Negotiability: Reduction in Force and Recall

LEGAL OPINION

SDCL 3-18-3 establishes the right of public employees, through their bargaining representative, to bargain “in respect to rates of pay, wages, hours of employment, or other conditions of employment.”  The South Dakota Supreme Court, in Rapid City Education Association v. Rapid City Area School District No. 51-4, 376 NW2d 562 (SD 1985), established a three-prong test to determine whether a particular subject constituted a condition of employment on which school districts must negotiate.  According to that test, a subject is a negotiable condition of employment only if:        

1. it intimately and directly affects the work and welfare of public employees;
2. it has not been preempted by statute or regulation; and
3. it is a matter on which the negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of government policy.

In 2001, the South Dakota Supreme Court ruled in Webster Education Association v. Webster School District #18-4 and Board of Education, 2001 SD 94, 631 NW2d 202, that the procedures or policies regarding how to reduce staff or how to recall staff and what criteria are to be used in making those decisions are mandatorily negotiable, having met the three prong Rapid City test outlined above. In the ruling, the court said:

“The district has the exclusive managerial discretion to make decisions as to when to implement its RIF and Recall Policy, but once the District exercises such discretion, the procedure laid out in the RIF and Recall Policy is subject to mandatory negotiation.” 

As just stated, the procedures or policies regarding how to reduce staff or how to recall staff and what criteria are to be used in making those decisions (i.e., who to RIF or recall and how this is to be done) are mandatorily negotiable.  However, decisions on whether or not to reduce or recall staff are within the sole managerial discretion of school boards.