Legal Alert

SCHOOL BOARDS CAN’T TAKE AWAY YOUR LEGAL RIGHTS WITHOUT . . .

The SD Department of Labor case involved a ULP filed on behalf of the Waubay Education Association (WEA) against the Waubay Board of Education.  Among the issues in the case was the board’s proposal regarding merit pay which would have prevented WEA bargaining unit members from filing a grievance, ULP, or Circuit Court appeal regarding the awarding (or no awarding) of merit pay.  WEA refused to accept this language.  Impasse resulted and the board unilaterally imposed the language per state law.  WEA (through SDEA legal assistance) filed the ULP, claiming that the board could not unilaterally take away rights guaranteed by law.  The SD Department of Labor agreed, finding that the imposed language was a restraint in the exercise of WEA’s rights guaranteed by law.  Thus, the board committed a ULP when it imposed language that was a restraint in the exercise of the association’s rights guaranteed by law.

DON’T bargain away any legal rights you currently enjoy — you may never get them back.  If you have any questions — call your UniServ Director immediately!

Another warning: board negotiators may claim they can impose whatever restrictions they want --don’t let them intimidate or fool you.  If they do attempt to impose legally restrictive language on you that had not been previously negotiated — call your UniServ Director immediately so we can begin the process to stop its implementation.

SCHOOL BOARDS MUST PLAY THE GAME . . .

Occasionally, when negotiations break down, a school board may threaten to just impose its last offer without going through mediation (conciliation) and fact finding even if either side requests such.  Don’t fall for this threat.  When, several years ago, the Flandreau school board tried to proceed directly to fact finding without going through mediation first, the Flandreau Education Association (FEA) (through SDEA legal assistance) forced both the school board and the SD Department of Labor to proceed with mediation. In this particular case, the school board convinced the SD Department of Labor to skip mediation and just schedule fact finding, which the SD Department of Labor did without consulting FEA.  When FEA learned what was happening, it filed a court action seeking compliance with the bargaining laws.  When the SD Department of Labor was served with the legal papers, it reversed itself and told the school board that mediation would be done.  The South Dakota Supreme Court affirmed this required participation in International Union of Operating Engineers v. City of Pierre, 2011 SD 37, 800 NW2d 738.  If either party asks for mediation, the only way to get out of it is if both sides tell the SD Department of Labor not to conduct mediation.  Just one side asking the SD Department of Labor to stay away is not enough.

SCHOOL BOARDS MUST IMPOSE ITS LAST OFFER AS A WHOLE . . .

If negotiations break down and no agreement is reached, by statute, a school board is required to impose its last offer.  Occasionally, a school board might deviate from that last offer.  Do not let the school board do this.  According to the SD Supreme Court in Spearfish Education Association v. Spearfish School District, 2010 SD 26, 780 NW2d 481, a school board must impose its last offer as a whole and cannot pick and choose to deviate from it for some bargaining unit members and not others.  In the Spearfish case, the school board imposed a new hiring schedule that required some of the new hires’ salaries (who were hired while negotiations were still ongoing on the previous hiring schedule) to be reduced.  The Spearfish school board failed to impose this requirement.  The Spearfish Education Association (SEA) challenged this refusal by the school board to implement its full last offer.  The case ultimately went to the SD Supreme Court with the Supreme Court upholding SEA’s position that the school board’s last offer had to be imposed as a whole.  If your school board imposes a contract on you, make sure it does so correctly.

REMEMBER, if you believe your bargaining rights are being ignored or compromised, call your UniServ Director immediately so we can advise you as to the best course of action.