When a county union is certified as the exclusive bargaining representative for highway department employees, is the county commission's mandatory duty to negotiate salaries with the union an unconstitutional delegation of the commission's legislative authority over county compensation?

Plain-English summary

The International Union of Operating Engineers, Local 80C, won a secret-ballot election among the employees of the Meade County Highway Department and was certified by the South Dakota Department of Manpower Affairs as the exclusive collective bargaining agent for those employees under SDCL 3-18-5. The Meade County Commission balked. The commissioners had to fix salaries and the number of clerks under SDCL 7-7-20; if they now had to bargain those decisions with a private organization, weren't they being forced to delegate their constitutional legislative authority over county finances?

Mr. Finch, representing the county, asked AG Bill Janklow two questions: (1) did SDCL 3-18-2's mandatory negotiation requirement amount to an unconstitutional delegation, and (2) did the Legislature unconstitutionally delegate authority to the Department of Manpower Affairs to administer the chapter?

Janklow's answer to both was no. The key was reading SDCL 3-18 carefully:

• 3-18-2 requires counties to negotiate in good faith with the certified union representative.
• 3-18-7 and 3-18-8 make clear the county governing body makes the final decision on salaries and other matters after negotiating.
• 3-18-3.1 authorizes the Department of Manpower Affairs to conciliate an impasse, but the conciliator's recommendation does not bind the county.

The structural answer: the county still makes the final decision. Negotiating is not deciding. A statute that requires the county to sit at a table and discuss before deciding is not the same as a statute that transfers the decision to someone else. Janklow analogized to Board of Regents v. Carter (S.D. Sup. Ct. April 25, 1975), where the South Dakota Supreme Court had just held the Regents kept their ability to "unilaterally set salaries, discharge employees, or establish employment qualifications" under chapter 3-18: "The board's basic right of control is left untouched, and SDCL 3-18 is, therefore, a permissible restriction on the exercise of that control." If chapter 3-18 was a permissible restriction on the Regents' authority, it was a permissible restriction on the county commission's.

The "exclusive bargaining representative" feature also did not violate the constitutional rights of employees who wanted to stay out of the union. SDCL 3-18-2 expressly recognized the right not to join, and SDCL 3-18-3 expressly preserved each employee's right to present individual grievances and have them adjusted without union intervention (provided the adjustment was not inconsistent with the union contract). The opinion read those statutory protections as satisfying Article VI, section 2 of the South Dakota Constitution (the right-to-work provision).

The second question (Department of Manpower Affairs administration) was disposed of on the same logic. The Department is a conciliator; it does not bind the county. So no legislative power flows from the county to the Department. The Department's role is to facilitate, not to decide.

Currency note

This opinion applied South Dakota public-employee bargaining law in 1975. Check current statutes and decisions before relying on its analysis today.

What the opinion meant at the time

For county commissions, the AG rejected Meade County's argument that mandatory negotiation unconstitutionally delegated salary-setting authority to a union. He said the county retained the final decision after negotiation. The opinion did not address enforcement or the consequences of failing to bargain.

For public-employee unions and their representatives, the opinion confirmed the framework was solid. Once certified by the Department of Manpower Affairs, the union had a statutory right to negotiate, and the county could not avoid that obligation through constitutional argument.

For the Board of Regents and other state-level entities subject to chapter 3-18, the opinion read alongside Board of Regents v. Carter (decided about a month earlier) consolidated the constitutional analysis. State and local governing bodies kept their final decisional authority; the bargaining duty was a procedural overlay, not a transfer of power.

For non-union employees in covered units, the opinion confirmed the protective statutes (3-18-2 right not to join, 3-18-3 individual grievance presentation) preserved the right-to-work protections under Article VI, section 2. The exclusive-representation rule did not force unwilling employees into the union.

Background and statutory framework

SDCL chapter 3-18 was South Dakota's Public Employees' Unions Law, applying to state and local government employees. Under the certification framework in 3-18-5, a secret-ballot election among the employees produced a certified exclusive representative, which is how the Operating Engineers came to represent the Meade County Highway Department employees here.

The constitutional challenge raised here is one of the classic objections to public-sector collective bargaining laws: the governing body of a political subdivision derives its power from a legislative delegation; the delegation doctrine forbids redelegating that power to a private entity; the union is a private entity; therefore mandatory bargaining is an unconstitutional redelegation.

The answer Janklow gave, following Board of Regents v. Carter, is that there is a difference between requiring the governing body to negotiate before deciding and transferring the decision to someone else. The first is a procedural restriction; the second is a delegation. South Dakota's chapter 3-18 is the first kind. The county still decides; it just has to talk to the union first.

The right-to-work analysis under Article VI, section 2 of the South Dakota Constitution requires only that employees not be required to join a union as a condition of employment. SDCL 3-18-2 expressly says so, and 3-18-3 preserves individual rights to present grievances. The exclusive-representation requirement does not require union membership; it requires that the union speak for the bargaining unit on collective contract terms. Those are different things.

Citations

• SDCL chapter 3-18; 3-18-2, 3-18-3, 3-18-3.1, 3-18-5, 3-18-7, 3-18-8
• SDCL chapter 60-10
• SDCL 7-7-20
• S.D. Const. art. VI, § 2
• House of Seagram, Inc. v. Assam Drug Co., 176 N.W.2d 491 (S.D. 1970)
• Board of Regents v. Carter, Nos. 11310, 11312, 11313, 11323 (S.D. Sup. Ct., April 25, 1975)
• Smyser, Public Employees and Public Employees Unions: Their Rights and Limitations in South Dakota, 17 S.D. L. Rev. 1 (1972)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1550

Original opinion text

International Union of Operating Engineers, Local 80C, as exclusive collective bargaining agent

Dear Mr. Finch:

You have asked for my opinion based on the following factual situation:

The International Union of Operating Engineers, Local 80C, has been certified as the exclusive collective bargaining agent of the employees of the Meade County Highway Department. This certification was issued by the Department of Manpower Affairs pursuant to its authority under SDCL 3-18-5 following a secret ballot election of the employees. The Meade County Board of Commissioners feels that since they are charged with the responsibility of operating the county and particularly with reference to fixing salaries and numbers of clerks in the various county offices under SDCL 7-7-20; to negotiate with the union on those matters would be an unconstitutional delegation of authority.

Based on the foregoing, you have asked two specific questions:

1. Whether the requirement under SDCL 3-18-2 making it mandatory for the county commission to negotiate with the designated representative of its employees, amounts to an unconstitutional delegation of authority?

2. Whether the Legislature, in giving authority to the Department of Manpower Affairs to administer the provisions of 3-18, made an unconstitutional delegation of authority?

Political subdivisions such as counties are granted certain legislative powers by law including the power to fix salaries. Legislative authority cannot be delegated to a private entity. (See House of Seagram Inc. v. Assam Drug Co., 176 N.W.2d 491 (1970).)

It is clear that SDCL 3-18-2 requires counties as well as other political subdivisions to negotiate in good faith with the designated representative of its employees. It is likewise clear that such things as salaries must be negotiated. However, in requiring the county to negotiate, the law does not require them to accept the proposal of the union or labor organization. In fact, sections 3-18-7 and 3-18-8 clearly provide that the governing body makes the final decision after negotiating with its employees' representative. See Smyser, Public Employees and Public Employees Unions: Their Rights and Limitations in South Dakota, 17 S.D. Law Rev. 1 (1972). In Board of Regents v. Carter, Nos. 11310, 11312, 11313 and 11323 (S.D. Sup.Ct., April 25, 1975), the South Dakota Supreme Court held:

The ability of the Regents to unilaterally set salaries, discharge employees, or establish employment qualifications is left intact. The board's basic right of control is left untouched, and SDCL 3-18 is, therefore, a permissible restriction on the exercise of that control.

Therefore, the requirement that a county negotiate with its employees' labor organization does not amount to an unlawful delegation of authority. The county makes the final decision, not the union. Therefore, it is inconceivable that there would be any delegation of the county's authority to fix salaries to the union under these circumstances.

Exclusive bargaining provision does not violate rights of those who wish not to belong to the union. They are given specific right to not join the union under SDCL 3-18-2 and they are also given specific right to present grievances individually and to have them adjusted without intervention by the formal representative so long as the adjustment is not inconsistent with the terms of any settlement with the formal representative. SDCL 3-18-3. These provisions clearly guarantee the "right to work" provided in section 2 of article VI of the South Dakota Constitution. Therefore, it is my opinion that SDCL 3-18-2 is not an unconstitutional delegation of authority - legislative or otherwise.

As to your second question, the answer is likewise that there is no unlawful delegation of authority. The final authority to fix salaries still rests in the county commission, even though the Department of Manpower Affairs may be requested to conciliate an impasse under SDCL 3-18-3.1. The department only makes a recommendation for settlement of the impasse under SDCL 60-10 and this in no way binds the county.

I am therefore of the opinion that SDCL 3-18 is constitutional with respect to both questions posed by the county.

Respectfully submitted,

William J. Janklow

Attorney General

WJJ:DF:MAG:dh