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Winslow v. Fall River County

Supreme Court of South Dakota

March 14, 2018

SHARI E. WINSLOW, Plaintiff and Appellant,
FALL RIVER COUNTY, Defendant and Appellee.


          RODNEY C. LEFHOLZ Rapid City, South Dakota Attorney for plaintiff and appellant.

          DONALD P. KNUDSEN of Gunderson, Palmer, Nelson, & Ashmore, LLP Rapid City, South Dakota Attorneys for defendant and appellee.


         [¶1.] Former Fall River County employee petitioned the Department of Labor for a hearing on the County's alleged unfair labor practice. The County moved to dismiss the petition, asserting that the former employee's claim did not allege an unfair labor practice. The Department agreed and granted the County summary judgment. The circuit court affirmed the Department's order. The employee appeals. We affirm.


         [¶2.] Fall River County and Laborers' Local Union 620 of the Laborer's International Union of North America entered into a collective bargaining agreement for employees of Fall River County. The South Dakota Department of Labor has certified the collective bargaining unit since 1972. Shari Winslow, a legal assistant to State's Attorney James Sword, was a member of the "Courthouse Clerical and Office employee" collective bargaining unit.

         [¶3.] According to Winslow, in late 2015, Sword "began an intensive and deliberate campaign to render [her] work environment intolerable." Winslow claimed that she attempted to resolve the issue informally with Sword by utilizing the grievance procedure within the collective bargaining agreement. The collective bargaining agreement provides specific steps for all grievances:

All grievances, by either party, shall be dealt with in the following steps: By informal conference between the grievant and his/her immediate supervisor. If the employee should decide the attendance of his/her Steward or other Union representative is necessary, he/she shall first be required to notify his/her supervisor, in writing three (3) days in advance of the requested conference and the supervisor shall be privileged to designate a witness to also be present.
(1) If the matter is unresolved under Step (1) above, the employee grievant or the supervisor, shall, within fourteen (14) days after either had or should have had notice of the matter or conduct giving rise to the grievance, serve a written grievance upon the Fall River County Auditor, with copies to the supervisor (in the case of an employee grievance), with the matter to be heard at the next scheduled meeting of the Fall River County Commissioners. The grievant shall be allowed to have a designated representative present and will further be privileged to present testimony and other evidence under such rules as shall be set by the Commissioners in advance of the hearing.
(2) If no resolution of the grievance shall be achieved at Step (2), the grievant may, within thirty (30) days after the hearing under Step (2) appeal to the Department of Labor for a final resolution.

         On December 10, 2015, Winslow submitted a letter to Fall River County Auditor Sue Ganje. The letter provided: "I would like to be added to the next Commissioners meeting to attend the Executive Session to formally file my grievance against the Fall River County State's Attorney, James G. Sword, due to the hostile work environment and discrimination that I am being subjected to." According to Winslow, County Auditor Ganje did not respond to Winslow's request.

         [¶4.] Four months later, on April 1, 2016, Winslow resigned from her employment with the County. In her resignation letter, Winslow stated: "A grievance is being presented to the Commissioners, as well as formal complaints to the EEOC, the S.D. Department of Human Rights, the Attorney General's Office and the Division of Criminal Investigation for hostile work environment, sexual discrimination/harassment." On April 6, 2016, Winslow filed a formal grievance with County Auditor Ganje, alleging that she had "been subjected to a hostile work environment since November 2015[.]" Winslow indicated that she had suggested an office meeting to resolve the issue but "got no response." She also claimed that a union representative "had made numerous attempts to contact the Union directly, and received no response." Winslow, therefore, requested "to be heard during Executive Session during the April 18, 2016 commissioners meeting."

         [¶5.] In a letter dated April 13, 2016, counsel for the County informed Winslow that the collective bargaining agreement is an agreement between the County and "public employees." Because Winslow was no longer an employee of the County, counsel informed her that "the provisions of the Collective Bargaining Agreement do not apply and there is no basis for conducting a grievance hearing before the Commission on April 18, 2016." Counsel informed Winslow that if she disagreed "with this conclusion, " she could notify counsel of the reasons why she "believe[s she is] entitled to invoke the grievance provisions in the Collective Bargaining Agreement." Counsel also asked Winslow to "provide citations to any legal authorities [she] may have ...

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