Webster v. Bismarck Public School District No. 1

*100VANDE WALLE, Justice,

concurring specially.

I concur in the conclusion reached by Justice Pederson in the majority opinion. In the appellants’ argument it was suggested that the school district refused to negotiate the method of payment because the item was not a subject of mandatory negotiation as a result of this court’s decision in Fargo Ed. Assn. v. Fargo Public Sch. Dist., 291 N.W.2d 267 (N.D.1980). In that decision we stated:

“Because of the ambiguity in the Act [Chapter 15-38.1, N.D.C.C., Teachers’ Representation and Negotiation Act], it is impossible for courts to mandate negotiation on items other than (1) salary, (2) hours, (3) formulation of an agreement, (4) binding arbitration, and (5) interpretation of an existing agreement.” 291 N.W.2d at 271.

If, in fact, the school district had refused to negotiate the matter, as the term “negotiate” has been defined by this court in Fargo Ed. Assn. v. Paulsen, 239 N.W.2d 842 (N.D.1976), I would vote to reverse because I believe the manner of payment of salary is encompassed within the term “salary” which this court said is a subject of mandatory negotiation. Section 15-38.1-09, N.D. C.C., requires the scope of negotiations to specifically include salary, and a construction which would limit the term “salary” only to amount as opposed to manner and method of payment would be too restrictive.

As Justice Pederson has noted, however, the matter was presented to the school district as a subject of negotiation by the teachers and, although the school district refused to concede on the issue, it was only after lengthy discussion that the matter was dropped. In Fargo Ed. Assn. v. Paulson, supra, Justice Sand, writing for the court, stated that the term “negotiate”:

“. .. simply means to present proposals and offer counterproposals, to discuss proposals, to carry on a dialogue, to exchange ideas, all for the purpose of persuading or being persuaded by logic and reasoning. This means that the parties must also be willing to listen and not only talk. It is the art of friendly persuasion. The persuasion can result in an agreement and understanding or a settlement of issues. It does not mean that an agreement must be reached. Neither side is required by law to surrender or abrogate any of its duties and responsibilities. Neither does it mean formal or binding arbitration.” 239 N.W.2d at 847.

I am persuaded that in this instance the school district negotiated the issue with the teachers but refused to agree to another method of payment of salary for that school year. In the administrative procedure which the majority opinion refers to in a footnote, the Education Factfinding Commission established by Chapter 15-38.1, N.D.C.C., refused to consider the matter because it had been the subject of negotiations and, when no agreement was reached, it was dropped. Although the negotiations relative to the method of payment of salary did not achieve the result the appellants desired, the issue was nevertheless negotiated.