(dissenting).
I respectfully dissent. The practical result of the majority opinion, allows the District to prevail in every case where the definition of grievance is in issue. The definition of grievance is defined by statute and should not be subject to negotiation.
In an earlier case involving these same parties, a teacher in the Rapid City School District filed a grievance based upon a school policy that was inconsistent with the negotiated agreement then in effect. Rapid City Education Association on Behalf of Kechely v. Rapid City School District 51-4, 433 N.W.2d 566 (S.D.1988). That agreement contained the same restrictive definition of “grievance” at issue in this case. This Court held that the contract definition was binding because the parties had exercised their unlimited rights and opportunities in effectuating the final contract. Therefore, grievances over matters not covered by the agreement were precluded. Kechely, 433 N.W.2d at 569-70. To hold for Kechely, the court noted, “frustrates the collective bargaining process.” Kechely, 433 N.W.2d at 570.
Here, the definition of “grievance” contained in the contract is not a product of mutual agreement. After extensive negotiations, the parties remained adamant in their positions on this issue, eventually arriving at an impasse. Neither party requested the intervention of Department. District then unilaterally implemented the definition contained in its last offer pursuant to SDCL 3-18-8.2.
In Kechely, this Court stated that the broadness of the statutory definition of “grievance” was necessary to protect public employees who were unable to negotiate this item under a collective bargaining agreement. Kechely, 433 N.W.2d at 569. Following that decision, District cites Kechely as the rationale for the unilateral implementation of its proposed grievance definition. In Rapid City Education Association v. Rapid City School District, HF No. 3U 1990/91 & HF No. 3U 1991/92, Department found this rationale sufficient to satisfy the good faith bargaining requirement of SDCL 3-18-3.1(5), precluding a claim of bad faith negotiations by Association. Thus, District can continue to offer its restrictive definition in future negotiations, and upon arriving at an impasse, unilaterally implement it in good faith. Under these circumstances, the employees represented by Association are in a worse position than unrepresented public employees. This result also frustrates the collective bargaining process. See Kechely, 433 N.W.2d at 570.
The definition of “grievance” is distinguishable from other subjects which can be negotiated in the context of public employment contracts. SDCL 3-18-3 includes “rates of pay, wages, hours of employment, or other conditions of employment” as the appropriate subjects for negotiation.* Beyond minimum *499wage regulations, most “other” conditions of employment are not covered by statute. In the event of an impasse in negotiations, a public employer is bound to implement its last offer. The purpose of this requirement is to protect employees from ending up with no agreement regarding wages, hours or other conditions of employment. In contrast, the South Dakota legislature has specified the issues which are amenable to grievance proceedings in SDCL 3-18-1.1.
The statutory definition of “grievance” preempts negotiation on this item. The District committed an unfair labor practice by unilaterally implementing a more restrictive definition in its contract and in failing to follow the directive of SDCL 3-18-1.1. The circuit court’s decision should be affirmed.
I am hereby authorized to state that WUEST, J., joins this dissent.
In Rapid City Education Ass’n v. Rapid City Area School Dist. No. 51-4, this Court further refined the terms and conditions of employment which are subject to negotiation. Adopting the analysis applied by the Supreme Court of New Jersey in In re Local 195, IFPTE, AFL-CIO v. State, 88 N.J. 393, 443 A.2d 187 (1982), we subject an issue to the following three-part test:
First, a subject is negotiable only if it ‘intimately and directly affect[s] the work and welfare of public employees.... ’
*499Second, an item is not negotiable if it has been preempted by statute or regulation ...
Third, a topic that affects the work and welfare of public employees is negotiable only if it is a matter 'on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy.’
Rapid City Educ. Ass'n, 376 N.W.2d 562, 564 (S.D.1985).