Courts have long held that collective bargaining is not a constitutionally-protected right. Public sector unions are granted the right to negotiate the terms and conditions of employment either by state statute or, in states without a bargaining law, by local charter or ordinance. As was seen in Wisconsin and Ohio in the last few years, the right to bargain can change or be eliminated entirely by the body enacting the original legislation.
Kansas’s Public Employer-Employee Relations Act (PERA) is very unusual in that it permits public employers to opt in or out of collective bargaining. The opt-out provision of the statute requires a majority vote of the employer’s governing body and specifies when the vote takes effect.
The City of Edwardsville, Kansas opted into collective bargaining in 1999. That decision gave the City’s employees the right to negotiate with the City over conditions of employment. In August 2013, the City Council voted to opt out of collective bargaining and unilaterally imposed new employment conditions on City firefighters in January 2014.
The opt-out provision of PERA specifically states that the vote cannot “take effect until the termination of the next complete budget year following such vote.” At the time the vote was taken, the City was in the midst of its 2013 budget year, which tracked the normal January-December calendar year. As a result, “the next complete budget year” was 2014.
Although the City’s vote to opt out was done correctly, the unilateral imposition of new employment terms just four months later violated what the Court of Appeals of Kansas described as the “unmistakably clear” intent of the statute. The International Association of Fire Fighters had been granted an injunction forcing the City to comply with the statute. The Court held that the City’s action was premature, affirmed the injunction, and pointed to the repetitive language of the statute: “Sometimes the Legislature uses redundant language to avoid any possible uncertainty about the meaning of a statute.”
The Court concluded, based upon the timing of the opt-out vote, that it was not effective until January 2015: “We cannot envision any way in which the Legislature could have been more definitive. In fact, this is a case in which the Legislature has used redundant language to eliminate all doubt. Had it said that the vote may not take effect until the end of the ‘next budget year,’ that would have meant the same thing. But the Legislature added the word ‘complete’ and said that the vote could not take effect until the end of the ‘next complete budget year.’”
The Court further concluded that the injunction was necessary to prevent the irreparable harm caused by the City’s violation of the law: “Correcting a violation of the law is in the public interest. Violating the Act is particularly harmful to the public because the Act was specifically enacted to develop harmonious and cooperative relationships between the government and its employees and to prevent the potential for conflict and interruption of government operations that can be caused by the denial of the right to organize.”
Wing v. City of Edwardsville, Kansas, 2014 WL 7202822 (Kan. Ct. App. 2014).
Note: The Union’s “victory” may have been short lived. It appears the ruling in this case was handed down less than two weeks before the opt-out vote became effective.