BEFOR E THE PUBLJC EMPLOYEE RELATIONS BOARD
OF THE STATE OF KANSAS
American Federation of Teachers
Local #6400,
Petitioner,
V.
Kansas State University,
Respondent.
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OAHNo.
Case No.
14DL0288 PE
75-CAE-6-20 14
OA llNo.
Case No.
15DL0002 PE
75 -C/\E-7-20 14
PREHEAlUNG ORDER ON MOTION TO DISM ISS,
T i lE REMAINING SCOPE OF DISPUTE, FURTHER DISCOVERY DEADLINES,
AND NOTICE OF STAT US CONFERENCE
Petitioner brings thi s action alleging the Respondent has engaged in prohibited practices within the
meaning of K.S.A 75-4333 of the Pub lic Emp loyer-Emp loyee Relations Act (hereinafter,
·' P EERA") .
Thi s matter comes before the Orftce of Administrati ve I learings pursuant to K.S.A . 77-501 et seq.
The Petitioner appears by and through its counsel , William T. G lover. Respondent appears by and
through its counsel , Lindsay A. Chapman .
Statement or Case
I . Both petitioned cases in the caption above were j oined for litigation purposes by the
presiding ollicer by prehearing order o n July 8, 20 14. Respondent has filed answer to both
petitions.
2. On September 30, 2014, respondent filed a Motion to Dismi ss both petitions on the grounds
that they ra il to state any cogni zab le c laim under authority of PEERA.
3. The motior is now ripe for consideration.
Findings or Fact
I . A single page document was attached by petitioner to its June 26, 2014, complaint that
contains text from emai ls purportedly exchanged on February 14,2014. One of the messages
was purportedly written by an official of respondent, Gary Lcitnaker, and reads as ta ll ows:
I mtt w/ Bill Glover a few minutes ago and told him that Kirk wanted to announce a
2% increase next week tor a ll class itied/USS em ployees and with regard to the PERB
case, we've maintained all along that we would be entering into meet and confer,
however, the o pener for that would be after the beginning of the fiscal year, which is
when Kirk wanted to do the increase. So, I said 1 wanted to meet with you prior to
that announcement and do you have any issues w/ us announcing a 2% across the
board increase and he said no, I wou ldn 't get in the way of any increase you all wish
to do.
2. Based on so me inaccurate statute citations within its petitions and some attached material fo r
which the pres iding officer could not determine relevancy, petitioner was ordered to provide
written claritication to the tribunal. The foll owing is that response which petitio ner
submitted o n October 3, 20 14:
The email messages were intended to rctlect the absence of an effort by Respondent
to engage in meet and confer proceedings pursuant to PEERA. That an office meeting
between two indi vidua ls as reflected in the email messages does not constitute a said
meet and confer proceeding.
3. i\ prehearing order was issued on October 6, 20 14, that ruled the following regarding the
petitions' scope for purposes of deciding respondent's Motion to Dismiss :
a.
The complaint filed by petitioner on January 29, 2014, alleges that respondent has
violated K.S.A. 75 -4333 subsections (b)( l ), (b)(2), (b)(3) and (b)(6).
b. Th e compla int tiled by petitioner o n June 26, 20 14, alleges that respondent has
violated K.S.A. 75 -4333 subsecti o ns (b)(l) , (b)(2), (b)(3), (b)(5) and (b)(6).
4.
Based upon these sco pe rulings, respondent was given an opportunity to modi fy and brief its
Motion to Dismi ss, petitioner was then given time to ti le its respon se , respondent was then
allowed to submit a sur-repl y, and the parties duly exercised each of these opportunities.
5. Both parties in their brie f's on thi s dispositi ve mo tion make references to a lleged facts that are
not contained in the two petiti ons. Both parties' bri efs also refer to various facts all eged in
di scovery answers and/or in answers to the tribunal's prehearing questionnaire.
6. i\ closer inspection of petiti oner' s January 29, 2014 , fil ed compl aint reveals that it
incorporates by reference many additional documents. Although consisting of dozens or
document pages each date-stamped by the Kansas Department ofLabor as being received on
January 24, 2014, these materia ls are referenced in the petitioner's complaint form that was
fi led tivc days later. Most of these attachments are minutes or repo rts produced by the
respondent' s Alternative Service Committee.
7. Petitioner has not requested leave to amend either petition.
8. Althoug h not contained w ithin the two fil ed complaint forms, petitio ner' s attachments to
those complaints plus other fil ed pleadings by petitioner contain, amo ng many other
arguments, the fo llowing assertions:
a.
The Alternative Service Committee (ASC) formed by respondent to faci litate a
conversion vote of employees pursuant to K.S.A. 76-715a was effectively operating
as an employee organizat ion in violation of petitioner's representation rights under
PEER!\.
b. Testimony of witnesses will demonstrate respondent did in fact refuse to meet and
confer in good faith concerning the employee pay raise.
9. The parties do not dispute that the current memorandum ofagrcement that is in effect was
signed on October 2 1, 2008.
Discuss ion and Conclusions of Law
I . T hese proceedings are governed by the Kansas Administrative Procedures Act (KAPA),
K.S.A. 77-50 I et seq. , wh ich expl icitly authorizes parties to file motions to dismiss and
motions for summary judgment. K.S.A. 77-519(a). Sheldon v. KP£RS, 40 Kan. App. 2d 75,
80 (2008), held proper the use of relevant interpretations of the Kansas Code of Civi l
Procedure in order to supply a standard of review for an administrative adjudication when
such stand&rd is not contained within KAP A and has not otherwise been promulgated by the
respond ing agency.
2. In considering a motion for dismissal , the question must be decided from the well-pleaded
facts of plaintiff's petition, determined in the light most favorable to plaintiff and with every
doubt resolved in plaintiff s favor, and by accepting the facts alleged by plaintiff as true
along with their reasonable inferences. Knop v. Gardner Edgerton Un?fied Sch. Dist. No .
231 , 4 1 Kan . App. 2d 698, 702-03 (2009).
3. When matters outside the pleadings arc presented to the tribunal in connection with a motion
to dismiss o r for judgment on the pleadings, the motion shall be treated as a motion for
summary judgment. K.S.A. 60-212(d).
4. Petitioner has certainl y not presen ted well pleaded all egations. Its decis ion to use a
''document dump" approach to filin g complaints is not serving the Due Process interests of
judicial economy and avoidance of frivolou s litigation. Petitioner's legal counsel, as a
member of the state bar, should perform better in this respect than a prose employee litigant.
Nevertheless, to promote the general purposes ofP EERA and to observe PERB 's policy of
li berally construing its process regulations toward that end, K.A.R. 84-1-2(b), the presiding
officer in this instance find s sufficiently presented allegations by petitioner to with stand the
motion to dismiss and to survive at least some consequences of the motion for summary
judgment that evolves from the motion to dismiss.
5. In considering a motion for summary judgment, it is necessary to give the non-moving party
the benefit of all in ferences that may be drawn from the admitted facts under consideration.
Jfein v. Lacy, 228 Kan. 249, 256, 6 16 P.2d 277 ( 1980). In order to preclude summary
judgment, the facts subject to dispute must be material to the conclusive issues in the case.
Kansas Heart Hospital, L.L.C. v. ldbeis, 286 Kan. 183, 193, 184 P.3d 866 (2008). Ifthere
are reasonable doubts as to the existence of material facts, summary judgment will not lie.
Timi v. Prescott State Bank, 220 Kan. 377, 386, 553 P.2d 315 (1976). Summary judgment
must be denied where reasonable minds could differ as to the conclusions to be drawn from
the evidence. Jarboe v. Board ofCounty Comr 's o,j'Sedgwick County, 262 Kan. 615 , 62 1-22,
938 P.2d 1293 (1997).
6. PERI3 ' s authority does not extend beyond the enforcement ofPEERA, K.S.A. 75-4321 et
seq., and PE ERA 's explicit purpose is to ·'obligate public agencies, public employers and
their representatives to enter into discussions with affirmative willingness to resolve
grievances and disputes relating to conditions of employment, acting within the framework
oflaw. '' K.S.A. 75-4321 (b). Specilically, the act at K.S.A. 75-4334(a) and (b) gives PERB
authority to hear and decide prohibited practice complaints that allege violations ofK.S.A.
75-4333.
7. "Conditions of employment" arc defined by K.S.A. 75-4322(t) as:
[S Jalaries, wages, hours of work , vacation allowances, sick and injury leave, number
of holidays, retirement benefits, insurance benelits, prepaid legal service benefits,
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.
8.
PEEIZA makes mandatory any negotiations for determining such conditions, stating that
employers "shall meet and confer in good faith with such employee organization in the
determination of conditions of employment". K.S.A. 75-4327(b).
Issues Raised by Petitioner's January Complaint
9. The vast majority of arguments raised by petitioner concern the voting process that was
conducted by respondent as it strived to convert employees to the unclassili ed service in
accordance with K.S.A. 76-715a. State employees' categorization as either classified or
unclassi tied is defined under the Kansas Civil Service Act, K.S.A. 75-2925 e/ seq., and there
is no law precluding labor organizations from having and representing members who are
unclassified under that act. PEERA makes no distinction between classilied and unclassified
workers. Moreover, PEERA highlights its impartiality in the matter when declaring that
none of its provisions shall operate to preclude supervisory employees (generally, all being
unclassified) from being members oflabor organizations. K.S.A. 75-4325.
10. Thus, employees' status as either classified or unclassified (hereinafter, the presiding officer
uses the two terms in tandem as '·un/ classilied") is not expressly listed as a "condition of
employment" under PEERA. Nor are voting processes for the determination ofun/classified
status an expressly listed condition of employment. While some PEERA precedents have
held that the ''conditions" li st of K.S.A. 75-4322(t) is not an exclus ive list, to sec if that is
re levant for the immediate cases takes mo re analysis.
II. The Kansas Supreme Court has ruled that this statute ' s li sting of "conditions'' is not an
exclusive list. Kansas Bd. (~/R egents v. J>i!lshurg State Univ. Chapter q[Kansas-Nat'l Educ.
Assn. , 233 Kan. 80 I , 8 18-819 ( 1983). In its holding, Kansas Board of Regents endorsed a
balancing test used by PERB to determine o n a case by case basis w hether a given topic of
concern in empl oyer-employee relations is a '·conditi on o f employment" for which
mandatory negotiations shall be held. The Court articulated that balancing test as: " If an
item is significantly related to an express condition of employment, and if negotiating the
item will not unduly interfere with management rig hts reserved to the employer by law, then
the item is mandatori ly negotiable.'' Kansas Board (~lRegents at 816.
12. Thi s balancing test has been refined in subsequent rulings by PERB to be a three-part test
using the fo ll owing criteria :
a.
A subj ect is mandatorily negotiabl e o nly if it is significantly related to express conditions
of empl oyment.
b. A subject is not mandatorily negoti able if it has been completely preempted by statute or
constituti on.
c. A subj ect that is signi ticantly related to an express conditi on of employment is
mandatorily negoti able if it is a matter on which a negotiated agreement would not
signifi cantly inter fere with the exerc ise of inherent managerial prerogatives. Eg , !AFF
Local No. I 79 v. City of 1/utchinson, Kansas. Fire Dept., PERB Case No. 75 -CAE- 120 11 , p. l I (May 4, 20 12).
13. In the instant case, neither un!classi fication statu s nor voting processes thereon are
significantly related to any express condition of employment. Salaries, wages, grievance
procedures, etc., are all important issues to workers regardless of their un/classified status,
whi ch is also to say that for purposes of PE ERA enforcement, un/class ifi ed status is
immaterial to conditions of employment. Because un/ classified employees are free to j oin
labor organ izations - and are free to remain as members even w hen their status converts from
one category to the other - the bene tits of such membership are still enj oyed by the
employees and the representatio n ri ghts of the labor organizatio n itse lf arc unaffected.
14 . The second part of the test is there fo re unnecessary to consider, bui even if it were necessary
to evaluate, this tribunal lacks the jurisd iction to do so. As a presid ing officer for PERB,
onl y the interpretation of PEERA is permissible. The specific a uthority upon which
respondent relied to conduct the vote and convert its employees is w ithin K.S.A. chapter 76
and regard s the authority of the Kansas Board of Regents.
15. Before abandon ing the preem ptio n issue, however, it is important to no te that PEERA docs
not assert itse lf as preeminent, particularly w hen determining w hat are "conditions of
empl oyment", when it states " nothing in this act shall authorize the adjustment or change (~l
such matters which have beenflxed by statute or by the constitution of this state. " K.S.A. 75-
4322(t). In the instant case, the employee conversion matter was fixed by statute, i.e. , K.S.A.
76-715a, more than three years prior to the parties ' current memorandum of agreement.
16. The third part ofthe test, if it were relevant to the immediate case facts , would likely fall
within PERB'sjurisdiction to decide. The respondent' s authority to convert its employees noting tha~ it was a new creature of statute enacted on July I , 2005 - is akin to employer
managerial prerogatives recogni zed under PEERA at K.S.A. 75-4326. Whether compared to
the manageria l right of retaining employees, maintaining governmental efficiency,
determining "methods, means and personnel by which operations are carried on", or other
employer rights preserved by P EERA, the un/classilied conversion authority is highly similar
and compatible. See, id. Moreover, find in g the conversion statute to be an employer right
which supplements those of K.S.A. 75 -4326 would allow the two state Boards and their
respective organic laws to be read in harmony with one another. When the unlclassified
employee conversion process is viewed as such a managerial prerogative, then requiring
mandatory meet and confer on the matter would certainly significantly interfere with this
managerial right.
17. Therefore, petitioner's January 24, 2014, complaint does not regard a condition of
employment, but it might nevertheless regard some prohibited practices. The question is
whether respondent wil(fully embarked on the employee conversion process in a way that did
any of the following:
a.
Implicate rights granted in K.S .A. 75-4324 by interfering, restraining or coercing
public employees in the exerci se of those rights? K.S.A. 75-4333(b)(l ). For this
question, the rights at issue are those to " form , join and participate" in a labor
organization "for the purpose of meeting and conferring ... with respect to grievances
and conditions of employment." K.S.A. 75-4324.
1. The first observation on this matter is that petitioner' s complaint, without
specilically pleading a violation of K .S.A. 75-4333(b)(5), still alleges
violation of the respondent ' s " meet and confer" duty by virtue of explicitly
alleging a violation ofthat statute' s subsection (b)(l) and its relation back to
rights under K.S.A. 75-4324.
11. If the challenged conduct of respondent does not regard " grievances and
conditions of employment" , then none of the employee rights secured by
K.S.A. 75-4324 are threatened by respondent's conduct.
111. " Grievance" is detined as ''a statement of dissatisfaction by a public
cmployee ... [or] employee organization ... conccrning interpretation of a
memorandum of agreement or traditional work practice." K.S.J\. 75-4322(u).
1v. Thus, although the grievance process is a subject of mandatory negotiation,
grievances themselves are reviewed via terms of the parties' contract
(memorandum of agreement, or "MOA") and PERB has no authority to
interpret the contract, but may assist with arbitration, see, K.S.A. 75-4330, or
assist in the event of impasse, see, K.S .A. 75-4332.
v. The presiding officer finds that the employee conversion process is not a
''traditional work practice'· by vi rtue of its special statutory authorization and
because the current case is one of first impress ion at respondent's institution.
vt. The presiding officer found inji-a that the employee conversion process is not
a condition o f employment.
V II. The presiding ofticer found infra that un/ classificati on status is immaterial to
PE ERA, therefore employees may ''form, join or partici pate" in labor
organizations regardless of such status.
v11 1. Consequently, for all of the foregoing reasons and with no material facts
disputed. the claims petitioner filed in January 2014 alleging viol ation of
subsection (b)(1) are found to be without basis as a matter of law and are
therefore ruled irre levant.
b. Dominate, interfere or assist in the formati on, exi stence, or administration of any
employee o rgani zation? K.S.J\. 75-4333(b)(2).
c.
1.
To answer this question, there are two di screte actions by respondent that
must be evaluated: the act o f embarking on a conversion process for its
employees; and , the relationship and d iscussions between respondent and the
Al ternative Service Committee (J\SC) that it created.
:1.
For reasons stated infra, respondent 's actions of launching and conducting
the employee conversion process are not cogni zab le as a matter of law under
PE ERA.
111.
Petitioner· s allegations about the ASC, however, could well constitute an
interference in the existence o r administration ofthe petitioner organi zation.
Summary judgment standards dictate that petitioner's allegation about the
ASC 's role must be further explo red via discovery and/ or at hearing as a
possible violation of K.S.A. 75-4333(b)(2).
Discourage membership in any employee organization due to discrimination
conditions o f employment or by blacklisting? K.S.A. 75 -4333(b)(3) .
111
1.
Neither party alleges that respondent engaged in blacklisting and no pleadings
suggest that blacklisting occurred.
11.
No respo ndent conduct challenged by petitioner's January 20 14 complaint
concerns conditions of employment, there fore there is no PEERA-cognizable
di scrimination and no resulting discouragement as sanctioned by this (b)(3)
statuto ry subsectio n.
d. Deny the rights granted in K.S.A. 75 -4328 that accompany certification or formal
recognition of the petitioner organization? K.S./\ . 75 -4333(b)(6).
c.
t.
/\gain, two discrete actions by respondent arc evaluated here : the conversion
process; and, the respondent's creation and interaction with the ASC .
11.
Again , o f all the petitioner's allegations connected with its January 20 14
complaint, only those that concern the ASC's role represent a potentially
valid and actionable violation of PEERA. If further di scovery reveals that the
ASC subsumed the peti ti oner' s role as a forma lly recogni zed bargaining
agent, then a violation of subsection (b)(6) may be found .
Wil(fillly vio late subsections (b)(2) and/or (b)(6)?
Petitioner must establish
respondent's "wi ll fulness" in comm itting the challenged conduct, i.e., must
demonstrate " Proof of anti-union animus or of a specific intent to vio late an
employee's, employees' or the recognized employee organizati on's rights . .. "
Fraternal Order of Police Lodge No . ./0 v. Un(fied Governmenl of Wyandotte
County/ Kansas City, 75-CAE-3-2006 and 75-CAE- 10-2006, p. 39 (PERB, April 9,
2009).
Issues Rais<!d by Petitioner's J une Complaint
18 . ln stark contrast, petitioner' s complaint fil ed June 26, 20 14, clearly concerns an express
conditi on of employment - i.e.. wages, which are subject to mandatory meet and confer - and
therefore it does allege an actionabl e claim under PEERA that survives the Motion to
Dismi ss.
19. Because thi s compl aint does in vo lve questions of material fact that are in dispute, it also
survives di smissal in terms o f the summary judgment standards that must today be applied as
noted in.fi·a.
a. Petitioner did not plead respondent's " refusal" to meet and confer about wages until
October 20, 20 14, when the petiti oner submitted its Answer to Respondent's Motion
to Di smiss. Petitioner alleged in previous pleadings that respondent " bypassed'' its
meet and confer duties or that there was "an absence of effort" by respondent to meet
its duty.
b. Given petiti oner' s latest characterization of respondent's conduct about wages,
further discovery and/or hearing must occur on the subj ect. As w ith any successfu l
complaint alleging PEERA-prohibited practices, petitioner must also establish that
respondent's cited actions were done willfu lly.
c. With respect to its June 20 14 complaint, petitioner's claimed violations ofK .S.A. 754333(b)(l ), (b)(2), (b)(3), (b)(5) and (b)(6) are all sti ll in play as potential ultimate
lindings. However, the on ly conduct challenged by this compla int is the awarding of
employee salary increases; the respondent' s con version voting processes and the
unlc lass ification status of its empl oyees are immaterial to any further prosecution of
this June 2014 comp laint.
Future Proceedings before this Tribunal
20. As noted in the Pre hearing Order issued September 10,2014, written discovery by the parties
has been completed . The parties are now free to comp lete any remaining di scovery, such as
depositions, pursuant to K.S.A. 77-522. No furth er discovery will be deemed r elevant if
not confined to the scope of remaining issues established by today's prehearing order.
2 1. Any request for subpoenas shall be subm itted to the presiding officer in writing no later than
November 28, 20 14. The request shall set forth the full names and addresses of each witness
to be subpoe naed and indi cate with specificity any documents sought.
22. All discovery shall be completed by no later than December 19, 2014.
23. The dead line for filing any dispositi ve motio n shall be 4: 30p.m. on December 19, 20 14.
24. A status conference regarding both immediate PERB complaints will be he ld by telephone
pursuant to K.S.A. 77 5 17(a) at 3:00p.m. on December 22,2014. /\II parties are instructed
to dial 1-866-620-7 326 at that time. When prompted, enter the fo ll owing conference code:
7852962433 , fo llowed by the pound sign. lf asked if you are the leader, do nothing. When
prompted, state your name. You will then be placed in a holding pattern unti l all participants
are o n the iine.
25. Among other issues, the December 22 status conference will be used to determine dead lines
fo r the exchange and submi ssion ofwitness lists and exhibits, plus setting a hearing date.
After resolving a ll the inde fin iteness of petitioner's allegations in its favor and acknowledging all
materi al facts still in dispute, I hereby treat the respondent's moti on for dismissal as a motion for
summary judgment and overrule it. l also hereby limit the scope of further proceedings on the
above-captioned cases solely to those issues for wh ich this prehearing order has determined there
remain material facts in questio n.
If e ither party fail s to comply with this order, appropriate actio n will be taken by the Presiding
Officer. If either party wishes to modify this order, a written request shall be submitted to the
Presiding Orticer and a copy sent to the other party requesting permi ssion to modify this o rder for
good cause shown. Any party who fail s to attend or participate in a prehearing conference, hearing,
o r o ther stage of' an adj udicat ive proceeding may be he ld in default pursuant to K.S.A. 77-520 of the
Kansas Adm ini strative Procedure Act. This Prehearing Order serves as a no tice pursuant to K.S .A.
77-516 or K.S.A. 77-518 of the prehearing conference or hearing scheduled herein.
IT IS SO ORDERFD
OFFICE OF ADMINISTRATIVE HEARINGS
lloh~r
Office of Administrative Hearings
I 020 S. Kansas Ave.
Topeka, KS 66612
Telephone: 785-296-2433
Email: oah(a),oah.ks.gov
CERTifiCATE OF SERVICE
on ___i
UOU c{
, 2014, I mailed and either faxed or emailed a copy of this
document to:
American Federation of Teachers
Attn: William Glover
President of Local 6400
1408 Cambridge #2
Manhattan, KS 66502 3660
Email: huckiglover(W,sbcalobal.net
Lindsay Chapman
Assistant General Counsel
Kansas State University
103 Edwards Hall
Manhattan, KS 66506 1801
Email: attvs(a! ksu.edu
Pub.ic Employee Relations Board
Kansas Department of Labor
40 I SW Topeka Blvd.
Topeka, KS 66603-3182
Staff Person
Office of Administrative Hearings