dissenting.
I deem it important to keep in mind what this case is all about. To the majority its importance seems to be that an agreement to agree is a “contract” but a formal written contract is not really a contract, but by decision of this Court magically becomes open ended and subject to future negotiation. Perhaps more important is what this case does not involve. The majority opinion does not discuss nor find any fault with the facts as found by the trial court and so obviously the case does not involve facts. Further, in my opinion, the case does not involve orthodox and traditional labor law regulated by congressional enactments [NLRB] nor the philosophy of decisions interpreting those statutes.
The majority opinion relegates the issues of mootness to a footnote wherein Finding No. X and Conclusion of Law No. S of the trial court which find and conclude the issue of mootness are ignored by the majority opinion. Finding No. X states:
“Sometime after August 1, 1976, [and presumably before the date of the signing of the Findings and Conclusions, to wit: October 7, 1976] Joint School District No. 412 entered into employment contracts for the 1976 — 77 school year with individual teacher members of the Buhl Education Association and all teaching positions in the District are now filled.”
[Thereafter the district judge specifically invited comment from counsel stating, “If either party objects to its inclusion in these findings, please advise me within five days of receipt of the findings, and I will strike Finding X and start all over again.” No party objected to the inclusion of said Finding.]
Conclusion of Law No. S states:
“Any questions regarding terms and conditions of employment contracts for the 1976-77 school year are presently moot by virtue of Finding X. Any mediation would be moot as it could not affect existing contracts for the 1976-77 school year.”
The majority opinion characterizes the “negotiating agreement” between the parties as a “contract” and states, “This contract was, of course, subject to all of the law of Idaho governing contracts.” On the other hand, the trial judge in his carefully drafted Memorandum Opinion and Conclusions of Law pointed out, and I believe correctly, that the Professional Negotiations Act envisages three agreements or contracts in the conduct of successful collective bargaining. He points out in Conclusion of Law J that it is
“simply a mutually-acceptable ‘game plan’ in which the parties spell out the specific topics or matters they are willing to consider and discuss in their coming negotiations and the rules of procedure the parties are willing to follow during the contemplated negotiation process. * * * Its obvious purpose is to set some reasonable limits on the agenda or topics the parties will be discussing and negotiating.”
In short, such a “contract” is not a contract at all, in my judgment, but simply an indication that the parties are willing to discuss and negotiate and seek to arrive at a “contract” sometime in the future. To make matters even more confusing, it is my understanding of the record that the plaintiff Education Association submitted to the board a fifty-five page document for negotiation which, in part at least, purports, by its own terms, to supersede any negotiating agreement of 1972.
The majority decision abruptly changes horses in the mid stream of its opinion *24when it considers the “contracts” entered into by the board and its professional employees. As I understand the majority, it states those “contracts” are not really “contracts” at all, but rather some shadow type arrangement between each individual professional employee and the board that some type of employment is offered and accepted, but however subject to every conceivable variable which may thereafter be negotiated between the board and the Education Association to which the teacher may or may not belong. Those variables implicit in the majority’s reference to the NLRB and labor negotiations in the private sector may very well include wages, hours of employment, classroom size, participation in management and supervision, participation in curricula, union or closed shop, and almost any other item under the sun which might or might not have been contained in the proffered fifty-five page list of demands. To state, as I understand the majority, that documents executed between the board and its individual professional employees are “contracts” but are subject to every conceivable change in modification at some point in the future dependent upon “negotiations” is to me the height of illogic and the ignoring of the most basic tenets of the law of contract. As stated by the trial court in its Conclusions of Law, “It is Hornbook Law that no existing contract between A and B is amended or modified by a contract between A and X. Or, to put it another way, no existing employment contract between defendants and a teacher is amended or modified by a contract between defendants and the plaintiffs negotiated in the future.”
In my judgment, the welter of conflicting statutes and theories in the State of Idaho which relate to the tenure of teachers, the hiring or non-hiring of teachers, the representation of teachers and mandatory negotiations between boards and teacher representatives, together with the various time elements involved, must, as was suggested by the learned trial judge here, have been drafted by Lewis Carroll.
It is my further belief that the majority’s reference to the statutes and cases relating to the National Labor Relations Board and the traditional and orthodox concepts of collective bargaining in the private sector cannot serve but to further sow the seeds of confusion. Those concepts are founded in congressional enactments and it is more than arguable that Congress has no such authority to legislate in the area of state and local government employees. See National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976); see generally Gee, A Survey Analysis of Collective Bargaining in the Public Schools, 15 Willamette L.Rev. 366 (1979).
My view of the record indicates that a controversy arose in early 1976. The controversy was resolved as between the professional employees and the Board between August 1 and October 7 of 1976, when all positions were filled by the acceptance of contracts. In my judgment, at some time this Court will have to enter this never-never land and resolve the conflicting statutes and concepts, but the instant case is a poor vehicle. Its wheels were lost four years ago.
I would dismiss for mootness.