May 30, 1975
Mr. Dennis Finch
Deputy Secretary
Dept. of Manpower Affairs
Corner Drug Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-96
International Union of Operating Engineers, Local 80C, as exclusive collective bargaining agent
Dear Mr. Finch:
You have asked for my opinion based on the following factual situation:
The International Union of Operating Engineers, Local 80C, has been certified as the exclusive collective bargaining agent of the employees of the Meade County Highway Department. This certification was issued by the Department of Manpower Affairs pursuant to its authority under SDCL 3-18-5 following a secret ballot election of the employees. The Meade County Board of Commissioners feels that since they are charged with the responsibility of operating the county and particularly with reference to fixing salaries and numbers of clerks in the various county offices under
SDCL 7-7-20; to negotiate with the union on those matters would be an unconstitutional delegation of authority.
Based on the foregoing, you have asked two specific questions:
1. Whether the requirement under SDCL 3-18-2 making it mandatory for the county commission to negotiate with the designated representative of its employees, amounts to an unconstitutional delegation of authority?
2. Whether the Legislature, in giving authority to the Department of Manpower Affairs to administer the provisions of 3-18, made an unconstitutional delegation of authority?
Political subdivisions such as counties are granted certain legislative powers by law including the power to fix salaries. Legislative authority cannot be delegated to a private entity. (See House of Seagram Inc. v. Assam Drug Co., 176 N.W. 2d 491 (1970).)
It is clear that SDCL 3-18-2 requires counties as well as other political subdivisions to negotiate in good faith with the designated representative of its employees. It is likewise clear that such things as salaries must be negotiated. However, in requiring the county to negotiate, the law does not require them to accept the proposal of the union or labor organization. In fact, sections 3-18-7 and 3-18-8 clearly provide that the governing body makes the final decision after negotiating with its employees' representative. See Smyser, Public Employees and Public Employees Unions: Their Rights and Limitations in South Dakota, 17 S.D. Law Rev. 1 (1972). In Board of Regents v. Carter, Nos. 11310, 11312, 11313 and 11323 (S.D. Sup.Ct., April 25, 1975), the South Dakota Supreme Court held:
The ability of the Regents to unilaterally set salaries, discharge employees, or establish employment qualifications is left intact. The board's basic right of control is left untouched, and SDCL 3-18 is, therefore, a permissible restriction on the exercise of that control.
Therefore, the requirement that a county negotiate with its employees' labor organization does not amount to an unlawful delegation of authority. The county makes the final decision, not the union. Therefore, it is inconceivable that there would be any delegation of the county's authority to fix salaries to the union under these circumstances.
Exclusive bargaining provision does not violate rights of those who wish not to belong to the union. They are given specific right to not join the union under SDCL 3-18-2 and they are also given specific right to present grievances individually and to have them adjusted without intervention by the formal representative so long as the adjustment is not inconsistent with the terms of any settlement with the formal representative. SDCL 3-18-3. These provisions clearly guarantee the "right to work" provided in section 2 of article VI of the South Dakota Constitution. Therefore, it is my opinion that SDCL 3-18-2 is not an unconstitutional delegation of authority -legislative or otherwise.
As to your second question, the answer is likewise that there is no unlawful delegation of authority. The final authority to fix salaries still rests in the county commission, even though the Department of Manpower Affairs may be requested to conciliate an impasse under SDCL 3-18-3.1. The department only makes a recommendation for settlement of the impasse under SDCL 60-10 and this in no way binds the county.
I am therefore of the opinion that SDCL 3-18 is constitutional with respect to both questions posed by the county.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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