McCauley v. South Dakota School of Mines and Technology

Decision Date09 July 1992
Docket NumberNo. 17250,17250
Citation488 N.W.2d 53,77 Ed.LawRep. 446
Parties77 Ed. Law Rep. 446 Philip McCAULEY, Appellant, v. SOUTH DAKOTA SCHOOL OF MINES AND TECHNOLOGY, State of South Dakota Board of Regents, Appellees.
CourtSouth Dakota Supreme Court

Dennis W. Finch of Finch Law Office, Rapid City, for appellant.

Gene Lebrun of Lynn, Jackson, Shultz & Lebrun, Rapid City, for appellees.

AMUNDSON, Justice.

Philip McCauley (McCauley) appeals the circuit court decision affirming a final order of the South Dakota Department of Labor (Department). We affirm.


McCauley, as an employee of South Dakota School of Mines & Technology (Tech), served as Director of the library from 1968 to 1979. He was granted tenure in 1972. In 1979, his position was changed to Associate Librarian and, at this time, McCauley became eligible to join COHE, the faculty union, and did become an active member of same. McCauley served as an officer of COHE from the spring of 1980 until the time of his dismissal. He worked under three different library Directors from 1979 to 1984: Dr. Harry Welsh, Dr. Catherine Spelts, and Dr. Bernice McKibben.

McCauley served as Associate Librarian until July 1, 1984. He then signed his appointment contract as "Reference Librarian" and served in that capacity until June 5, 1985. On that date, Tech notified McCauley by letter of its determination that just cause existed for his discharge from employment and immediately suspended him with pay. The grounds for discharge were given as (1) incompetence, (2) flagrant neglect of duty, (3) wrongful failure to comply with lawful instructions of supervisor, (4) failure to correct deficiencies in performance, and (5) failure to adhere to a constructive plan put into effect on March 8, 1985.

A conference was held on June 24, 1985, pursuant to Section 15.10 of the COHE/Board of Regents (BOR) agreement to apprise McCauley of the reasons for his discharge. On July 10, 1985, McCauley filed a grievance regarding the discharge and Tech denied it on the basis that it was untimely. McCauley then appealed Tech's dismissal of the grievance under COHE/BOR agreement and a hearing examiner was appointed by BOR. On August 2, 1985, McCauley filed an unfair labor practice charge, which alleged his dismissal was in violation of SDCL 3-18-3.1.

Pursuant to the COHE/BOR agreement, a joint hearing on the grievance and unfair labor charge was held before the hearing examiner on November 5 and 6, 1985, and on December 11, 1985, he made his recommendations to BOR. On January 15, 1986, BOR accepted the hearing examiner's recommendations and authorized Tech to proceed with McCauley's discharge. He was discharged on January 17, 1986.

McCauley subsequently appealed his July 10, 1985, grievance and unfair labor practice complaint to Department, and filed an additional grievance on February 16, 1986. BOR and Tech filed responsive pleadings to all grievances and unfair labor practice claims filed by McCauley. Both grievances and the unfair labor practice complaint were combined for hearing before Department. The hearing was held by Department September 14-18, 1987. Department issued a decision upholding McCauley's discharge on April 5, 1989. Department found Tech and BOR had "just cause" for dismissal and that there was no unfair labor practice by Tech. It also found, with regard to the grievance filed in February, 1986, that McCauley was not entitled to remain on payroll pending the exhaustion of his appeals.

McCauley appealed Department's decision to circuit court. The circuit court affirmed Department's decision in all respects.


1. Whether Department and circuit court erred in failing to find an unfair labor practice on the part of Tech and BOR in dismissing McCauley from his tenured position with Tech?

2. Whether Department and circuit court erred in not finding a violation of the collective bargaining agreement between COHE/BOR in dismissing McCauley from his position at Tech?

3. Whether Department and circuit court erred in failing to interpret the COHE/BOR collective bargaining agreement to allow McCauley continued pay during the pendency of his appeals?

Standard of Review

This court reviews the record of administrative agencies in the same manner as the circuit court. SDCL 1-26-37; Appeal of Hendrickson's Health Care, 462 N.W.2d 655 (S.D.1990); Peery v. Department of Agriculture, 402 N.W.2d 695 (S.D.1987); In Matter of Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986). Since the circuit court affirmed Department's findings of fact and conclusions of law in their entirety, our review is of the agency's findings and conclusions. Matter of Midwest Motor Exp., Inc., Bismarck, 431 N.W.2d 160 (S.D.1988).

Conclusions of law are given no deference on appeal and are freely reviewable. SDCL 1-26-36; Hendrickson's, 462 N.W.2d at 656; Karras v. State, Dept. of Revenue, 441 N.W.2d 678 (S.D.1989); Sharp v. Sharp, 422 N.W.2d 443 (S.D.1988). Questions of fact, however, are given greater deference. SDCL 1-26-36. This court does not substitute its judgment for Department's on the weight of evidence pertaining to questions of fact unless Department's decision is clearly erroneous, or is arbitrary, capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. Finck v. Northwest School Dist. No. 52-3, 417 N.W.2d 875 (S.D.1988); Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987); Appeal of Templeton, 403 N.W.2d 398 (S.D.1987); Anderson v. Western Dakota Insurors, 393 N.W.2d 87 (S.D.1986). We will not reverse an agency decision unless we are left with a definite and firm conviction that a mistake has been committed. Finck, 417 N.W.2d at 878; Matter of Midwest, 431 N.W.2d at 162; Dakota Harvestore v. S.D. Dept. of Revenue, 331 N.W.2d 828 (S.D.1983); Fraser v. Water Rights Commission, Etc., 294 N.W.2d 784 (S.D.1980). With these standards of review in mind, we address Department's findings and conclusions.

(1) Unfair Labor Practice

McCauley argues that Department made a clear mistake in its analysis of Tech's actions toward him. He alleges that the evidence clearly shows his discharge was a result of his union activities and therefore a violation of SDCL 3-18-3.1. 1

In General Drivers & Helpers U. v. Brown Cty., 269 N.W.2d 795 (S.D.1978), this court set forth guidelines for making a determination as to whether a discharge was in violation of SDCL 3-18-3.1. Department discussed each of the applicable General Drivers guidelines individually in its decision and made twenty findings of fact on this issue alone. The hearing examiner's findings on these guidelines were generally as follows:

(1) Whether employee had been criticized or specifically warned of his shortcomings: McCauley had been criticized and specifically warned of his shortcomings on numerous occasions by each of the Directors Welsh, Spelts, and McKibben during their respective terms as director.

(2) Whether employee was given any advance notice of his discharge: McCauley received notice of intent to discharge on June 5, 1985, and was not formally discharged until January 17, 1986. Dr. McKibben had recommended as early as October, 1984, and again on May 13, 1985, that McCauley be discharged. He was also evaluated as unsatisfactory in 14 of 17 categories for the period of March 1, 1984, to February 6, 1985. All of these events establish that McCauley was given sufficient notice of discharge.

(3) Whether employer offered economic benefits if employee would refrain from union activity: This guideline was irrelevant. No allegations were made that anyone from Tech or the BOR ever offered any economic benefit to McCauley if he would not join the union or would refrain from union activity.

(4) Whether employer was opposed to unionization: Dr. Schleusener, then President of Tech, and Dr. Orava, who was the acting Vice President of Tech, both made statements which indicated they were less than enthralled with having to deal with the union.

(5) Whether employee was competent: McCauley was not competent in performing the particular duties which were assigned to him based upon the evidence presented to the hearing officer.

(6) Whether employee was a known leader of unionization drive and employer knew of employee's union activity at the time of discharge: While it is not clear whether Dr. Schleusener knew McCauley was an officer at the time of the discharge, he was certainly aware of McCauley's activity in the union at the time of the discharge. Thus the record sufficiently established that Tech and Dr. Schleusener were aware of McCauley's activity in the union at the time of his discharge.

(7) Whether the discharge plan was promulgated with speed: McCauley argued that his discharge plan was promulgated with speed and relied on a June 3, 1985, memo from Dr. Orava to Dr. Schleusener which made disparaging comments about unions. McCauley was discharged on June 5, 1985. The record, however, fails to support McCauley's inference that the decision to implement his discharge plan was based on the contents of the June 3, 1985, memo. The record does not support a finding that the discharge plan was based on any improper motive on the part of Tech.

(8) Whether employer gave an implausible explanation for its action: Tech stated the grounds for dismissing McCauley as incompetence, flagrant neglect of duty, wrongful failure to comply with lawful instructions of a supervisor, and insubordination. 2 The hearing examiner found that the stated grounds and supporting examples were sufficient to provide a plausible explanation for Tech's decision to discharge.

(9) Whether the discharged employee was singled out for special treatment: The record as a whole does not indicate that McCauley was singled out for special treatment by Tech because of his union activities.

(10) Whether the reasons for discharge given at the hearing were the...

To continue reading

Request your trial
1 cases
  • Cox v. Sioux Falls School Dist. 49-5
    • United States
    • South Dakota Supreme Court
    • January 11, 1994
    ...then review the department's findings of fact and conclusions of law under SDCL 1-26-36. Rininger, 468 N.W.2d at 426. See generally McCauley, 488 N.W.2d 53 (review of Department's findings and conclusions); International Union of Operating Eng'rs Local # 49 v. Aberdeen Sch. Dist. No. 6-1, 4......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT