(concurring in result in part; specially concurring in part).
TERMINATION OF CAPTAINS
Substantively, I agree with the substantive holding because of the reasoning of the majority opinion; however, using the Sharp case as authority for its position on the clearly erroneous rule, is ill-begotten. See, Henderson, J., dissenting opinion in Sharp, not noted in the majority opinion. There are dozens upon dozens of cases, in this Court, citing the scope of review on factual questions before an agency. Examples: Fraser v. Water Rights Comm. of Dept. of Natural Resource Development, 294 N.W.2d 784 (1980); Dakota Harvestore Systems, Inc. v. South Dakota Dept. of Revenue, 331 N.W.2d 828 (1983). We also have an explicit statute on the subject. SDCL 1-26-36 states in pertinent part: “The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact.” The Department of Social Services is no longer involved in establishing child support. On this subject of child support, the Department of Social Services cannot be “clearly erroneous” on child support because they cannot set child support. Our State Legislature changed this law. The Sharp case is currently inapposite authority for the clearly erroneous rule. Further, I note that the majority opinion cites Lawler, citing Morgan, J.’s special concurrence, but neglects to mention that this special writer dissented therein. See, Lawler.
I further wish to point out that the City of Aberdeen seems to pay little attention to the past decision of this Court in Appeal of City of Aberdeen, 270 N.W.2d 139 (S.D.1978). In Aberdeen, this Court held that the captains were not barred from participation as a part of the bargaining unit.** We also held that the firemen of Aberdeen *248had a right to organize a union separate and apart from any other union representing city employees in Aberdeen. It appears to me that the City of Aberdeen is still attempting to get rid of these captains; this, the City of Aberdeen tries to accomplish by, unilaterally, eliminating three positions of captain. Collective bargaining did not, and should have, taken place. An elimination of these captain positions is a mandatory subject of bargaining for the reason that the elements of the Rapid City test were present.
I further note that the majority opinion cites to the 1985 decision of this Court in Rapid City Education Association. In said case, I specially concurred, which is not the law of the case, because the majority is the law of the case, but said opinion tends to express a historic fact, namely, that I did specially concur.
TIME TRADING
Aberdeen firemen, according to the facts below, have acted responsibly for forty years concerning the “trading time” practice. It appears there was only one occasion, during that entire period of time, when a substitute was not present and this existed for just a few minutes. Obviously, this policy has not been detrimental to the citizens of the City of Aberdeen nor its general fire protection — protection which is needed and the citizens are paying for to protect their property. It is difficult for me to understand why the City of Aberdeen, with such performance before it, sees fit to take this issue to the highest court of this state. In different jargon, it does not make common sense.
Moreover, this long-standing practice in the Aberdeen Fire Department should be protected from a sudden and unilateral change. A practice, such as this, established for forty years should be treated as an integral part of the collective bargaining agreement itself. Brotherhood of Maintenance v. Burlington Northern, 802 F.2d 1016 (8th Cir.1986).
Since 1978, the captains have been a part of a collective bargaining agreement. In late 1988, the City expressed to the union that it wanted to exclude the captains from the bargaining union. Instead of negotiating the issue with the union, as required by SDCL 3-18-3, the City met with the captains individually, without the presence of the union, and discussed how to eliminate them. On January 4, 1989 negotiating teams met. It appeared that the teams could not agree, essentially, on anything. City, on the next day, unilaterally announced that it was eliminating the captains.