In this opinion we refer to the plaintiff as "Association" and the defendant as "Board". This is an action brought by the Association against the Board seeking a declaratory judgment. The parties have stipulated to the facts. The complaint asked that the following items be declared subject to negotiation for an agreement to cover the 1972-73 school year: (1) elementary conferences, (2) teachers' aides, (3) elementary planning, (4) class size, (5) audio-visual expansion, (6) budget allowances, (7) school-wide guidance and counseling program, and (8) mandatory retirement of administrators. The Board, through its answer, affirmatively alleged that SDCL 3-18 is unconstitutional, and that even if SDCL 3-18 is constitutional, the eight items mentioned are not proper subjects of negotiation under the provisions of that chapter. It is the contention of the Association that the items relate to "other conditions of employment" and are therefore proper subjects of negotiation.
The constitutionality issue framed by the pleadings was thereafter neither argued nor briefed by either of the parties. This court will not pass on the constitutional issues or questions if the merits of the case may otherwise be decided. House of Seagram, Inc. v. Assam Drug Co., 83 S.D. 320, 159 N.W.2d 210. We have also held that no statute should be held unconstitutional unless its infraction of constitutional principles is so plain and palpable as to admit of no reasonable doubt. Application of Nelson, 83 S.D. 611, 163 N.W.2d 533.
In Head v. Special School District No. 1, 288 Minn. 496, 182 N.W.2d 887, we find their court saying:
We do not decide this case on constitutional grounds, nor foreclose the issue nor intimate what our views might be when it
The authorization for negotiation between public employees and public employers is contained in the Public Employees' Unions Law, SDCL 3-18. Sec. 3-18-1 defines a public employee as any person "holding a position by appointment or employment in the government of the State of South Dakota or in the government of any one or more of the political subdivisions thereof, or in the service of the public schools, * * *". It is stipulated that plaintiff is the bargaining association on behalf of the "classroom teachers, nurses and counselors employed by Defendant", and has negotiated with the defendant "for the past three years and specifically for the school year 1972-73". Sec. 3-18-3 of the act provides in part:
It is the last phrase quoted above, "other conditions of employment", which gives rise to the present controversy. In Westinghouse Electric Corporation v. N. L. R. B., 1967, 4 Cir., 387 F.2d 542, the court had before it the question of whether increases in food prices (a penny for carry-out coffee and five cents for hot food entrees) established by an independent contractor operating cafeterias in Westinghouse plants was a mandatory subject for collective bargaining between Westinghouse Electric Corp. and Salaried Employees Association, a union representing some of the Westinghouse employees. A majority of the N.L.R.B. held that cafeteria prices were "`conditions of employment' and a mandatory subject of bargaining". In effect the N.L.R.B. held that the statutory wording, "terms and conditions of employment", was intended by Congress to be used in its "`broadest sense' and encompasses virtually everything which bears on the employment relationship and to which workers seek management's agreement." The court held, however, that "At best, the history merely shows that Congress did not desire to enumerate specific bargaining subjects; it does not show that the phrase was meant to embrace every issue that might be of interest to unions or employers." The court held:
Other courts interpreting the same phrase have reached conclusions that employers are not required to negotiate every item affecting employment. The following is a list taken from the Attorney General's Report, 1971-72, at page 184:
The Legislature has the duty to establish and maintain public schools and to secure to the people the advantages and opportunities of education. Art. VIII, § 1, South Dakota Constitution. They have delegated a part of this authority which they have to school boards, giving them general powers. SDCL 13-8-39. Throughout the Code there are many other delegations of power by the Legislature in the management of the school system. In Wichita Public Schools Employees Union Local 513 v. Smith, 1964, 194 Kan. 2, 397 P.2d 357, the Supreme Court of Kansas said:
In Dahl, et al. v. Independent School District, 1922, 45 S.D. 366, 187 N.W. 638, this Court held:
The Association points out that it is significant "that nothing in Chapter 3-18 of the South Dakota Compiled Laws requires that the Board agree to the specific terms of any of the Association's proposals. On the contrary, all the Chapter mandates is that the Board negotiate the proposals." It is true that SDCL 3-18-2 states in part: "Such obligation does not compel either party to agree to a proposal or require the making of a concession but shall require a statement of rationale for any position taken by either party in negotiations." Just what significance that might have in the ultimate disposition of the proposals is not
It is our opinion that the term "other conditions of employment" as used in SDCL 3-18-3 means conditions of employment which materially affect rates of pay, wages, hours of employment and working conditions, and quoting from the Attorney General's opinion, supra, "School boards should concern themselves with items affecting wages or hours, but not those other items which are petty, which can be used for harassment purposes, or which are inapplicable to the bargaining process." In our opinion the items appealed by the Association are not material items to working conditions or wages and hours, but rather are items belonging wholly to the discretion of the Board. This ruling does not mean that public employees have no right to organize because as stated in City of Springfield v. Clouse, 1947, 356 Mo. 1239, 206 S.W.2d 539: "All citizens have the right, preserved by the First Amendment to the United States Constitution * * * to peaceably assemble and organize for any proper purpose, to speak freely and to present their views and desires to any public officer or legislative body", and quoting further from the same opinion:
Our constitutional provisions grant similar rights and, without quoting further, we find Art. VI, §§ 4 and 5 particularly appropriate.
For the reasons we have stated, we affirm the judgment of the trial court.
DUNN, J., concurs.
BIEGELMEIER, C. J., and WOLLMAN, J., concur specially.
DOYLE, J., dissents.
BIEGELMEIER, Chief Justice (concurring specially).
I concur in this opinion excepting the inclusion of the dicta hereafter noted.
Justice Winans' opinion correctly states our House of Seagram v. Assam Drug Co., 83 S.D. 320, 159 N.W.2d 210, holds that this court does not pass on constitutional questions if the merits of the case may otherwise be decided. Following this is a statement of our guideline for declaring a statute unconstitutional, citing Application of Nelson, 83 S.D. 611, 163 N.W.2d 533, and a quotation from the Minnesota Supreme Court decision, Head v. Special School District No. 1, 288 Minn. 496, 182 N.W.2d 887.
WOLLMAN, Justice (concurring specially).
The law in question here, SDCL 3-18, is entitled "Public Employees' Unions." We are dealing with a law that affects not only teachers but all public employees generally, inasmuch as SDCL 3-18-1 provides that:
Our holding in the instant case will of necessity, by implication if not by outright declaration, set the pattern for the interpretation of "conditions of employment" as that phrase relates to other employees in the public sector.
The appellant Association asks that we give a broad, expansive reading to the phrase "conditions of employment" in the light of the special group of public employees involved in this case.
This argument would perhaps be more persuasive if we were dealing with an act that dealt solely with the subject of teachers' negotiations, as was the case in West Hartford Education Association, Inc. v. DeCourcy, 162 Conn. 566, 295 A.2d 526, where the act was entitled the "Teacher Negotiation Act" and imposed upon the board of education "* * * the duty to negotiate with respect to salaries and other conditions of employment about which either party wishes to negotiate . . ."
It is important that we keep in mind that we are dealing with public employers and employees rather than with employers and employees in the private, profit-making sector of our economy. Public employees in this state have only recently been given the specific statutory right to form and join labor or employee organizations (SDCL 3-18 had its origin in Ch. 88, Laws of 1969); we should give due regard to whatever limitations the legislature has seen fit to write into the negotiations act at this relatively early stage of the operation of the public employees' union law in this state.
SDCL 3-18-2 provides in part that:
If this were the only statute to be considered, it could be argued that SDCL 3-18-2 is as broad as the statute described in the West Hartford case, supra. We must also consider SDCL 3-18-3, however, which in its original form provided in part that:
SDCL 3-18-3 was amended in 1971 (Ch. 20, § 1, Laws of 1971) so that in pertinent part it now reads:
We must assume that the legislature amended this section from its original broad, nonspecific delineation of the subjects on which employee representatives were given authority to represent an employee unit to a specific enumeration of the subjects of such representation for the purpose of limiting employee representation to the specific subject matters set forth in the statute as amended.
When viewed against this background, it seems reasonable that the phrase "or other conditions of employment" as used in SDCL 3-18-3 refers back to the immediately preceding specifically enumerated items, "rates of pay, wages, hours of employment," and as thus limited refers to those areas of the employment relationship encompassed within the subjects of compensation and required periods of attendance at and permitted periods of absence from the employees' place of employment. Although such an interpretation of the phrase in question may include areas within the periphery of the statutorily enumerated subjects that directly and materially affect compensation and hours of employment, it is not so broad as to include the eight items sought to be negotiated by the Association, on the basis of the record before us.
As thus interpreted and when read in conjunction with SDCL 3-18-2, the phrase "other conditions of employment" in SDCL 3-18-3 defines and limits the phrase "conditions of employment" as used in SDCL 3-18-2. Any other interpretation of the latter section would lead to the inconsistent result that the duty to negotiate imposed by SDCL 3-18-2 on the governmental agency would be broader than the authority given employee representatives by SDCL 3-18-3.
In summary, then, although I agree with the result reached by the majority opinion, I do so for slightly different reasons, and I expressly decline to join in any discussion of the constitutionality of SDCL 3-18 inasmuch as that issue is not before us.
DOYLE, Justice (dissenting).
In this case the court was requested to construe the meaning of the term, "other conditions of employment", as it appears in SDCL 3-18-3:
The majority defines the term to be "conditions of employment which materially affect rates of pay, wages, hours of employment and working conditions". Applying this definition, they hold that all of the controverted items "are not material items to working conditions or wages and hours".
I first must state that I disagree with the narrow construction placed on the meaning of the term "other conditions of employment". I feel West Hartford Education Association, Inc. v. DeCourcy, 1972, 162 Conn. 566, 295 A.2d 526, is more to the point than many of the cases cited by the majority, notwithstanding Justice Wollman's argument in his special concurrence to the contrary.
It is my opinion, even under the majority's definition, that several of the items are still proper subjects of negotiation. The first item, elementary conferences, certainly affects the working day of a teacher in that under the present system these conferences are held after school hours. Therefore, not only is this item a "condition of employment", it actually affects the teacher's "hours of employment". The second item, teachers' aides, involves the use of personnel other than teachers to perform such tasks as milk distribution; supervision of playgrounds, corridors, lavatories, sidewalks, buses, health services; the collection of money for such auxiliary fees as locker, activity, milk and picture fees; and clerical functions such as duplicating instructional and other materials and keeping registers and cumulative record cards. The performance of these tasks by a teacher, I believe, clearly relates to and materially affects his conditions of employment. The third item, elementary planning periods, is also in my opinion a negotiable item since it involves whether or not a certain period of time should be set aside during the school day which a teacher may use to plan and prepare for the performance of his teaching responsibilities. Even if this item fails to fit within the category of a "condition of employment" as defined by the majority, I believe it comes under the heading of "hours of employment" since if no time is set aside during the school day, the teacher will be compelled to use his own time in planning his presentation of educational material to his students. The fourth item, class size, is also negotiable. The impact of the size of a class is a significant factor in regard to a teacher's work load and as such has a material effect on his "condition of employment".
Finally, I expressly disapprove of the majority's discussion of the constitutionality of SDCL 3-18. Therefore, for the reasons above stated, I dissent.