Oberle v. City of Aberdeen

• Decision Date: 08 May 1991
• Docket Number: Nos. 17078,17098,s. 17078
• Citation: 470 N.W.2d 238
• Parties: 139 L.R.R.M. (BNA) 2337 Leonard OBERLE, on behalf of himself and all firefighters of the City of Aberdeen Fire Department excluding the Chief, Deputy Chief and Chief of the Fire Prevention Bureau, and Local 446 International Association of Firefighters, their duly certified representative, Plaintiffs and Appellants, v. CITY OF ABERDEEN, a Municipal Corporation and Thomas L. Hopper, Safety Commissioner, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 238

470 N.W.2d 238

139 L.R.R.M. (BNA) 2337

Leonard OBERLE, on behalf of himself and all firefighters of the City of Aberdeen Fire Department excluding the Chief Deputy Chief and Chief of the Fire Prevention Bureau, and Local 446 International Association of Firefighters, their duly certified representative, Plaintiffs and Appellants, v. CITY OF ABERDEEN, a Municipal Corporation and Thomas L Hopper, Safety Commissioner, Defendants and Appellees.

Nos. 17078, 17098.

Supreme Court of South Dakota.

Argued Oct. 24, 1990.

Decided May 8, 1991.

Dennis W. Finch of Finch, Viken, Viken & Pechota, Rapid City, for plaintiffs and appellants.

Tom Tobin of Tonner & Tobin, Aberdeen, for defendants and appellees.

MORGAN, Retired Justice.

This appeal, initiated by the Aberdeen Firefighters Union (Union), by its president Leonard Oberle, and the notice of review filed by the City of Aberdeen (City), lie from a decision of the trial court affirming in part and reversing in part the decision of the Department of Labor, Division of Labor and Management (Department), which resulted from an unfair labor practice complaint filed by Union. Department's decision held that City had committed an unfair labor practice by eliminating the captain positions and by unilaterally banning the practice of "time trading" which was a mandatory subject of bargaining. We affirm in part and reverse in part.

The union in this case was organized after the decision of this court in Appeal of City of Aberdeen, 270 N.W.2d 139 (S.D.1978), wherein this court reversed a circuit court decision, thus affirming Department's decision to allow the firemen to organize a union, separate and independent from the bargaining unit representing other city employees. In that decision, we also affirmed the Department and circuit court decisions that the position of captain is not a supervisory position, and thus captains were not barred from participation in the bargaining unit. Id.

Since that time, Union and City have met annually and negotiated a collective bargaining agreement for the subsequent year. In the 1988 negotiations for the 1989 agreement, City raised the subject of eliminating the three captain positions. No agreement was reached on this issue. The subject of modification or elimination of the "time trading" practice was not broached during the negotiations. The parties were unable to reach a new contract and on January 4, 1989, City and Union agreed that "[a]ll the provisions of the 1988 agreement except for [salary adjustments] shall become effective on January 1, 1989."

On January 5, 1989, City posted two notices which are the subject of this dispute. The first notice stated that all captain positions would be laid off and the three existing positions would be terminated effective March 1, 1989. The second notice stated that the trading of time between firefighters would no longer be allowed as of January 15, 1989.

On January 8, 1989, despite their knowledge of the two unilateral changes announced in the notices, the union membership met, considered, and ratified the January 4 agreement as their 1989 contract. On January 16, 1989, less than two weeks after the notice of the elimination of the three captain positions, City issued a position announcement, creating three deputy chief positions. The deputy chiefs are not part of the Union's bargaining unit. See Appeal of City of Aberdeen, 270 N.W.2d 139.

On January 18, 1989, Union filed an unfair labor practice complaint with Department. Union alleged that the unilateral elimination of the captain position violates SDCL 3-18-3.1, -3.2, -3.3, and -3.5, and that unilateral elimination of the time trading policy violates SDCL 3-18-3.1, -3.3, and -3.5. City countered that the question of whether to have captains is not negotiable, that time trading was never part of a negotiated contract between City and Union, and that Union accepted these changes by ratification of the 1989 contract because Union had notice of the changes prior to ratification by the membership.

After a formal hearing, Department determined that City's conduct in eliminating the captain positions constituted an unfair labor practice in violation of SDCL 3-18-3.1(1), (5), and (6). Department also held that City's refusal to negotiate regarding the time trading policy was an unfair labor practice in violation of SDCL 3-18-3.1(5). In particular, Department found:

XXIII.

That although the city contends that the job description for the Deputy Chiefs entails more than was done by the Captains, the record is clear that the duties of the Captains were merged into the new Deputy Chief positions.

XXIV.

That the city, through the testimony of safety commissioner Thomas Hopper, admitted that the primary reason for the elimination of the captains' positions was that they did not feel these captains should be under the union.

XXV.

That the City could not give any other reasons other than a general statement that the elimination of the positions was done to provide administrative assistance to the Chief, however, no examples were given for administrative assistance nor were there any other reasons advanced for said changes.

XXVI.

That the time trade policy was one of long duration and custom and practice within the Aberdeen Fire Department.

City filed its notice of appeal to the circuit court on August 3, 1989. City failed to file a statement of issues on appeal as required by SDCL 1-26-31.4, however, and as a result, on September 18, 1989, Union filed a motion to dismiss. At the hearing on the matter on November 7, 1989, City filed a motion for an extension of time in which to file its statement of issues. On November 16, 1989, the trial court granted City relief pursuant to SDCL 1-26-30.5, extending the time for City to file its statement of issues. City filed its statement of issues on November 21, 1989.

On administrative appeal, the circuit court reversed Department's decision regarding the elimination of the captain positions. The circuit court concluded:

IV.

That the unilateral change in the definition of the bargaining unit here was not an unfair labor practice because the union was given an opportunity to bargain on the subject, that the union waived its right to bargain this issue and did ratify a contract which authorized the City to lay off the Captains.

However, the circuit court affirmed Department's decision that unilateral elimination of the time trading policy constituted an unfair labor practice. This appeal by both parties followed.

The Union raises two issues:

1. Did City's failure to timely file a statement of issues as required by SDCL 1-26-31.4 deprive the circuit court of jurisdiction over the appeal from the Department of Labor?

2. Was City's removal of captains from the bargaining unit of the firefighters union an unfair labor practice?

By notice of review, City raises two additional issues:

3. Was time trading a mandatory subject of bargaining?

4. Does the 1990 contract between City and Union render this appeal moot?

This case is an administrative appeal and, as such, the scope of review is governed by SDCL 1-26-36. When reviewing questions of fact, it is the duty of both the circuit court and this court to determine whether the agency's findings of fact are clearly erroneous. Sharp v. Sharp, 422 N.W.2d 443, 447 (S.D.1988); Permann v. Department of Labor, Unemployment Ins. Div., 411 N.W.2d 113, 116-17 (S.D.1987). Further, "the question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding.... [T]he court shall give great weight to the findings made and inferences drawn by an agency on questions of fact." Schlenker v. Boyd's Drug Mart, 458 N.W.2d 368, 371 (S.D.1990), quoting Lawler v. Windmill Restaurant, 435 N.W.2d 708, 711 (S.D.1989) (Morgan, J., concurring specially). See SDCL 1-26-36. When reviewing questions of law, however, the conclusions of law drawn by the agency and by the circuit court are fully reviewable. Sharp, 422 N.W.2d at 447; Permann, 411 N.W.2d at 117.

We will deal with the two procedural issues first. Because City contends that the issues raised by Union's appeal have been rendered moot by virtue of the 1990 contract between the parties, we consider this issue first. In its brief, City states that it negotiated the issues regarding the captain positions and the time trading when bargaining over the 1990 contract. An impasse was declared and City subsequently implemented its last best offer, according to its brief. City also directs our attention to a decision by Department involving the 1990 contract, asserting that this administrative decision upheld the issues contested here.

We begin by noting that none of the matters involving the 1990 contract or its negotiation are part of the record before us in this appeal, and cannot be considered here. See SDCL 15-26A-47. Also, because the 1990 contract was admittedly implemented following an impasse, the parties clearly have not resolved the issues of captains and time trading. Finally, the decision of Department which counsel tells us upheld the 1990 contract, relates only to the interpretation of the emergency leave provision and the court appearances provision of the 1989 contract. Department's decision did not address the issues of the termination of captain positions and time trading, and, contrary to counsel's representation, did not purport to ratify the 1990 contract. For these reasons, we cannot conclude that Union's appeal is moot.

In the second procedural issue Union argues that City's failure to timely file a statement of issues, pursuant to SDCL 1-26-31.4, deprived the circuit court of jurisdiction to review Department's ruling and the trial court erred in extending the time for filing.

The statute at issue here is SDCL 1-26-31.4, and it states as follows:

Within ten days after the filing of the notice of appeal as...