2009–2010 Negotiated Agreement provides as follows:
‘The Board and the Association agree to reopen negotiations over any mandatory negotiable topic upon the request of either the Board or the Association.’
“28. The Association noticed the Board's Key Policy for negotiation for the 2010–2011 school year.
“29. During 2010–2011 negotiations, the Board advised the Association that it did not want to discuss the Key Policy until the Complaint the Association filed with the Kansas Department of Labor was resolved.
“30. The Board and the Association continue to discuss the Key Policy during their interest based bargaining sessions.
“31. For the 2009–10 school year, the District spent $734,215.80 on office supplies, furnishings, equipment, library supplies, and textbooks.
“32. As of the 2009–10 school year, the total replacement cost of the District's fixed assets in technology is $1,407,109.”
After the Board denied its grievance, the Association filed a complaint pursuant to K.S.A.2011 Supp. 72–5430a with the KDOL. The KDOL agreed with the Board that the unilateral implementation of the Key Policy and its penalty provisions did not come within the purview of the mandatorily negotiable “salaries and wages” topic of the negotiated agreement and did not constitute a prohibited practice under the Kansas Professional Negotiations Act (KPNA), K.S.A. 72–5413 et seq. see K.S.A.2011 Supp. 72–5413(1)(1). The KDOL later entered a final order denying review.
The Association sought judicial review in the district court. The court denied the Association any relief, affirming the findings of the KDOL that the Key Policy could not be considered salary or wages and therefore its unilateral adoption did not constitute a prohibited practice:
“The Court would agree with Respondent's position and affirm the previous agency findings that implementation of the Key Policy and its penalty provision did not constitute a prohibited practice. It is clear that adoption of the Key Policy, with its penalty provision, was not an effort by the Respondent to avoid its statutory duty to negotiate salary and wages, nor an artifice or scheme somehow to recoup wages or salary payments by imposition of a penalty.
“As set forth in the final order, the presiding officer found the Respondent adopted the Key Policy/penalty provision out of legitimate safety concerns and to incentivize accountability from those unit members who voluntarily determine that the utility of facility key possession outweighs the risk of key loss and fee payment. Further, any suggestion that negotiation over the penalty provisions, effect on unit member wages is statutorily mandatory because failure to so hold would reduce wages diverted by the penalty provision is an inadequate basis for expanding the salary/wage topic to include said penalty provision. This Court could not agree more.
“K.S.A. 72–5413(1) includes other wage related subjects such as pay for duties under supplemental contracts, retirement, and insurance benefits. This Court finds that salary and wages, under the PNA, ‘in its commonly understood meaning’ would not include a replacement fee for lost keys as such a fee does not involve payment for services rendered or labor performed.”
The Association appeals.
The Association argues the monetary penalty in the Key Policy is mandatorily negotiable under the KPNA, because it falls within the purview of “salaries and wages.”
First, we will clear up some confusion by the parties regarding the doctrine of operative construction. The Board argues the KDOL is an agency of special expertise and its interpretation of the Kansas statutes involving the terms and conditions of a negotiated contract of a teachers union should be given deference. However, the KDOL correctly points out that operative construction is no longer viable in Kansas. See Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (“To be crystal clear, we unequivocally declare here that the doctrine of operative construction .... has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal.”). Although judicial review is strictly limited by the Kansas Judicial Review Act, the issue on appeal involves statutory interpretation, which is a question of law. Consequently, our review of the Kansas statutes defining the terms and conditions of a negotiated teachers contract is unlimited. See K.S.A.2012 Supp. 77–621(c)(4): Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).
The Kansas Supreme Court has held that if a topic is by statute made part of the terms and conditions of professional service, then the topic is by statute made mandatorily negotiable. NEA–Wichita v. U.S.D. No. 259, 234 Kan. 512, Syl. ¶ 5, 674 P.2d 478 (1983). The issue of mandatory negotiation was considered in U.S.D. No. 501 v. Secretary of Kansas Dept. of Human Resources, 235 Kan. 968, 970, 685 P.2d 874 (1984): “In our judgment, the topic approach was the proper method to be utilized by the secretary and the district court in interpreting K.S.A. 72–(1). Such an approach is in accord with the intent of the Kansas Legislature and is consistent with the Kansas decisions.”
In U.S.D. No. 501, the court looked at the topic approach established in Chee–Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979), to determine whether a particular item was mandatorily negotiable. Under the topic approach, a proposal does not have to be specifically listed under K.S.A.2012 Supp. 72–5413(1) to be mandatorily negotiable as a term and condition of employment. All that is required is that the subject matter of the specific proposal be within the purview of one of the categories listed under “terms and conditions of professional service” in K.S.A.2012 Supp. 72–5413(1). U.S.D. No. 501., 235 Kan. at 969, 685 P.2d 874.
The KDOL suggests the topic approach is limited and we should not allow the Association to expand the terms and conditions of employment beyond the express items listed in K.S.A.2012 Supp. 72–5413(1). The KDOL argues that when the legislature uses the word “means” and also fails to use expansive words like “includes, but not limited to,” it is clear evidence the legislature intended the list to be exhaustive, not illustrative. The KDOL suggests that since the definition of the phrase “terms and conditions of professional service” is followed by specific words and phrases, then the legislature intended only the items listed in K.S.A.2012 Supp. 72–5413(1)(1)(A) to constitute the terms and conditions of professional service. This is not the end of the KDOL's plea to end use of the topic approach.
The KDOL argues that both the death of the operative construction doctrine and the fact stare decisis does not apply to administrative tribunals support a finding that we should abandon the topic approach of determining negotiability. See In re Equalization Appeal of Prieb Properties, 47 Kan.App.2d 122, Syl. ¶ 3, 275 P.3d 56 (2012) ( stare decisis is not generally applicable to decisions of administrative tribunals, but an agency must still provide a reasoned explanation for any failure to adhere to its own precedents). We acknowledge the KDOL's arguments, but we have found no authority to support a finding the Kansas Supreme Court is moving away from the “topic approach” outlined in U.S.D. No. 501, 235 Kan. 968, 685 P.2d 874, and Chee–Craw Teachers Ass'n, 225 Kan. 561, 593 P.2d 406. See Anderson Office Supply v. Advanced Medical Assocs., 47 Kan.App.2d 140, 161, 273 P.3d 786 (2012) (The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position.). In U.S.D. No. 501, the court clearly stated the topic approach is the method to be applied by the district courts, and what is now the KDOL, in determining mandatorily negotiable items. 235 Kan. at 971, 685 P.2d 874. We will continue to utilize the topic approach in analyzing the issues in this case.
The KPNA provides the controlling authority. See K.S.A. 72–5413 et seq. The Association argues the penalty provision of the Key Policy comes within the purview of the topic of “salaries and wages .” Within the KPNA, the “[t]erms and conditions of professional service' “ of a teacher's contract is divided into two specific categories of topics and one catchall:
“ ‘Terms and conditions of professional service’ means (A) salaries and wages, including pay for duties under supplemental contracts; hours and amounts of work; vacation allowance, holiday, sick, extended, sabbatical, and other leave, and number of holidays; retirement; insurance benefits; wearing apparel; pay for overtime; jury duty; grievance procedure, including binding arbitration of grievances; disciplinary procedure; resignations; termination and nonrenewal of contracts; reemployment of professional employees; terms and form of the individual professional employee contract; probationary period; professional employee appraisal procedures; each of the foregoing being a term and condition of professional service, regardless of its impact on the employee or on the operation of the educational system; (B) matters which relate to privileges to be granted the recognized professional employees' organization including, but not limited to, voluntary payroll deductions; use of school or college facilities for meetings; dissemination of information regarding the professional negotiation process and related matters to members of the bargaining unit on school or college premises through direct contact with members of the bargaining unit, the use of bulletin boards on or about the facility, and the use of the school or college mail system to the extent permitted by law; reasonable leaves of absence for members of the bargaining unit for organizational purposes such as engaging in professional negotiation and partaking of instructional programs properly related to the representation of the bargaining unit; any of the foregoing privileges which are granted the recognized professional employees' organization through the professional negotiation process shall not be granted to any other professional employees' organization; and (C) such other matters as the parties mutually agree upon as properly related to professional service including, but not limited to, employment incentive or retention bonuses authorized under K.S.A. 72–8246, and amendments thereto.' “ (Emphasis added.) K.S.A.2012 Supp. 72–5413(1)(1).
The Association cites U.S.D. No. 501, 235 Kan. 968, 685 P.2d 874, for a general example of how a topic can fit within the terms “salaries and wages” and that case is procedurally helpful in providing an illustration of what is and is not mandatorily negotiable. In U.S .D. No. 501, the school district appealed the trial court's decision that U.S.D. 501 had failed to negotiate with the National Education Association on three mandatorily negotiable topics-staff reduction, employee files, and the student teacher program. The court in U.S.D. No. 501 found student teacher programs fell within the category of “hours and amounts of work” and was therefore mandatorily negotiable. 235 Kan. at 975, 685 P.2d 874.
Applying the general principles of U.S.D. No. 501, the Association contends that just like the student teacher programs, the salary and wages of any teacher who loses his or her keys or has them stolen will be decreased by up to $500 per key. The Association insists this monetary penalty under the Board's Key Policy is within the purview of “salaries and wages” in K.S.A.2012 Supp. 72–5413(1)(1)(A).
Additionally, the Association argues the monetary penalty in the Key Policy is subject to the Kansas Wage Payment Act (KWPA), K.S.A. 44–312 et. seq , and consequently it comes within the purview of “salaries and wages” under the KPNA. School districts are covered employers under the KWPA. See K.S.A.2012 Supp. 44–313a. K.S.A.2012 Supp. 44–319(a) states that no employer may withhold, deduct, or divert any portion of an employee's wages unless the employer has a “signed authorization by the employee for deductions for a lawful purpose accruing to the benefit for the employee.” The Association cites administrative regulations for those benefits that are “accruing to the benefit of the employee.” See K.A.R. 49–20–1(a). The Association argues a deduction of key replacement would not be “accruing to the benefit of the employee,” because it would fall within K.A.R. 49–20–1(a)(2) as a prohibited deduction for “alleged negligent acts.”
The Association contends the monetary penalty in the Key Policy is exactly the type of deduction addressed in K.A.R. 49–20–1(a)(2). The Association states the 2013 amendments to K.S.A. 44–319 now specifically allow an employer to deduct any portion of an employee's final wages “[t]o recover the employer's property provided to the employee in the course of the employer's business including ... keys or access cards.” L.2013, ch. 6, sec. 4, (effective July 1, 2013). The Association maintains the penalty results in a decrease in a teacher's wages due to lost or stolen keys.
Before addressing the merits of the issues, the Board raises a procedural argument against the Association's reliance on the KWPA. The Board states the Association failed to raise this argument in its complaint or in the prehearing questionnaire with the KDOL. The Association raised the KWPA issue for the first time in the brief it submitted to the KDOL. The Board argues the prehearing questionnaire is analogous to a pretrial order in civil proceedings and should ultimately control the issues in this case. See McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 18–19, 61 P.3d 68 (2002) (Pretrial orders are used to eliminate the element of surprise from trials and to simplify the issues and procedure by full disclosure to all parties of the anticipated evidence, and factual and legal issues. The pretrial order controls the course of the action.).
The Board raised this same procedural issue with the KDOL. The KDOL recognized the Association's argument based on the KWPA, but made no additional comment on it. The KWPA argument was not part of the KDOL's ruling and was not substantively addressed by the KDOL. It is undisputed this argument was raised before the KDOL and was at least contemplated by the KDOL. See Huffmier v. Hamilton, 30 Kan, App.2d 1163, 1167, 30 Kan.App.2d 1163, 57 P.3d 819 (2002) (if the trial court addresses an issue, appellate courts can address the issue even though the appellant did not raise the issue below or in briefs), rev. denied 275 Kan. 964 (2003). It appears that if the Board believes it was improper for the KDOL to consider the KWPA argument, then a cross-appeal would have been appropriate. See McCracken v. Kohl, 286 Kan. 1114, Syl. ¶ 1, 191 P.3d 313 (2008) (cross-appeal is a necessary prerequisite for consideration of a district court ruling on appellee claims).
In any event, the Board and the KDOL contend the KWPA is inapplicable here. The Board argues the Key Policy does not impose or implement a direct withdrawal from the employee's paycheck. See K.S.A.2012 Supp. 44–319(a). Instead, the Key Policy simply assesses a replacement fee for lost or stolen keys. The Board also argues that even if the penalty is deemed a deduction from a teacher's salary, it should not be considered a deduction for “losses to employers resulting from ... alleged negligent acts.” See K.A.R. 49–20–1(a)(2)(A). The Board argues the penalty provisions are geared toward encouraging more conscientious use of school district property, specifically, building keys by employees.
The KDOL also argues the proper avenue for challenging a violation of the KWPA is an original administrative claim with the KDOL or an action in district court. See K.S.A. 44–322a; K.S.A.2012 Supp. 44–324. The KDOL states this case is not an original action brought pursuant to the KWPA for unpaid wages.
The KWPA defines wages as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis less authorized withholding and deductions.” See K.S.A.2012 Supp. 44–313(c). See also K.S.A.2012 Supp. 44–703(o) (Kansas employment security law definition of wages); K.S.A.2012 Supp. 44–511(a)(3) (Kansas workers compensation definition of wage). The KDOL argues none of these statutes come close to suggesting that “wages” includes reimbursement for lost keys. The KDOL argues the Key Policy is not an attempt to recoup compensation paid to employees by imposition of a penalty.
The first step in our analysis is simply to read the statutory language, giving common words their ordinary meanings. See Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). If that plain reading reveals what the legislature intended, we need not resort to legal canons of construction or legislative history to construe a meaning of the statute. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271–72, 202 P.3d 7 (2009).
When the legislature enacted the KPNA in 1970, it did not contain a list of negotiable items. The KPNA simply permitted the board of education and teachers' representatives to enter into an agreement concerning “terms and conditions of professional service.” L.1970, ch. 284, sec. 9. Under the original KPNA, the courts established a test for divining the meaning of “terms and conditions of professional employment.” In National Education Association v. Board of Education, 212 Kan. 741, Syl. ¶ 5, 512 P.2d 426 (1973), the court developed the “impact” test, which provided: “The key to determining whether an issue is negotiable or not is an assessment of how direct an impact it has on the well-being of the individual teacher, as opposed to its effect on the operation of the school system as a whole.”
In 1977, the legislature amended the KPNA and added a scope of bargaining definition which enumerated several mandatory subjects and incorporated the Shawnee Mission impact test. L.1977, ch. 248, sec. 1. Finally, in 1980 the KPNA was again amended, and the scope of negotiations section was amended to lengthen the list of mandatorily negotiable subjects. The impact test, however, was dropped from the definition. L.1980, ch. 220, sec. 1. Since the legislative changes in 1980, the list of items included in the topic of salaries and wages has remained unchanged for over 30 years. See L.1989, ch. 216, sec. 1; L.1990, ch. 255, sec. 1; L.2002, ch. 167, sec. 4; L.2004, ch. 179, sec. 94; L.2006, ch. 143, sec. 4; L.2009, ch. 72, sec. 1.
We are certain the Board's authority to maintain and insure the safety of students, staff, and property in its schools is of the utmost importance. K.S.A.2012 Supp. 72–8205(c), K.S.A.2012 Supp. 72–8205(e)(1), and K.S.A. 72–1033 specifically give the Board the authority to adopt rules and regulations for teaching in the district and the right and power to control district property and facilities. The Board claims that to accept the Association's position would have the effect of undermining the Board's ability to enact policies for safety and security, which are topics that fall clearly outside of the mandatorily negotiable topics of K.S.A.2012 Supp. 72–5413(1). The plain language of these statutes provides the authority for the Board to adopt the Key Policy in order to protect the health, safety, and welfare of district students, staff, and property.
The Board cites to an order of the KDOL (then known as the Secretary of the Department of Human Resources) where the issue involved whether the board of education in that case was required to negotiate a refusal to provide a secure area for the employee's valuables. See NEA–Topeka v. U.S.D. 501, Case No. 72–CAE–6–1982 (September 29, 1981). The KDOL held the issue was not a mandatorily negotiable item. This decision is certainly notbinding. Cf. Data Tree v. Meek, 279 Kan. 445, 455, 109 P.3d 1226 (2005) (Attorney General opinion not binding on a court although may be persuasive authority). Additionally, this unchallenged decision of the KDOL does not address the monetary penalty imposed in order to maintain the safety of the district facilities and whether a policy containing a monetary penalty is mandatorily negotiable.
The full extent of the KDOL's ruling in 72–CAE–6–1982 for securing an employee's valuables was as follows:
“PHYSICAL FACILITIES.
“This proposal relates to unsafe conditions of the facilities in which unit members work. The proposal also seeks a secure area for employees' valuables to be stored.
“Unsafe conditions in the employer's facilities are governed by both federal and state statute and local ordinances. As such, they are matters to be addressed by the employer and the appropriate federal, state or local authorities. Employees are expected to call such unsafe conditions to the employer's attention. However, the procedures for notification and correction of unsafe conditions are not mandatory subjects of negotiation.
“It is difficult to imagine that an employer would refuse to provide a secure area for employee's valuables. However, the Secretary finds nothing with K.S.A.72–5413(1) to require an employer to negotiate such a provision.
“The subject of physical facilities is at best permissively negotiable and the district was within its rights to refuse to negotiate the subject.”
We are not persuaded by the Association's argument that the Key Policy falls within the terms “salaries and wages.” We find the terms and conditions of professional service involving salaries and wages in K.S.A, 2012 Supp. 72–5413(1)(1)(A) contains no references to the areas covered by the Key Policy, namely, access to district facilities; access to keys to district facilities; or safety and security of district staff, students, and property. The Board also points out there are no Kansas state or federal cases that would include the Key Policy within the terms and conditions of professional service since the decision to have building keys is purely optional. An employee is certainly not required to have building keys, and it is only mandatory to sign the Key Request Form if keys are checked out in the first place.
We are not convinced the KDOL Secretary only paid “lip service” to the topic approach and then abandoned it by finding that the Key Policy went beyond the limits of “salaries and wages.” By signing the Key Request Form, bargaining unit members asserted: “I have received the key(s) listed above and I agree that if I lose the key(s) I must pay the cost of replacing applicable locks and keys up to $500.00 for each key for the district to re-key the facility.” There is no evidence any penalty resulting from the Key Policy would be deducted from the employee's wages. Consequently, because the employees have not signed an authorization for a deduction from their wages, the KWPA is not implicated and all the provisions cited by the Association are inapplicable. See K.S.A.2012 Supp. 44–319(a)930 (requiring “a signed authorization by the employee for deductions”); K.A.R. 49–20–1(a) (requiring “a signed authorization from the employee for lawful deductions”).
We are aware of the 2013 amendments to K.S.A. 44–319 which now specifically allow an employer to deduct any portion of an employee's final wages, “To recover the employer's property provided to the employee in the course of the employer's business including ... keys or access cards or materials until such time as such property is returned by the employee to the employer.” L.2013, ch. 7, sec. 4. This new law took effect on July 1, 2013. The new law appears to allow employers to withhold or deduct from the final wages the cost of keys. The new law authorizes this deduction as long as there is a written notice and explanation. L.2013, ch. 6, sec. 4. Again, we are not dealing with a case where the Board has given written notice and an explanation that a deduction would be made from the employee's paycheck for lost keys. Further, it is not mandatory that an employee have keys to the buildings, but only mandatory that the employee sign the Key Refund Form if he or she desires keys to the building.
We find the logic outlined in the KDOL's ruling to be sound:
“To the contrary, from all indications Respondent adopted the Key Policy/penalty provision out of legitimate safety concerns and to incentivize accountability from those unit members who voluntarily determine that the utility of facility key possession outweighs the risk of key loss and fee payment. Further, any suggestion that negotiation over the penalty provision's effect on unit member wages is statutorily mandatory because failure to so hold would reduce wages diverted by the penalty provision is an inadequate basis for expanding the salary/wage topic to include said penalty provision. It is the finding and conclusion of the presiding officer that Respondent's unilateral implementation of the Key Policy in question did not constitute a prohibited practice under the Kansas Professional Negotiations Act. To conclude that Respondent's Key Policy is within the purview of ‘salaries and wages,’ one of ‘the legislature's detailed specific designation of matters subject to negotiation’ under the PNA, would ‘by construction engraft [another] not enumerated by the legislature,’ an unreasonable reading of the statute. [Citation omitted.]”
As is commonly understood, the term “salaries and wages” used in K.S.A.2012 Supp. 72–5413(1)(1)(A) does not include a replacement fee for lost keys. See Padron, 289 Kan. at 1097, 220 P.3d 345 (An appellate court must attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings.). The decisions of the KDOL and the district court correctly held the Board's Key Policy did not amount to “terms and conditions of professional service” and consequently was not a mandatorily negotiable item.
Next, the Association argues since the Key Policy is a mandatorily negotiable topic, the Board committed a prohibited practice in violation of K.S.A. 72–5430(b)(5) when it made a change without first negotiating that change with the teachers' exclusive bargaining representative. See U.S.D. No. 314 v. Kansas Dept. of Human Resources, 18 Kan.App.2d 596, 856 P.2d 1343, Sy. ¶ 2, 18 Kan.App.2d 596, 856 P.2d 1343 (1993) (“Failure to negotiate an item that by its nature is mandatorily negotiable amounts to a prohibited practice under K.S.A. 72–5430.”); NEA–Wichita, 234 Kan. 512, Syl. ¶ 5, 674 P.2d 478 ( [I]f a topic is by statute made apart of the terms and conditions of professional service, then [the] topic is by statute made mandatorily negotiable.).
Based on our prior analysis that the Key Policy was not mandatorily negotiable under the KPNA, the Board did not commit a prohibited practice by unilaterally implementing the policy. K.S.A.2012 Supp. 72–8205(e) grants a board of education the power to “transact all school district business and adopt policies that the board deems appropriate to perform its constitutional duty to maintain, develop and operate local public schools.” All decisions below correctly held the Key Policy was not mandatorily negotiable and therefore the Board did not commit a prohibited practice by adopting the policy outside the negotiation process.
Affirmed.