dissenting.
I dissent from parts I and III of the majority opinion, and do not reach part II since I believe that the matters covered in parts I and III should dispose of the case.
Anyone reading the majority opinion without reading Chapter 15-38.1, N.D.C.C., would think that the statute provided for something called a “good-faith negotiation process” which could be terminated by the publication of the findings of the Education Fact-finding Commission, that thereafter the representation of teachers by their chosen representative organization and bargaining unit was at an end, and that the School Board became free to negotiate with teachers individually.
None of this is provided by the statute. All of it originates in this court. The statute includes these provisions, unlimited as to time and unqualified as to binding effect:
“15-38.1-01. Purpose. — In order to promote the growth and development of education in North Dakota which is essential to the welfare of its people, it is hereby declared to be the policy of this state to promote the improvement of personnel management and relations between school boards of public school districts and their certified employees by providing a uniform basis for recognizing the right of public school certified employees to join organizations of their own choice and be represented by such organization in their professional and employment relationships with the public school districts.
“15-38.1-08. Right to negotiate.— Representative organizations shall have the right to represent the appropriate negotiating unit in matters of employee relations with the school board. Any teacher, or administrator, shall have the right to present his views directly to the school board.
“15-38.1-09. Subject of negotiations. —The scope of representation shall include matters relating to terms and conditions of employment and employer-employee relations, including, but not limited to salary, hours, and other terms and conditions of employment.
“15-38.1-11. Selection of representative organization.—
“1. . . .
“2. . . .
“3. . . .
“4. . . .
“5. . . .
“6. When a representative organization has been selected, its authority to represent the negotiating unit shall continue for at least one year from the date of such selection.
“15-38.1 — 12. Good faith negotiations.—
“1. The school board, or its representatives, and the representative organization, selected by the appropriate negotiating unit, or its representatives, shall have the duty to meet at reasonable times at the request of either party and to negotiate in good faith with respect to:
“a. Terms and conditions of employment and employer-employee relations. .
In Edgeley Education Assn. v. Edgeley Public School District No. 8, 231 N.W.2d 826 (N.D.1975), this court first interpreted Chapter 15-38.1, the statute giving collective-bargaining rights to teachers and school administrators. The present appeal gives us an opportunity to interpret a portion of that statute not dealt with in the Edgeley case. The portion we are concerned with now relates to procedures to be followed when negotiations are at an impasse, the impasse procedures of the statute have been followed, and no agreement has resulted.
I dissented in the Edgeley case, believing that the majority opinion made much of Chapter 15-38.1 meaningless, and I dissent again in this case, which I believe continues the process.
*215VIOLATION OF STATUTE AS TO IMPASSE PROCEDURES
The statutes as to the impasse procedures are Sections 15-38.1-03 to 15-38.1-05 and 15-38.1-13. They provide for the existence of an “education factfinding commission” of three members, appointed by the Governor, the Attorney General, and the Superintendent of Public Instruction. If after negotiations between the school board’s negotiators and the negotiators of a recognized bargaining unit of teachers or administrators, an “impasse,” as defined in the statute, exists, the parties may either use mediation or they may request the assistance of the Education Fact-finding Commission. If the latter choice is made, the Commission either finds the facts itself or appoints a fact-finder to do so, and ultimately makes formal findings and a “recommendation” which is published if the parties have not agreed within ten days after the recommendation is made.
The Dickinson School Board, in the case before us, took the position that nothing more was required of it in the way of negotiation after the publication, and proceeded to offer individual contracts to the teachers. The contracts were mailed within a period of two to seven days after the publication.
The majority states that the School Board was in error, that the negotiation process was not concluded when the Fact-finding Commission’s report was made, and “ . . . as a matter of law that, as of June 18, 1976, the School Board had failed to complete the. negotiation process required by Chapter 15-38.1, N.D.C.C., . . .” So far, so good. But then the majority goes on to say that “ . . .we find no facts which would indicate that such noncompliance was the result of bad faith” but “ . . . an incorrect interpretation of ambiguous statutory language” and that on October 21, 1976, the date of the district court’s order, the parties had “reached a conclusion of a good faith negotiating process .. . ”
I disagree. As I pointed out in my dissent in Edgeley, supra, 231 N.W.2d at 835,
“One thing that cannot be done in good-faith bargaining is to deal individually with members of bargaining units. This is, under general case law, an unfair labor practice [Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007 (1944)], even in the absence of bad faith [NLRB v. Pepsi Cola Bottling Co. of Miami, 449 F.2d 824 (5th Cir. 1971), cert. denied 407 U.S. 910, 92 S.Ct. 2434, 32 L.Ed.2d 683].”
We are not here interpreting a statute in a vacuum. We must assume that the North Dakota Legislature, in creating a system of collective bargaining for teachers, did so with knowledge of what had gone before in the field of labor relations and public employees, and legislated accordingly. Once there is a duty to bargain in good faith, as there is under Chapter 15-38.1, that duty continues regardless of whether or not agreement is reached. The duty to bargain collectively exists even after strikes are commenced (where strikes are permitted). Amalgamated Assn, of Street, Electric Ry. & Motor Coach Employees of America, Division 998 v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364, 22 A.L.R.2d 874 (1951).
It necessarily follows that the School Board was, as a matter of law, acting in bad faith from the time it issued individual contracts on June 18, and acted in bad faith in refusing to continue to bargain with the bargaining unit. The School Board never had, and does not now have, under the provisions of Chapter 15-38.1, the right to bargain individually with individual teachers. The majority apparently reads between the lines of the statute and finds a provision there which is invisible to me.
VIOLATION OF OPEN-MEETINGS STATUTE AND CONSTITUTIONAL PROVISION
The majority holds that the secret meetings of the School Board and its negotiating team violated the open-meetings statute, Section 44-04-19, N.D.C.C., and Article 92 of the Amendments to the Constitution of *216North Dakota. But then the majority holds that the violation is ‘‘harmless error”! I cannot be so cavalier toward the mandatory provisions of Constitution and statute. How can we say that the violation is harmless when the general public (for whose benefit the open-meetings law and constitutional provision were adopted) were left in the dark during the negotiating process?
The majority says that the violation of the Constitution and the open-meetings statute occurred early in the negotiation process and that “subsequent events mitigated such violation — including the public disclosure which resulted from five months of judicially supervised negotiations— . ” I fail to find in the record any indication that the practice of the School Board was changed one iota during the “judicially supervised negotiations.” The School Board’s brief says only that,
“Final discussion and action on all matters which affected the contract negotiations here were taken publicly and upon the record. This would seem to be more than ample compliance with Section 44-04-19 if it is deemed applicable and a reasonable construction in the public interest is placed upon it.”
The majority has found that the School Board violated the statute and the Constitution. The School Board says only that the Constitution and the statute should be interpreted so as to allow it to do what it has done. The majority says — and I agree — that the Constitution and the statute cannot be so interpreted. Not even the School Board claims that it complied with the law as we all agree it should be interpreted. Since the violation is obvious and continuous, even during the “judicially supervised negotiations,” I find no basis for holding the violation to be “harmless.”
The majority opinion twice quotes subsection 4 of Section 15-38.1-12, N.D.C.C., which provides:
“The obligations imposed in this section shall not compel either party to agree to a proposal or to make a concession.”
This dissent, of course, nowhere suggests that either party is obligated to agree with the other. I only insist that each party is obligated to bargain in good faith with the other, that this duty is a continuing one which is not terminated by the publication of the recommendations of the Fact-finding Commission, that such duty is breached by dealing individually with individual teachers represented by a representative organization of their own choosing, and that a continuing violation of the open-meetings constitutional provision and statute is not harmless error.
I would continue the injunction and require the parties to continue negotiating, and would hold that in the meantime the teachers in the Dickinson school system are teaching without valid contracts, although they are entitled to the wages and working conditions under which they have been teaching without a contract since the beginning of the school year. I believe they may also be entitled to additional compensation and other working conditions, depending upon the outcome of negotiations which should continue and upon the outcome of possible actions by teachers or their representative organization for damages for violation of their statutory and constitutional rights.