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, in and 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, 1974 
Hon. Gordon R. Bennett, District Judge, sitting in place of 

Mr. Justice Frank I. Haswell, dissenting: 

I cannot concur entirely with the order of the majority 

or the reasoning behind the order because it denies all effect to 

the "Professional Negotiations Act for Teachers", sections 75- 

6115 through 75-6128, Revised Codes of Montana, 1947, hereinafter 

referred to as "the Act". It must be presumed that the Legislature intended the Act to make at least some substantive changes 

in the existing law in order to accomplish 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 to negotiations with its teachers the majority has stripped the 

Act of its meaning and returned the parties to their former positions as if the Act had never been passed. Statutes of this state 

are to be construed according to the legislative intent. Courts 

may only ascertain and declare what is contained in statutes and 

must give effect to every provision if possible. 

The Act expressly made major changes in the relationship 

between teachers and their employing school boards. For the first 

time in the history of this state, teachers were given the right 

to bargain collectively as to negotiable conditions of employment 

through representatives of their choice who function as the sole 

representatives for all teachers in the 'appropriate unit". Direct 

negotiations between represented individual teachers and their 

employer are prohibited. Both the representative of the teachers 

and the school board have a duty to negotiate and bargain. The 

intended result of the negotiations is to arrive at a master agreement which must be reduced to writing and ratified. All individual 

teacher contracts must conform to the master agreement. It is an 

unfair labor practice for employing boards of education to interfere 
with, restrain or coerce teachers in their right of self-organization or selection of a representative,or to refuse to negotiate 

in good faith. District courts of this state are granted jurisdiction to enjoin unfair labor practices as defined in the Act. 

I cannot construe the foregoing provisions as giving 

boards of education "final authority". These sections expressly 

grant teachers of this state additional legal rights not previously 

recognized by statute and to the extent granted the authority of 

boards of education is diminished. 

The Act requires good faith collective bargaining. Good 

faith bargaining can only occur between relative equals and is 

inherently impossible if either side has "final authority". The 

Act does not require agreement. What is required is continued 

good faith negotiations between the parties until a master agreement is agreed upon. 

The relator teachers in this 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 constitutes an 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 to this question. There is 

also no dispute concerning the fact that the school board is 

attempting to require teacher acceptance of individual contracts 

within a specified period of time at the penalty of forfeiture of 

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 to be reduced to writing and ratified. No statute 

directly provides that either type of contract should precede the 
other. It is the duty of this Court to provide a construction 

which gives both provisions effect, if possible, consistent 

with the expressed legislative intent. 

Individual contracts prior to ratification of a master 

agreement serve no useful or legitimate purpose. 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 to accept the "reelection" in writing within 20 days or forfeit the position. By 

reason of these sections school boards are fully advised as to the 

identity of each teacher who agrees to teach during the forthcoming 

year within 20 days after the teacher has received the notice. The 

terms and conditions of the employment are required to be controlled 

by the master agreement. Individual teacher contracts cannot conform to a master agreement not yet in existence. Therefore, both 

statutory provisions requiring individual teacher contracts and 

master agreements as to teachers represented by a bargaining agent, 

respectively, are satisfied by requiring master agreement to 

precede the individual contracts. 

I also disagree with the conclusion of the majority opinion 

that the respondent school board negotiated in good faith. Unilaterally offering represented teachers with the option of contracting individually with respect to negotiable conditions of employment or forfeiting their job does not even constitute bargaining, 

let alone "good faith" bargaining. It is a bare ultimatum and an 

absolute rejection of the clear intent and purpose of the Act. 

The majority fails to recognize the statutory distinction 

between conditions of employment subject to "negotiations and 

bargaining" and all other matters and issues which remain within 

the sole discretion of the school board and are considered "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 representative of 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 such matters. The matters of negotiation and 

bargaining for agreement shall not include matters 

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 serious weakness 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 teacher 
contracts to teachers represented by a bargaining agent prior 

to ratification of a master agreement is an enjoinable unfair 

Labor practice under the Act. The legislature must decide whether 

the Act requires amendment. The Court should enforce the Act 

according to its terms. 

Honorable Gordon R. Bennett sitting 

in place of Mr. Justice Frank I. 

Haswell.