concurring.
Although concurring with the Majority Opinion, I wish to clarify my position. As the Majority correctly points out, the “critical fact” in the present case is that the school board is under no legal obligation to engage in collective bargaining. It is upon this fact which both errors of the trial court order rest.
In previous decisions, we have held that school boards have the authority to enter collective bargaining agreements. East Chicago Teachers Union, Local No. 511 v. Board of Trustees of School City of East Chicago (1972), 153 Ind.App. 463, 287 N.E.2d 891; Gary Teachers Union, Local No. 4, American Federation of Teachers v. School City of Gary (1972), 152 Ind.App. 591, 284 N.E.2d 108; but emphasized the permissive nature of that authority in contrast to any mandatory duty to enter negotiations. In the present case, the school board had no statutory, common law or contractual duty to enter negotiations. See, County Department of Public Welfare of Lake County v. American Federation of State, County and Municipal Employees, AFL-CIO, Indiana Council 62 (1981), Ind.App., 416 N.E.2d 153; Peters v. Poor Sisters of Saint Francis Seraph (1971), 148 Ind.App. 453, 267 N.E.2d 558. Therefore, the trial court clearly erred in ordering the school board to negotiate with the employees.
As I recently noted in my concurring opinion to County Department of Public *469Welfare of Lake County v. American Federation of State, County and Municipal Employees, AFL-CIO, Indiana Council 62, supra, 416 N.E.2d at 158, n.2:
“Indiana courts have generally held that public employees may enter into collective bargaining agreements (and, by implication, consent election agreements) with their governmental employers even in the absence of specific statutory authority for collective bargaining... Such collective bargaining agreements are permissive and require the consent of both parties to make them enforceable . . .. ” (parentheses original, citations omitted)
Therefore, the collective bargaining process, one which is “permissive” and requires the “consent” of both parties, is based upon historic concepts of freedom to contract.
Apparently the school board, as evidenced by its policy statement, as well as the employees anticipated that their future employment relationship would be controlled by a collective bargaining agreement. The factual context out of which the trial court’s order arose may aptly be denominated as “preliminary negotiations” to the formation of that contractual relationship. See, 1 Corbin on Contracts, § 22 (1963); 1 Williston on Contracts, § 27 (1957).
The proceedings between the school board and the employees should be viewed the same as any preliminary negotiations by two parties attempting to enter a contract. The school board’s “voluntary policy for collective bargaining,” as characterized by the Majority, was nothing more than an offer to bargain with the employees if the employees met the two conditions set by the policy. As in any preliminary negotiations, the employees could either accept or reject that offer. The employees chose to reject the school board’s offer by not meeting either of the two conditions. The employees thereafter made a counteroffer by sending their chosen bargaining representative to negotiate with the school board. The school board rejected the counteroffer by refusing to negotiate with that representative.
The trial court was faced with a factual situation characteristic of most preliminary negotiations. Whether the first or last step in such negotiations, these are typically offers, counteroffers, acceptances and rejections. Recognizing that a certain amount of “coercion” is placed upon the party forced to either accept or reject an offer, I find such “coercion” a necessary by-product of allowing parties to freely bargain and contract. The freedom in the bargaining process necessarily carries the burden of making the choice to accept or reject offers and to bear the resulting consequences from that choice.
In the present case the employees attempt to raise the “coercion” in the preliminary bargaining process to the level of wrongful “interference” with their rights to organize and choose a bargaining representative. See, IC 22-7-1-2. However, the school board’s policy was a self-imposed restraint setting two conditions precedent to its own negotiating rather than attempt to impose restraints upon the employees. That is, this policy restricts the conditions upon which the school board may negotiate as opposed to an attempt to restrict the conditions upon which the employees may negotiate.
Therefore, the error in the trial court order restraining the school board from “interfering” with the employees’ right to organize and choose a representative was that the school board had not interfered with those rights by making its policy statement.