STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
January 18, 1974
Dr. Jan Ebersdorfer, Acting Secretary
Dept. of Education and Cultural Affairs
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 74-03
SDCL 3-18 provides election procedures for determining representation for public employees.
Dear Dr. Ebersdorfer:
You have submitted the following factual situation:
Since February 10, 1969, the Sioux Falls Independent School District No.1 has had a written policy governing negotiation with the association representing the certificated personnel of the school district (teachers). This policy was adopted by resolution of the Board of Education of the school district following many informal sessions with the Teachers Association before the enactment of the South Dakota statutes on public employees' unions (now SDCL 3-18).
Section IV of Policy 4135 on "Recognition" reads as follows:
"The Board recognizes the advantages of good faith relationships with certificated personnel within statutory limitations. "The Board recognizes the Association as the representative of certificated 'Personnel of the district represented in the Joint Negotiation Committee provided that the Association presents to the Board not later than the regular November board meeting each year a notarized statement verifying that their authorizations constitute more than fifty (50) per cent of the certificated personnel of the district for the current year. The Board may also institute an election to determine what group shall represent all certificated personnel, as certificated personnel are defined in Section IG. Such election ballot must include the choice of having no representation.
"The Association shall recognize the board as elected representatives of the people. The Association shall also recognize the legal authority of the Board and the responsibilities of the superintendent for the operation of the district school system.
"Any certificated employee or group of employees except those designated by the Board as administrative personnel may present a proposal to the board through the superintendent, which proposal shall then be referred to the Joint Negotiating Committee."
This section has remained unchanged sinie the policy was first adopted, except for changing the fourth line in the second paragraph from "October" to "November" in January, 1970.
From the first year of professional negotiations down to the present time, the Sioux Falls Education Association has been the representative of the certificated personnel of the district. From time to time that association has proposed changes in the written policy on professional negotiations, and certain changes have been formally adopted by the Board after such negotiations. At no time until the present has the Sioux Falls Education Association proposed any change in the section of the policy on "Recognition."
About a year ago, on October 9, 1973, the Board of Education took official action to require an election to be held to determine what group should represent the certificated personnel, before negotiations were to commence during the 1973-74 school year. This action was pursuant to the second paragraph of the above quoted policy, last two sentences, which provides:
"The Board may also institute an election to determine what group shall represent all certificated personnel, as certificated personnel are defined in Section IG. Such election ballot must include the choice of having no representation."
In a good faith attempt to obtain such an election under the above policy the Board proposed certain guidelines for the election. The Sioux Falls Education Association filed grievance, charging, among other things, that the policy of the school district so far as "Recognition" is concerned, was invalidated and superseded by SDCL 3-18. The Education Association requested the Division of Labor and Management Relations to conduct the election, and such election has now been held, under the supervision of the Division of Labor and Management Relations and under the rules and regulations promulgated by that Division.
In connection with the above factual situation, you have asked the following question:
May the Board "institute an election to determine what group shall represent all certificated personnel" as provided in its longstanding written policy, or is an election conducted by the Dee department of Manpower Affairs under SDCL 3-18 the only election in which the determination of the representative group may be had?
SDCL 3-18-2 reads in part as follows:
... Public employees shall have the right to designate representatives for the purpose of meeting and negotiating with the governmental agency or representatives designated by it with respect to grievance procedures and conditions of employment ....
SDCL3-18-3 reads as follows:
Representatives designated or selected for the purpose of formal representation by the majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all employees in such unit for the purpose of representation in respect to "rates of pay, wages, hours of employment, or other conditions of employment; provided that any individual employee, or a group of employees, shall have the right at any time to present grievances to their employer and to have such grievances adjusted without the intervention of the formal representative as long as the adjustment is not inconsistent with the terms of any settlement with the formal representative then in effect, and provided that the formal representative has been given opportunity to be present at such adjustment.
SDCL 3-18-5 reads as follows:
When a question concerning the representative of employees is raised by the governmental agency, labor or employee organization, or employees, the department of manpower affairs or any person designated by it shall, at the request of any of the parties, investigate such question and certify to the parties in writing, the name or names of the representatives that have been designated or selected. The filing of a petition for the investigation or certification of a representative of employees by any of the parties shall constitute a question within the meaning of this section. In any such investigation, the department may provide for an appropriation hearing, and shall take a secret ballot of employees to ascertain such representatives for the purposes of formal recognition. If the department has certified a formally recognized representative in a unit of employees as provided in ยง3-18-4, it shall not be required to consider the matter again for a period of one year unless it appears to it that sufficient reason exists.
It is my opinion that based upon the above statutes and in particular to SDCL 3-18-5 that these statutes supersede the written policy of the school district when there is a conflict. In answer to your specific question, it is my opinion that an election conducted by the Department of Manpower Affairs under SDCL 3-18 is the proper election procedure to follow.
Respectfully submitted,
Kermit A. Sande
Attorney General
