(concurring in part and dissenting in part).
I concur on Issue 1, the unfair labor practice complaint. I dissent on Issue 2, the grievance.
The majority opinion relies on SDCL 13-43-10.2, which requires Board, upon the request of a nontenured teacher, to state the reason that the teacher is not being rehired, but adds that this “statement of reason shall not constitute any grounds whatsoever for challenging the nonrenewal. A decision by the board shall be final and may not be subject to appeal to the courts. A grievance may not be filed under the provisions of chapter 3-18 unless local policy provides otherwise.”
District’s own grievance procedure provides at Art. VI § D.2 that a grievance decision may be appealed from Board to Department. A grievance is defined in Art. I § A as “a claim by a teacher ... that there has been a violation, misinterpretation or misapplication of any agreement, policy, rule or unequal and inconsistent application of practices or procedures of the Board of Education.”
It is important to note that Jensen is not appealing Board’s decision not to renew her contract, but instead grieving certain “violations, misinterpretations or misapplications” of several District policies. In particular, Jensen cites the following policies she claims were violated:
(1) Grievance Procedures Art. VII promising no reprisals against teachers making use of the grievance procedure;
(2) Constructive Criticism Policy requiring District to make teachers aware of any complaints from students, parents and administrators and to give them a chance to respond to such complaints;
(3)Various other District policies requiring the evaluation, documentation and disclosure of any deficiencies in teachers’ job performance, including:
(a) Supervision, Evaluation and Employment Policy for Certified Teaching Staff §§ D, E & J;
(b) School Policy Relating to the Instruction Staff § 21, “Teacher Evaluation”; and
(c) Teacher’s Policy Handbook 13, “Termination of Teacher’s Contract” para. 1.
A violation, misinterpretation or misapplication of these policy statements constitutes a “grievance” within the meaning of District’s grievance procedure at Art. I § A. Jensen followed all the steps for filing her grievance prescribed in Art. VI. Art. VI § D.2 permits the appeal of an unfavorable Board decision on the grievance to Department. This is consistent with SDCL 3-18-15.2, which provides that an unresolved grievance “may be appealed to the department of labor,” so long as this right of appeal is not “interpreted as giving the department of labor power to grant tenure[.]”
While SDCL 13-43-10.2 prohibits the appeal of Board’s decision not to re-hire a nontenured teacher, Jensen’s appeal to Department was not from Board's May, 1988 decision not to renew her contract, but from Board’s June, 1988 decision on her grievance. Department and the circuit court confused the relief available to Jensen with jurisdiction. Now the majority confirms the error. .Although the relief available to Jensen excludes tenure, other relief is available to her. Fries v. Wessington Sch. Dist., 307 N.W.2d 875, 879 (S.D.1981).
The majority opinion claims that if Jensen is permitted “to attack the board’s reasons,” “the net result is that our previous decisions are shattered,” and “[i]t would eviscerate the clear statement of SDCL 13-43-10.2.”
I say nonsense. The simple fact is that the majority opinion itself is “shattering” *472and “eviscerating” this court s clear statements in:
(1) Fries v. Wessington Sch. Dist., supra;
(2) Rininger v. Bennett Co. Sch. Dist., 468 N.W.2d 423 (S.D.1991) (majority opinion by Wuest, J.); and even
(3) White Man v. Gunnick, 473 N.W.2d 148 (S.D.1991) (handed down July 10, 1991) (majority opinion by Henderson, J.).
It is interesting to note that both Rininger and White Man filed for reinstatement through a grievance, not through an unfair labor practice complaint. Rininger was reinstated and White Man may be reinstated. Moreover, this court has held that even an aggrieved nontenured teacher can be reinstated, albeit temporarily and without tenure, as one possible remedy for the school district’s violation of its contract with the teacher. Fries, 307 N.W.2d at 879. Therefore, we should reverse on this issue and hold that Department has jurisdiction under SDCL 3-18-15.2 to hear Jensen’s appeal of her grievance.
The inconsistent result in the present case creates unnecessary confusion. Are we now overruling Fries'l Does nonre-newal of a nontenured teacher’s contract automatically deprive her of her statutory right to grieve contract violations by her employer and to appeal an unfavorable decision to Department?
We should hold that while Jensen may not directly appeal the decision of Board not to renew her contract, there is nothing to prevent her from grieving alleged violations of her existing contract and from appealing an unfavorable Board decision on that grievance. In the alternative, Jensen should be able to pursue relief through the award of money damages or through reinstatement without tenure under both grievance and unfair labor practice law.