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75-4334. Same; proceedings for determination in accordance with Kansas administrative procedure act; judicial review; action in district court in proceeding involving alleged strike or lockout. (a) Any controversy concerning prohibited practices may be submitted to the board. Proceedings against the party alleged to have committed a prohibited practice shall be commenced within six months of the date of such alleged practice by service upon the accused party by the board of a written notice, together with a copy of the charges. The accused party shall have seven days within which to serve a written answer to such charges, unless the board determines an emergency exists and requires the accused party to serve a written answer to such charges within 24 hours of their receipt. Hearings on prohibited practices shall be conducted in accordance with the provisions of the Kansas administrative procedure act. If the board determines an emergency exists, the board may use emergency adjudicative proceedings as provided in K.S.A. 77-536, and amendments thereto. A strike or lockout shall be construed to be an emergency. The board may use its rulemaking power, as provided in K.S.A. 75-4323, and amendments thereto, to make any other procedural rules it deems necessary to carry on this function.

(b) The board shall either dismiss the complaint or determine that a prohibited practice has been or is being committed. If the board finds that the party accused has committed or is committing a prohibited practice, the board shall make findings as authorized by this act and shall file them in the proceedings.

(c) Any action of the board pursuant to subsection (b) is subject to review and enforcement in accordance with the Kansas judicial review act. The procedures for obtaining injunction and allied remedies shall be as set forth in the code of civil procedure, except that the provisions of K.S.A. 60-904, and amendments thereto, shall not control injunction actions arising out of public employer-employee relations under this act.

(d) If there is an alleged violation of either subsection (b)(8) or (c)(5) of K.S.A. 75-4333, and amendments thereto, the aggrieved party is authorized to seek relief in district court in the manner provided for the board in subsection (c) while proceedings on such prohibited practices are pending before the board. Any ruling of the district court shall remain in effect until set aside by the court on motion of the parties or of the board or upon review of the board's order as provided by subsection (c).

History: L. 1971, ch. 264, § 14; L. 1973, ch. 363, § 6; L. 1986, ch. 318, § 139; L. 1988, ch. 356, § 305; L. 2010, ch. 17, § 202; July 1.

Law Review and Bar Journal References:

"Rethinking Kansas Administrative Procedure," Marilyn V. Ainsworth and Sidney A. Shapiro, 28 K.L.R. 419, 435, 436 (1980).

Attorney General's Opinions:

Qualification of member of public employee relations board; determination by senate confirmation. 96-25.

CASE ANNOTATIONS

1. Prohibited practice charged under K.S.A. 75-4333 (c)(1); misconduct found not to have substantially interfered with representation election; scope of judicial review stated. Kansas Ass'n of Public Employees v. Public Service Employees Union, 218 Kan. 509, 510, 511, 544 P.2d 1389.

2. District court order setting aside order of board arbitrary and capricious; authority exceeded by substituting its judgment for that of board. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 418, 419, 581 P.2d 817.

3. Provisions for limited scope of review by district court upheld; no separation of powers violation. Behrmann v. Public Employee Relations Board, 225 Kan. 435, 436, 437, 438, 439, 444, 591 P.2d 173.

4. Upon review, findings of facts conclusive unless not supported by substantial evidence and record. Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 808, 667 P.2d 306 (1983).

5. Absent provisions herein, public employees are included in anti-injunctive ban of K.S.A. 60-904(c). City of Kansas City v. Carpenters Dist. Council of Kansas City, 237 Kan. 295, 301, 699 P.2d 493 (1985).

6. No positive obligation on city to refrain from discharging without cause; ordinance requiring city residence not contrary to act. Kansas City, Kan. Frat. v. City of Kansas City, 620 F. Supp. 752, 760 (1984).

7. Whether contract provision was mandatory subject of bargaining between employer and state employees examined. State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 280, 894 P.2d 777 (1995).

8. Cited; PERB acted beyond its authority in awarding monetary damages. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 40 Kan. App. 2d 714, 716, 727, 728, 195 P.3d 259 (2008).

9. PERB not authorized to award money damages for prohibited practice violations. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 228 P.3d 403 (2010).


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