Impasse, Conciliation, Factfinding, Imposition, and Unfair Labor Practice

Impasse

Before declaring an impasse, either side must present a Last Best Offer (LBO). This will be a comprehensive offer of all items in the bargain including items previously tentatively agreed to plus any additional items the party is willing to offer. Using this terminology is a signal that the offering party is done bargaining.

However, the other party to the bargain is not required to accept the LBO. They may come back with a counteroffer and ask to continue bargaining. An LBO is NOT an end to negotiations until one party to the bargain issues a written declaration of impasse.

SDCL 3-18-8.1. Intervention by department on failure to reach agreement. In case of impasse or failure to reach an agreement in negotiations conducted under the provisions of this chapter, either party may request the Department of Labor and Regulation to intervene under the provisions of §§ 60-10-1 to 60-10-3, inclusive. Such request shall be mailed within ten days after a written statement is delivered to the designated representative for the other party declaring an impasse. Nothing in this section prohibits the parties to an impasse from adopting any other procedure to facilitate a settlement that is mutually agreeable.

While either party may declare impasse, the education association usually stands to gain more from continuing to attempt to negotiate a settlement. School districts know that in a right to work state, they hold most of the cards and are usually the first to declare impasse. Even after receipt of a declaration of impasse, the receiving party may still attempt to communicate and offer to continue to bargain, make counteroffers, or otherwise reach agreement.

If you have not already been in contact with your UniServ Director prior to this move, you should contact them immediately when you receive the letter. At this point, you need to call a membership meeting and have your members vote to:

• Accept the district’s last best offer.
• Vote to request conciliation from the Dept. of Labor.
• Do nothing and allow the district to impose.

Conciliation

The receipt of the declaration of impasse triggers a 10-day window (see SDCL 3-18-8.1 above) in which to request intervention by the SD Department of Labor (DOL) to attempt to mediate a resolution between the parties. This is known as conciliation. Your local may choose to go through conciliation, or you may allow the 10-day window to expire, at which time the district may impose its last best offer.

If your local votes to request conciliation, your UD will help you file the request. DOL will schedule a conciliation meeting on-site in your school at a mutually agreed upon time. You will be told going into the session that if conciliation does not result in a settlement, that any offers or concessions made during conciliation are off the table and both parties are back at the last best offer as it stood prior to the start of conciliation. In SD, conciliation often does not result in a settlement, but it is a necessary step on the path to factfinding. When it does result in a settlement, it is a welcome relief. When it does not result in a settlement, you have two options:

• Accept the district’s last best offer.
• Vote to request a fact finding hearing from the Dept. of Labor.
• Do nothing and allow the district to impose.

Fact Finding Hearing

Even after conciliation has failed, a local association may request a hearing before an officer of the SD Department of Labor, known as a factfinder. Such request must be made within 20 days of the conclusion of the conciliation meeting.

SDCL 60-10-2. Unsuccessful efforts to conciliate — Investigation of matters in difference — Recommendation for settlement. If its efforts as conciliator prove unsuccessful, the Department of Labor and Regulation shall, if requested by either party, impartially investigate the matters in the difference between the parties. The request to the department shall be mailed within twenty days after the conclusion of the conciliation procedure provided for in § 60-10-1. The department shall give each party ample opportunity for presentation of the facts and shall make a report of the issues involved and a recommendation for settlement of the controversy. The department shall furnish a copy of its recommendation to each of the parties and to any local newspaper for publication for the information of the public.

These hearings take place in Pierre. Again, you should work with your UD to request and prepare for this hearing. This is a chance for you to present the items upon which you have tentatively agreed, as well as to present the issues upon which there is no agreement. You may present evidence to make the case for your position on each issue and provide documentation. The district will be given a chance to do the same.

The hearing officer will take all information presented under advisement and within a couple of weeks will issue a decision. This decision will be mailed to the parties first and one day later will be mailed to local media for publication. The decisions are all-or-nothing, meaning that they will rule in favor of either the school district’s package or in favor of the local association’s package. They do not rule on each individual issue. In the end, even if the ruling is in favor of the local association, the school district may still vote to impose its last best offer because SD is a right-to-work state.

Imposition

As stated above, the district can impose its last best offer even with all the options available to the local association to try to reach a settlement. When this happens, districts will sometimes give a copy of the imposed contract to the local association to sign. Locals should realize that a signature is not required on an imposed master contract. In fact, a signature by the local president or chief negotiator will appear to be a consent to the offer. (Don’t confuse this with the individual work contracts issued to each employee. These MUST be signed and returned if you intend to keep working in your district.)

Unfair Labor Practices

Unfair labor practices (ULP) can be committed by both employer and employee organizations. They can happen at any time, but accusations of unfair labor practices are not uncommon during bargaining season. Both sides of table have an obligation to bargain in good faith and a well-documented case of failure to do so may result in a ULP charge being filed. Talk with your UD if you have potential ULP issues. SDEA can file a ULP charge if the SDEA General Counsel determines there is merit to do so. It is important to know that a ULP must be filed within 60 days of the occurrence of the event. It is also important to make sure that no one on your bargaining team commit a ULP. For instance, bargaining away from the table by having conversations with board members about bargaining issues during bargaining season is a ULP. Your members need to understand their obligations.

SDCL 3-18-3.1. Unfair practices of employers defined. It shall be an unfair practice for a public employer to:

1. Interfere with, restrain or coerce employees in the exercise of rights guaranteed by law;
2. Dominate, interfere or assist in the formation or administration of any employee organization, or contribute financial or other support to it; provided, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
3. Discriminate in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any employee organization;
4. Discharge or otherwise discriminate against an employee because he has filed a complaint, affidavit, petition or given any information or testimony under this chapter;
5. Refuse to negotiate collectively in good faith with a formal representative; and
6. Fail or refuse to comply with any provision of this chapter.

SDCL 3-18-3.2. Unfair practices of employee organizations defined. It is unfair practice for an employee organization or its agents to:

1. Restrain or coerce an employee in the exercise of the rights guaranteed by this chapter. However, this subdivision does not impair the right of an employee organization to prescribe its own requirements with respect to the acquisition or retention of membership therein;
2. Restrain or coerce an employer in the selection of his representative for the purposes of collective bargaining or the adjustment of grievances;
3. Cause or attempt to cause an employer to discriminate against an employee in violation of subdivision 3-18-3.1 (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground; and
4. Refuse to negotiate collectively in good faith with an employer, provided it is the formal representative.