### No. 12836 IN

### THE SUPREME COURT OF THE 

### STATE OF 

### MONTANA 1974

STATE EX 

### REL 

### BILLINGS EDUCATION ASSOCIATION, INC,, 

### a non-profit Montana corporation, Plaintiff and Relator,

THE DISTRICT COURT 

### OF THE THIRTEENTH JUDICIAL 

### DISTRICT OF THE STATE OF MONTANA, inand for the County of Yellowstone, and the HON. B, 

### W. 

### THOMAS, presiding District Judge, Defendants and Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relator: 

### Pedersen, Herndon and Harper, Billings, Montana Donald R. 

### Herndon argued, Billings, Montana For 

### Respondent: Moulton, Bellingham, Longo and Mather, Billings,

Montana William Bellingham argued, Billings, Montana

Submitted: August 19, 1974 Decided: August 26, 1974

3 -. ,- Filed: JE i S' 

## ',9/4 Dissent Filed: December 12, 1974Hon. Gordon R. Bennett, DistrictJudge, sitting in place of Mr. Justice Frank I. Haswell, dissenting:

I cannot concur entirely with the order of themajority

or the reasoning behind the order because 

### it denies alleffect to the "ProfessionalNegotiations Act for Teachers", sections 75- 6115 through 75-6128, Revised Codes of Montana, 1947, hereinafter referred to as "theAct". It must be presumed that the Legislature intended the Act tomake atleast some substantive changes inthe existing law in order toaccomplish the Legislative declaration of policy and purpose expressed in section 75-6116, R.C.M. 1947. 

### In holding that the board of education has "final authority"

as tonegotiations with 

### its teachers themajority has stripped the Act of itsmeaning and returned the parties totheir former positions asif theAct had never been passed. Statutes of this state

aretobe construed according tothe legislative intent. Courts 

### may only ascertain and declarewhat is contained in statutes and must give effecttoevery provision if possible. The Act expressly made major changes inthe relationship between teachers and their employing school boards. For the first time inthe history of this state, teachers were given the right tobargain collectively as tonegotiable conditions of employment through representatives of their choice who function as the sole representatives for allteachers inthe 'appropriate unit". Direct negotiations between represented individual teachers and their employer areprohibited. Both the representative of the teachers and the school board have a duty tonegotiate and bargain. The intended result of the negotiations is toarrive ata master agreement which must be reduced towriting and ratified. Allindividual teacher contractsmust conform tothemaster agreement. It isan unfair labor practice for employing boards of education tointerferewith, restrain or coerce teachers intheir right of self-organizationor selection of a representative,or torefuse tonegotiate in good faith. District courtsof this stateare granted jurisdiction toenjoin unfair labor practices asdefined inthe Act. I cannot construe the foregoing provisions asgiving boards of education "final authority". These sections expressly grant teachers of this stateadditional legal rights not previously recognized by statuteand tothe extent granted the authority of boards of education 

### isdiminished. The Act requires good faithcollectivebargaining. Good faithbargaining can only occur between relative equals and is inherently impossible if either side has "final authority". The Act does not require agreement. What isrequired 

### iscontinued good faithnegotiations between the parties until a master agreement is agreed upon. The relator teachers inthis proceeding are attempting to enjoin the school board from issuing individual teacher contracts before a master agreement has been negotiated and ratified by the parties. If such issuance of individual teacher contracts constitutesan unfair labor practice within the meaning of section 75-6120, R.C.M. 1947, it may be enjoined. This is the sole issue before the Court and both parties agree that the unresolved issues preventing agreement are not relevant tothisquestion. There is alsono dispute concerning the fact that the school board is attempting torequire teacher acceptance of individual contracts within a specified period of time atthe penalty of forfeitureof the teacher's position. Section 75-6102, R.C.M. 1947, requires written individual teacher contracts. Section 75-6122, R.C.M. 1947, requires master agreements tobe reduced towriting and ratified. No statute directlyprovides that either type of contract should precede theother. It 

### isthe duty of this Court toprovide a construction which gives both provisions effect, if possible, consistent with the expressed legislative intent. Individual contracts prior toratificationof a master agreement serve no useful or legitimatepurpose. The offer and acceptance functions of contracting 

### is now accomplished by "notices of re-election" of tenure teachers pursuant to section 75-6105, 

### R.C.M. 1947, and of nontenure teachers pursuant to section 75-6105.1, 

### R.C.M. 1947. Both sections require the teacher toaccept the "reelection" inwriting within 20 days or forfeitthe position. By

reason of these sections school boards are fully advised astothe identity of each teacher who agrees toteach during the forthcoming year within 20 days after the teacher has received the notice. The terms and conditions of the employment are required tobe controlled by themaster agreement. Individual teacher contracts cannot conform toa master agreement not yet inexistence. Therefore, both statutory provisions requiring individual teacher contracts and master agreements astoteachers represented by a bargaining agent, respectively, are satisfied by requiring master agreement to precede the individual contracts. I alsodisagree with the conclusion of the majority opinion that the respondent school board negotiated in good faith. Unilaterallyoffering represented teachers with the option of contracting individually with respect tonegotiable conditions of employment or forfeiting theirjob does not even constitutebargaining, letalone "good faith" bargaining. It 

### is a bare ultimatum and an absoluterejection of the clear intent and purpose of the Act. The majority failsto recognize the statutory distinction between conditions of employment subject to "negotiations and bargaining" and allother matters and issueswhich remain within the solediscretionof the school board and areconsidered "meet

### and confer" items only. Section 75-6119,R.C.M. 1947,defines and limits negotiations as follows: "It shall be the duty of all employers acting as a board, or acting by and through a bargaining agent designated or employed by the employer, and all teachers, or a representativeof teachers, to meet and confer for professional negotiation purposes at the request of either, except as provided by this act, to discuss matters relating directly to the employer-teacher relationship such as salary,hours and other terms of employment, and to negotiate and bargain for agreement on suchmatters. The matters of 

### negotiation and bargaining for agreement shall not includematters of curriculum,policy of operation, selection of teachers and other personnel, or physical plant of schools or other facilities,however nothing herein shall limit the obligation of employers to meet and confer as provided in section 75- 6118. 

## * 

## * *" The ratification of a master agreement is the only conclusion provided in the Act to the duty to bargain in good faith

as to negotiable conditions of employment. It contains no binding procedure to be used in the event that the parties should reach

an impasse. This may be a seriousweakness in the Act but courts
are not permitted to pass on the wisdom of legislation. Union Carbide v. Skaggs Drug Center, Inc., 139 Mont. 15, 359 P.2d 644; Yellowstone Bank v. Bd. of Equal., 137 Mont. 198, 351 P.2d 904; Willett v. State Examiners, 112 Mont. 317, 115 P.2d 287. Article X, 

### Section 8, of the Constitution of Montana creates school.boards as a constitutional entity but beyond that fact has

no further relevance to the issues in this matter. The respondent school board has not argued that the Act is unconstitutional or that the school board is autonomous with respect to the state legislature. The findings of fact and conclusions of law of 

### the district court which have, in effect, been affirmed by the majority did not rule on the constitutionality of the Act. This Court should have accepted jurisdiction in this proceeding and held that issuance and offering individual teachercontracts to teachers represented by a bargaining agent prior toratification of a master agreement is an enjoinable unfair Labor practice under the Act. The legislaturemust decide whether the Act requires amendment. The Court should enforce the Act according to its 

### terms.

Honorable Gordon R. Bennett sitting inplace of Mr. Justice Frank I. Haswell.