concurring specially.
I agree with the opinion authored for the Court by Justice Meschke. I write separately to note my dismay with the fact that the judicial system was required to decide this matter prior to negotiations between the parties to resolve the controversy.
There is no doubt that the matter of the number of class periods to be taught by each teacher is a matter for negotiations between the parties. “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.” Section 15-38.1-09, NDCC. See Fargo Ed. Ass’n v. Fargo Public Sch. Dist., 291 N.W.2d 267 (N.D.1980).
This controversy began prior to negotiations for the 1990-1991 school year were started in April 1990. Yet, as the majority opinion observes, “There were no negotiations about the change in the standard number of daily classes to be taught during the ensuing school term. Unaccountably, the subject was not discussed.”
Section 15-38.1-12, NDCC, requires the parties to:
“negotiate in good faith with respect to: a. Terms and conditions of employment and employer-employee relations.
b. * * *
c. Any question arising out of interpretation of an existent agreement.
* * * * * *
The term “good faith” is defined by section 1-01-21, NDCC, to “consist in an honest intention to abstain from taking any unconscientious advantage of another even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious.” [emphasis supplied]. That definition is applicable to the term “good faith” as used in Chapter 15-38.1, governing negotiations between school boards and teachers. Fargo Ed. Ass’n v. Paulsen, 239 N.W.2d 842 (N.D.1976). In that decision this court noted that the term “ ‘negotiate’ simply means to present proposals and offer counterpro-posals, to discuss proposals, to carry on a dialogue, to exchange ideas, all for the purpose of persuading or being persuaded by logic and reasoning.” 239 N.W.2d at 847. We further observed that “it is the art of friendly persuasion. The persuasion can result in an agreement and understanding of or a settlement of issues. It does not mean that an agreement must be reached.” Id. Finally, the court commented that it is apparent that the term “ ‘negotiate in good faith’ does not have any mysterious connotations or hidden meanings and as such it should not be too difficult to understand or to work within its framework.” Id.
Despite this long standing elucidation of the purpose of Chapter 15-38.1, neither *573party brought the subject to the bargaining table. Although both parties express various reasons for not doing so, it is apparent each party was aware of the other party’s position on the matter. This is not the good faith negotiations to which the statutes refer. Rather, it appears both parties intended to rely on the “forms or technicalities of law” to the disadvantage of the other party, i.e., the school district intended to rely on the omission of any reference to the number of daily classes in the current contract and the exclusive management clause in the current contract, and the Education Association intended to rely on its contention that the term “extra class” was ambiguous and resort could be had to the 1975-76 agreement to resolve the ambiguity. Both positions present a “question arising out of interpretation of an existent agreement” which is specifically made a subject of negotiation pursuant to section 15-38.1-12(1)(c).
The negotiations statutes do not require that an agreement must be reached. Fargo Ed. Ass’n v. Paulsen, supra. Here the timing of the District’s proposal made to increase the number of classes for the 1990-91 school year shortly before the start of negotiations for the 1990-91 contract, presented a unique opportunity to discuss the issue during those negotiations. Had the parties attempted to negotiate the matter and failed that would be the appropriate time to ask the courts to resolve the controversy. To ask the courts to resolve the issue prior to negotiations discredits the concept of negotiations. Were we empowered to do so, I would decline to decide the issue and require the parties to negotiate. But we do not pick and choose the disputes we are to resolve and I therefore concur in the majority opinion.