*1 essence, II, In in Count Norwest ask-
ing duty thаt the to control the conduct of person prevent
a third him doing from
physical harm to another be extended to (or
that of property harm to monetary
harm.) request This same was addressed wanting Mid-Cal, found supra, at
763. compelling Norwest has not offered a
reason to duty create or extend a in this
situation. interesting It is that Norwest
did ignore not ask this court to the reason- jurisdictions and, of other in this case Dakota,
of first instance South deter-
mine that there is a to disclose check-
kiting schemes as soon are discov-
ered. The reason is obvious. To contin-
ually permit one financial institution to sue
another each time a check is dishonored accompanying
because there are signs of
“check-kiting” would seem to cause uncer-
tainty, delay and total confusion in com-
mercial transactions. It change banking industry,
entire and even Norwest
does not remedy. want that II,
As to Count I would affirm the trial I,
court’s decision. As to Count I would decision,
affirm the trial court’s but re- plaintiff
mand and allow the
opportunity to amend complaint to set
forth support ultimate facts which the con-
clusion that Credit Union “knowingly par-
ticipated” in this check-kiting scheme.
RAPID CITY EDUCATION ASSOCIA-
TION, on Behalf of Donald
KECHELY, Appellee, Plaintiff and
RAPID CITY SCHOOL DISTRICT 51-4,
# Defendant and
Appellant. 16175,
Nos. 16182.
Supreme Court of South Dakota.
Argued Oct.
Decided Dec. *2 McCullen, Bangs, Thomas E. percent salary $2,649.16. Simmons increase of The Butler, Simmons, Foye Rapid City, & for circuit court affirmed. Both the District аppellant. defendant and and Kechely appealed. We reverse and deny Kechely’s award. Finch, Viken, Linda Lea M. Viken of Pechota, Rapid City, plaintiff Agreement. Violation Viken & for appellee. teaching day The for in Article Agreement: VIII of the SABERS, Justice. A. day, The normal school exclusive Rapid City (District) The Schоol District necessarily required perform time ex- appeals a affirming circuit court order a tra-duty and assign- extra-curricular decision of Department the South Dakota ments, (7) duty seven hours of in (Department) of Labor upholding griev- a length. period The actual time as- by Rapid ance filed City Education As- signed duty such hours shall be (Association) sociation on behalf of Donald building principal made or oth- Kechely (Kechely). appropriate er supervisor and shall be adjusted to meet the needs the de-
Facts partment, (elementa- division or level ry, junior high or high) senior to which Kechely assigned High was to Stevens assigned. the teacher has beеn Rapid Dakota, City, School South as a Except B. emergency cases of or un- vocational teacher for the 1985-86 school circumstances, usual ... teachers year. assigned His required schedule that shall be entitled to a minimum of a one- mechanics, he teach three classes of auto (½) half hour uninterrupted free consisting each class ordinary of two class period, (emphasis added). lunch periods Upon of 45 receiving minutes.* his schedule, Kechely, through class the Asso Agreement, working Under the ciation, grievances filed two with the Dis paid within the seven-hour are to grievance trict. pursuant One was filed accordance with the levels grievance provisions of the Collective appendices. vary These according rates Bargaining Agreement (Agreement) be experience. a teacher’s education and The tween District and the Association. Agreement provide varying salary does not grievance The other was filed under SDCL rates for different class schedules class- grievance 3-18-15.3 and the procedures in day. loads within the only seven-hour The grievances ARSD 47:02:04. Both were exception provision providing is a addition- GCK, policy, based 1981 District al for certain extra-curricular activi- provided for teaching a standard ties, coaching. such as periods. load of Kechely sought five class Kechely’s schedule fit within the seven- twenty-percent salary increase because teaching day. hour His schedule included his schedule. hour, duty both a one-half free lunch and a The Board of Education of preparation the School one hour class time. Within Kechely’s grievances. District denied teaching day, his seven-hour he received Kechely appealed Department. four 15 minute intervals or breaks between Department held indicated, that none of the terms of classes. As two 15 minute inter- had been violated that assigned but vals were eliminated sched- Policy proper ule, prohibited GCK was basis for a statu- but this was not tory grievance. Agreement. Kechely assigned any further was not found that GCK had violated paid been extra-curricular activities and ac- was Kechely cording the District and awarded a ten- experience to his education and * Kechely assigned preparation period two classes in the morn- break and one hour class p.m. Except and one in the afternoon. Each class con- from 11:45 a.m. to 1:15 for two 15 daily periods. tained two periods 45 minute class His minute intervals or breaks after class omitted, schedule was 8:00 a.m. to 11:45 a.m. and 1:15 which were all the above were within p.m. p.m. day. 3:00 He had a one-half hour lunch the seven-hour Agreement’s sаlary schools,
under lic apply schedule. as to the condi- Thus, Kechely did not establish tions of Agreement. under the Kechely claims this statute Statutory grievance. a much broader definition of Agreement. than the Since the sets out a grievances terms, procedure 3-18-15.1, limits to its required Kechely ar- *3 grievances gues specificаlly provided but limits to that the District has not a the Agreement. grievance terms of the The full procedure contemplated as grievance “complaint defines a by legislature as a provisions the under the of teacher, teachers, employed by or the Dis SDCL ch. 3-18. and cir- trict, violation, that there a has been misin agreed аrguments by cuit court with these terpretation application inequitable or of Kechely. affirming Department, In the the any of Agreement[.]” the terms of this circuit court stated: grievance of the
Article I of the broadness pro- further laws give vides: impression South Dakota the that Legislature grant our wanted to the parties hereto understand and [T]he greatest possible leeway to individual agree any teacher, that individual or public employees express complaint a group teachers, right of shall have the at on conditions of The stat- any present grievances time to utes do not District address instances where a grievances and to suсh have ad- public justed body employee an representa- and without the intervention of the procedure tive long adjustment grievance Association as as the create a limit- is ing grievances the inconsistent with terms of to the terms of agree- this the agreement, ment, and the leaving Association grievable and hencе out has opportunity been the issues allowed statute. Yet a liberal present adjustment. at such reading suggests to the statutes that public policy agree- overrules contractual Kechely argues notwithstanding that this depriving public employees ments of provision, grievance a statutory is available grievances (footnote allowed law. 3-18-15.3, provides: under SDCL which omitted). grievance If procedure no is enacted as 3-18-15.1, provided in department § circuit court’s conclusion is doubtful promulgate of labor shall such rules and 3-18-3, light provides: of SDCL regulations may appropriate as and Representatives designated or selected adoрt procedure standard of purpose representation for the formal carry provisions out the of 3-18-15.1. § by the of majority employees in a procedures Such thereby will be estab- shall appropriate purposes unit for such governing lished as if the said officer representatives be the exclusive of adopted and board had the same. employees unit purpose in such for Kechely alleges representation respect that District violated to rates of provide proce- GCK but failed to pay, wages, employment, hours or dure to policy. resolve a violation of the other employment; pro- conditiоns of argues illegally He that this limited his vided any employee, that individual or a grievance rights. statutory Kechely cites group right employees, shall have the support argu- 3-18-1.1 in of this SDCL any grievances at present time to to their ment, defines as: employer grievances and to have such adjusted without intervention complaint by public еmployee [A] long ad- as the group public representative formal employees based justment alleged violation, misinterpretation, not inconsistent with the or in- any terms equitable application settlement with the any existing for- contracts, representative mal then agreements, ordinances, poli- effect, cies, added). regulations rules pub- (emphasis of the ... section, employees er classload is
Under this
individual
inconsistent with the terms
grievances
limited
not inconsistent
are
precluded by
of the
Agreement.
the terms of the
SDCL 3-18-3.
require
specific
ch. 3-18 does not
reading
In its
liberal
relating
employ-
terms
to “conditions of
statutes, the circuit cоurt failed to consider
negotiated agree-
ment” be included in the
the reason for
griev-
the “broadness of the
Instead,
ment.
the District and the Associ-
ance laws” under SDCL ch. 3-18. The
may negotiate any
ation
terms
believe
grievance provisions
solely
are not written
employ-
should be included as conditions of
unionized, public
emрloyees
negoti-
who
matter,
agreement.
ment in the
If a
al-
ate a
bargaining agreement
collective
though potentially grievable
under
stat-
through
representative.
an exclusive
They
employment
utes as a condition of
or as a
equally applicable
grievances
are
filed
affecting
employ-
mattеr
a condition of
public employees.
employ-
Public
ment,
agreement,
is inconsistent with the
it
*4
bring
ees
are
who
unable to
agreement
is limited
the terms of the
under SDCL 3-18-3.
bargaining
under the terms of a collective
agreement need a broader definition of
Kechely’s statutory
claim un-
grievance in order to claim
violations
appears
preclud-
der SDCL 3-18-15.3
contracts, ordinances,
rules,
policies,
etc.
pro-
ed
SDCL 3-18-3. Article XXIII
paid
vides that “All
3-18-15,
Kechely also relies on SDCL
provisions
accordance with the
this
part:
which
Appendix
whether
teach in a senior or
Nothing
chapter
contained
this
shall
high school,
junior
elementary school or
limit, impаir
be construed to
or affect the
special
added).
(emphasis
school.”
right
any public employee
or his or her
only
permitted
deviation
from these
representative
expression
or com-
pay
rates is extra
for certain extra-curricu-
view, grievance,
munication of a
com-
Kechely’s teaching dаy
lar activities.
plaint
opinion
any
or
on
matter related to
teaching day,
the
within
seven-hour
and he
compensation
public
the
conditions
assigned
does not claim that
any
he was
betterment,
employment or their
...
Kechely’s griev-
extra-curricular activities.
simply
twenty-percent pay
ance
seeks a
Kechely
provision
pro-
read this
would
to
Agreement’s salary
increase above the
any
employee’s
limitation
an
hibit
rates.
bring
right to
under SDCL ch.
The circuit court concluded that
the
interpretation
nullify
3-18. Such an
prohibit
pay
did
additional
3-18-3,
the
provisions
which
“Although
for extra classloads because
the
clearly
employee’s grievаnce
limits an
Negotiated Agreement
stipends
deals with
rights.
interpretation
A
of SDCL
better
pay
and additional
for extracurricular activ-
suggested by
3-18-15 is that
the District.
ities,
subject
it is silent on the
of additional
against
prohibition
limitations on “ex-
Agree-
for heavier class loads.” The
pression
appears
or communication”
aimed
plаinly
period
ment
states that “The actual
protecting
at
the individual or collective
assigned
of time
for such
hours shall
right
speech.
interpretation
of free
This
is
building principal
be made
or other
challenges
consistent with recent
to an as-
appropriate supervisor
adjusted
and ...
to
representation
pub-
sociation’s exclusive
department,
meet the needs of the
division
employees.
lic
Minnesota State Board for
all
is clear that
level[.]”
Community Colleges Knight,
465 U.S.
assigned duty hours
the seven-hour
within
(1984).
Schnabel v. Alcester School were in in Policy effect (S.D.1980) 295 GCK did not N.W.2d 340 Thus, come into effect рolicies until 1981. can- of a school we district have the force say the District binding poli- and effect of violated a binding upon law and are cy deviating However, school from district. GCK. courts recognized, principle applies have “this We reverse. only to rules which evince an intent of the agency mandatory establish rulеs WUEST, C.J., and MORGAN and must be agency.” followed Golem JJ., MILLER, concur. Heights biowski v. Madison Civil Service Commission, 682, Mich.App. 687, 128 341 HENDERSON, J., concurs with a 793, (1983). N.W.2d 796 writing. Policy GCK states that “The standard HENDERSON, (concurring). Justice teachers, load for secondary both senior Briefing argument in this case and be- high school, junior high school and fore the (5) opin- Court reveals a difference of periods five of classroom instruction[.]” opposing ion scope between counsel on the Kechely argues that “shall” is word appellee suggests, review. Counsel for mandatory, binding and creates a rule briefing, in her However, give that this Court should District. when read its entirety, Department deference to the policy indicates Labor be- otherwise. expertise Policy GCK states cause of its and a five-period that the load “resolution of load, is the standard factual issues” not the maximum which falls within that ex- Further, pertise. appears load. special there is no indication that It to this writer carrying reviewing five-period ques- excess of a that we аre the case on load should compensation Therefore, receive additional tions of law. no deference remedy. or other policy appears This expertise be should be of the
571 upheld griev Department Agreeing Labor rationale of my col- ance herein and was thereafter affirmed lеague, Sabers, very Justice pointedly I Rather, scope our circuit court. augment conceptualization wish to Department review should Permann v. Department this remark: The of Labor Labor, Div., Unemployment Ins. 411 awarding appellee erred salary 10% Guardianship (S.D.1987); In re N.W.2d 113 appellee ap- increase extra beсause 102, (S.D. 411 107 Viereck, N.W.2d plied agreed day, himself for the 7-hour 1987) (see special concurrence day; appears normal school it that an Henderson, J., citing Pullman-Standard award more than a 7-hour Swint, 273, 1781, 456 102 v. U.S. S.Ct. 72 salary agreed increase his over the (1982); L.Ed.2d 66 Inwood Labs. v. Ives Appendix schedule found in the of the Col- 844, Labs., 2182, 456 U.S. 72 S.Ct. Bargaining Agreement. lective (1982); Corp. L.Ed.2d 606 Zenith Radio Research, 100, Hazeltine 395 U.S. 89 S.Ct.
1562,
(1969);
v. United
States
U.S.
(1948)).
68 S.Ct.
accord no deference to the conclusions of
law reached Labor
the circuit court.