International Union of Operating Engineers Local No. 49 on Behalf of Maack v. Aberdeen School Dist. No. 6-1, 16867

• Decision Date: 26 April 1990
• Docket Number: No. 16867,16867
• Citation: 463 N.W.2d 843
• Parties: 137 L.R.R.M. (BNA) 2438 INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL # 49, on Behalf of Carl MAACK, Appellant, v. ABERDEEN SCHOOL DISTRICT NO. 6-1, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 843

463 N.W.2d 843

137 L.R.R.M. (BNA) 2438

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL # 49, on Behalf of Carl MAACK, Appellant, v. ABERDEEN SCHOOL DISTRICT NO. 6-1, Appellee.

No. 16867.

Supreme Court of South Dakota.

Considered on Briefs April 26, 1990.

Decided Dec. 5, 1990.

Rehearing Denied Jan. 10, 1991.

Terence A. O'Keefe of Siegel, Barnett & Schutz, Aberdeen, for appellee.

William D. Gerdes, Aberdeen, for appellant.

PER CURIAM.

This appeal involves a dispute between the Aberdeen School District (School) and its long-time custodial employee, Carl Maack (Maack). Maack was called to a September 9, 1989, meeting with the custodial personnel supervisor for School and confronted with two documents concerning reprimands. Maack asked if there was anything he could do about the reprimands. After being told that there was nothing he could do, Maack turned in his keys and left.

There was a misunderstanding as to what had transpired. Maack believed that he was being terminated. School believed that Maack had resigned, although he did not submit a written resignation. Maack filed a grievance alleging that he had not resigned and should be reinstated. The School ruled against Maack at Level I, II and III of the negotiated grievance procedure.

Walter I. Nielsen, a union official representing Maack, apparently contacted the Department of Labor (Department) to request forms necessary to initiate an appeal to the Department. An official of the Department purportedly told Nielsen to simply file the appeal on conciliation forms which Nielsen had in his files. Nielsen initiated a proceeding for Maack with the Department by submitting a document entitled "Request for Conciliation" (Request).

The Department treated the Request as a notice of appeal and issued a notice of hearing which noted that "the hearing involves a grievance brought pursuant to SDCL 3-18-15.2." ^* Neither party objected to the Department proceeding with the matter as an appeal. The hearing was held on December 28, 1989, and School participated fully in the hearing. School did not contest the jurisdiction of the department of labor on grounds that Maack's Request was not a notice of appeal. Department entered findings of fact and conclusions of law and an order in Maack's favor.

School appealed to the circuit court seeking review of the decision of the Department. School argued that Maack's request, filed on a form entitled "Request for Conciliation", was not a notice of appeal. School contends that Maack's request placed the matter within the confines of SDCL 60-10-2, which addresses conciliation of labor disputes. The circuit court agreed with the School and reversed the decision of the Department. We reverse.

DECISION

The issue is whether Maack's Request constituted a notice of appeal. Maack, through his union representative, filed the Request intending and believing that he was initiating an appeal, not a conciliation. School treated the request as a notice of appeal and filed an answer. The Department treated the Request as a notice of appeal and scheduled an appeal hearing. School attended the hearing, cross examined witnesses, called witnesses on its behalf, introduced exhibits, and made objections to testimony (including hearsay objections). In short, Maack and the Department treated Maack's Request as a notice of appeal. Similarly, School treated Maack's Request as a notice of appeal, at least until the Department ruled against School and in favor of Maack.

Notices...