General Drivers and Helpers Union v. Brown County, 11991

CourtSupreme Court of South Dakota
Writing for the CourtPORTER
Citation269 N.W.2d 795
Parties99 L.R.R.M. (BNA) 2813 GENERAL DRIVERS AND HELPERS UNION et al., Appellant, v. BROWN COUNTY, a political subdivision of the State of South Dakota, acting by and through its duly elected Sheriff, et al., Respondents.
Docket NumberNo. 11991,11991
Decision Date07 September 1978

Page 795

269 N.W.2d 795
99 L.R.R.M. (BNA) 2813
BROWN COUNTY, a political subdivision of the State of South
Dakota, acting by and through its duly elected
Sheriff, et al., Respondents.
No. 11991.
Supreme Court of South Dakota.
Sept. 7, 1978.

Page 796

Harry H. Smith of Smith & Smith, Sioux City, Iowa, for appellant; Robert L. O'Connor, Sioux Falls, on brief.

Dennis Maloney of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for respondents.

PORTER, Justice.


The Division of Labor and Management Relations, South Dakota Department of Labor, after hearing, concluded that the Sheriff of Brown County had violated SDCL 3-18-3.1(1), (2), (3), and (6) when he discharged two deputy sheriffs on the pretext that they had driven sheriff's cars unauthorized miles and that they were not doing their share of the work when, in fact, his motivation for the discharge was his intent to interfere with public employee union activity authorized by SDCL 3-18.

The Division ordered the deputies reinstated with back pay and no loss of seniority benefits. The circuit court, on review under the Administrative Procedure Act, SDCL 1-26, reversed. On this appeal from

Page 797

the circuit court judgment we reverse and remand for implementation of the Division order.

David Jark and Frank Fryer were Sheriff's deputies of Brown County. Jark was hired in November 1974 and Fryer in July, 1975.

In August of 1975, Jark, Fryer, and deputy Robert Grass talked with the Sheriff about their interest in joining the General Drivers and Helpers Union, appellant here. The deputies complained that they were underpaid for the number of hours spent on the job.

On August 21, 1975, an organizational meeting for all deputies in the Sheriff's office was held at the Holiday Inn in Aberdeen to discuss unionization. The union business agent was present. Jark and Fryer acted as spokesmen. The agent announced that a number of Sheriff's deputies had indicated an interest by signing authorization cards. The Sheriff came to the meeting but left early.

The next day Sheriff's deputies working outside Aberdeen were terminated, but shortly thereafter were rehired.

At 4:30 p. m., September 9, 1975, the Sheriff called a meeting of all deputies. At the meeting he announced that Jark had 6,000 unauthorized miles and Fryer 2,800 unauthorized miles on the Sheriff's cars assigned to them. The Sheriff then announced that Jark and Fryer were discharged, effective immediately.

On September 19, 1975, appellant Union filed an unfair labor practice complaint with the South Dakota Department of Labor, Division of Labor and Management Relations. After hearing, the deputy director of the Division entered findings, conclusions and decision holding that the discharge of Jark and Fryer constituted an unfair labor practice under SDCL 3-18-3.1. On the appeal of Brown County, the circuit court reversed. The Union appeals from the judgment of the circuit court.


This appeal presents the issue of whether there is substantial evidence on the record made before the Division from which the hearing officer could reasonably infer that the deputies were discharged in violation of the public employee union law, SDCL 3-18-3.1.


The Division concluded that when the Sheriff discharged deputies Jark and Fryer, he violated SDCL 3-18-3.1(1), (2), (3) and (6), which subdivisions provide:

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;

(6) Fail or refuse to comply with any provision of this chapter.

When Division decisions are appealed, the court cannot substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. SDCL 1-26-36. 1 In the present case, the circuit court

Page 798

concluded that the termination was based on good and legitimate cause within the powers granted the Sheriff by statute; in its memorandum decision the circuit court stated that the decision of the Division was arbitrary and clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. On appeal the County and the Sheriff contend that the judgment of the circuit court was correct because the decision of the Division was clearly an unwarranted exercise of discretion. The Union, on the other hand, argues that the ruling of the trial court should be reversed because there was substantial evidence in the record at the administrative hearing to support the decision of the Division.

Although we are dealing with an alleged violation of SDCL 3-18-3.1, we can look to the judicial interpretation of its federal counterpart, 29 U.S.C.A. § 158, 2 which is part of the National Labor Relations Act, for guidance in reaching our decision. See In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). We recognize the statutory right of the Brown County Sheriff to remove deputies from his office at will when he so desires. SDCL 7-7-21. 3 His right to discharge deputies in his office is limited, however, by our statute giving public employees the right to form and join labor or employee organizations. SDCL 3-18-2. 4 Therefore, when there are two possible reasons for an employee's discharge,

Page 799

one valid and the other an unfair labor practice, the fact finder must look for the moving cause.

It has long been established that for the purpose of determining whether or not a discharge is discriminatory in an action such as this, it is necessary that the true, underlying reason for the discharge be established. That is, the fact that a lawful cause for discharge is available is no defense where the employee is Actually discharged because of his Union activities. A fortiori, if the discharge is Actually motivated by a lawful reason, the fact that the employee is engaged in Union activities at the time will not tie the employer's hands and prevent him from the exercise of his business judgment to discharge an employee for cause. N. L. R. B. v. Ace Comb Company, 342 F.2d 841, 847 (8th Cir. 1965).

In the present case the Division has the power to make the factual determination of discrimination. If the conclusions of the Division are based upon substantial evidence on the whole record, this court must accept them. Federal cases summarize the function of a court on review as follows:

It would indeed be the unusual case in which the link between the discharge and the union activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the Board is free to draw any reasonable inferences. As we stated in Kitty Clover, Inc. v. N. L. R. B., 208 F.2d 212, 214 (8 Cir. 1953):

"The Board * * * is the judge of the facts, the credibility of the witnesses, and the weight of the evidence, and may draw inferences from circumstantial, as well as direct, evidence. It is only when the Board's determination is without adequate support in the evidence * * * that this Court may set aside an order or refuse its enforcement." N. L. R. B. v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965).

We said in Piper v. Neighborhood Youth Corps, S.D., 241 N.W.2d 868, 869 (1976):

(I)n reviewing the circuit court's judgment under the APA this court must make the same review of the administrative tribunal's action as does the circuit court under SDCL 1-26-37. Furthermore, this court must make its decision as to whether the administrative decision can be sustained unaided by a presumption that the circuit court's decision is correct.

The mere fact of a discharge in and of itself warrants no inference that it was improperly motivated. N. L. R. B. v. McGahey, 233 F.2d 406 (5th Cir. 1956). At the heart of the analysis here, therefore, is the question of employer motivation. Guidelines for examining this question include:

1. Whether the employee had been criticized or specifically warned of his shortcomings;

2. Whether the employee was given any advance notice of his discharge;

3. Whether the employer offered economic benefits if the employee would refrain from union activity;

4. Whether the employer was opposed to unionization;

5. Whether the employee was competent;

6. Whether the employee was a known leader of the unionization drive and the employer knew of the employee's activity in the union at the time of the discharge;

7. Whether the discharge plan was promulgated with speed;

8. Whether the employer gave an implausible explanation for its action;

9. Whether the discharged employee was singled out for special treatment;

10. Whether the reasons for discharge given at the hearing were the same as those given to the employee at the time of the discharge.

See McGraw-Edison Company v. N. L. R. B., 419 F.2d 67 (8th Cir. 1969); N. L. R. B.

Page 800

v. Frazier, Inc., 411 F.2d 1161 (8th Cir. 1969); Kellwood Company, Ottenheimer Bros. Mfg. Div. v. N. L. R. B., 411 F.2d 493 (8th Cir. 1969); N. L. R. B. v. Melrose Processing Co., 351 F.2d 693 (8th Cir. 1965); Bennett's Restaurant v. Industrial Commission, 127 Colo. 271, 256 P.2d 891 (1953); Mid-Plains Ed. Ass'n v. Mid-Plains Neb. Tech. Col., 189 Neb. 37, 199 N.W.2d 747 (1972); Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975). In order to determine whether the Division's conclusion has adequate support in the...

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    ...that where an unfair labor practice occurs, administrative remedies include "back pay." Gen. Drivers and Helpers Union v. Brown County, 269 N.W.2d 795, 803-04 (S.D.1978). There, the Brown County Sheriff committed an unfair labor practice, in violation of SDCL 3-18-3.1(1), (2), (3), and (6),......
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