Jan 28 2015, 9:58 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
INDIANA EDUCATION EMPLOYMENT Eric M. Hylton
RELATIONS BOARD Laura S. Reed
Gregory F. Zoeller Riley Bennett & Egloff, LLP
Attorney General of Indiana Indianapolis, Indiana
David Steiner
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Education Employment January 28, 2015
Relations Board and Nettle Court of Appeals Cause No.
Creek School Corporation, 49A02-1402-PL-78
Appeal from the Marion Superior
Appellants,
Court
The Honorable Thomas J. Carroll,
v. Judge
Cause No. 49D06-1204-PL-16036
Nettle Creek Classroom
Teachers Association,
Appellee
Bradford, Judge.
Case Overview
Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015 Page 1 of 18
[1] In 2011, Appellant Nettle Creek School Corporation (the “School
Corporation”) and Appellee Nettle Creek Classroom Teachers Association (the
“Association”) were engaged in collective bargaining for the 2011-2012 school
year. The School Corporation and the Association (collectively, “the parties”)
were unable to agree to a Collective Bargaining Agreement (“CBA”) and came
to an impasse. Both sides submitted a last best offer (“LBO”) to Appellant the
Indiana Education Employment Relations Board (the “Board”) after mediation
failed.
[2] The Association initiated judicial review after the Board adopted the School
Corporation’s LBO. On November 27, 2013, the trial court found that the
Board erroneously determined that the relevant proffered provisions of the
parties’ LBOs included an improper attempt to bargain hours rather than
wages. The trial court also found that the Board erroneously concluded that the
Association’s LBO contained an improper attempt by the Association to
bargain for an overtime compensation system that is inconsistent with both
Federal and Indiana law.
[3] Upon review, we conclude that while teachers are not entitled to earn overtime
for the completion of direct teaching functions, the relevant legal authority does
not exclude the bargaining for and potential receipt of additional wages for the
completion of required ancillary or voluntary co-curricular duties. Accordingly,
we remand the matter to the Board for further proceedings that are consistent
with this opinion.
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Facts and Procedural History
[4] In 2011, the parties were engaged in collective bargaining for the 2011-2012
school year. The parties, however, were unable to agree to a CBA and came to
an impasse. In light of the parties’ failure to agree to a CBA, the parties
participated in mediation. After mediation failed, both sides submitted a LBO
to the Board. The disputed issues related to the Association’s request for
additional compensation for required hours worked outside the normal
workday and certain grievance procedures.1
[5] On November 29, 2011, the Board appointed a factfinder to hear the parties’
case. With respect to the parties’ dispute relating to the Association’s request
for additional compensation for hours worked outside the normal seven-and-
one-half-hour workday, the Association’s proffered version of the provision at
issue reads as follows:
A. (With the understanding that the established contractual
teacher work day is seven hours and thirty minutes),[2] the [School
Corporation] shall have the right to require a total of fifteen (15) hours
1
The parties’ dispute relating to the grievance procedures is not at issue in the instant appeal.
2
The parties do not appear to dispute that the School Corporation expects its teachers to work seven-
and-one-half hours each day.
Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015 Page 3 of 18
after school activities per semester for each full-time teacher, without
additional compensation.
B. The compensation for each hour in excess of the fifteen (15)
hours shall be based on the following rate:
Thirty Four (34) dollars per hour.
Appellant’s App. p. 80. The School Corporation’s proffered version of the
provision at issue reads as follows:
Teachers are professional employees and are paid on a salary basis
rather than an hourly basis. The length of the normal work day for
teachers will be 7.5 hours. This normal teacher work day may be
extended as necessary to prepare and update lesson plans and other
instructional materials; conduct parent/teacher conferences; evaluate
and record student performance; meet with students to counsel them
and address their academic needs; attend and present information at
faculty committee meetings, case conferences; participate in
instructional leadership activities, including the responsibility for
conducting program and staff evaluation; and participate in co-
curricular assignments and extra-curricular assignments listed in the
ECA Schedule in this Collectively Bargained Agreement.
Appellant’s App. p. 99. Following a hearing, the factfinder issued a
recommended order in which it adopted the School Corporation’s LBO as the
parties’ CBA for the 2011-2012 school year. On January 11, 2012, the
Association appealed the factfinder’s order to the Board.
[6] The Board held a hearing on January 24, 2012, after which it issued a final
order. With respect to the parties’ dispute relating to the Association’s request
for additional compensation for required hours worked outside the normal
workday, the Board stated the following:
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Under [Indiana Code chapter] 20-29-4 and [Indiana Code section] 20-
29-6-18(b), the [Board’s] decision in this matter is restricted to wages,
salary, and wage-related fringe benefits. In light of strong statutory
language and legislative intent toward restricting contracts to these
limited subjects, we are bound to omit from the imposed contract any
language referring to other subjects. Compensation for hours worked
outside the contracted work day and work year is a problematic issue,
because it suggests a determination of hours to be worked. Hours,
previously a subject of bargaining, has been legislatively re-categorized
as an item for the discussion process under [Indiana Code section] 20-
29-6-7, and, as such, may not receive even a mention in the contract.
In order to comply with these statutory mandates here, the contract
imposed by the [Board] for the Nettle Creek teachers cannot include
Article IV of the School Corporation’s LBO or Article III, Section G of
the Association’s LBO, as both contain daily hours of work.
****
6. [Indiana Code chapter] 20-29-4, [Indiana Code section] 20-29-6-
18(b), and [Indiana Code section] 20-29-6-4.5(a)(5) make abundantly
clear that all contracts imposed by [the Board] in the factfinding
process are restricted to wages, salary, and wage-related fringe benefits.
7. In order to reconcile the statutory mandates of [Indiana Code
section] 20-29-6-15.1 and [Indiana Code section] 20-29-6-18(b) in this
case, and to assure that the contract we impose contains only
statutorily-permissible language, the [Board] will strike the
impermissible portion and adopt the remainder of one party’s LBO.
8. Were we to find that both LBOs contained only permissible
language in regards to hours, we would, nonetheless, be bound to
reject the Association’s proposal on compensation. An “overtime”
system that permits different rates of pay based on the number of hours
worked is precluded by statutory individual contract requirements.
Specifically, [Indiana Code section] 20-28-6-2(a)(3)(C) provides that a
“contract entered into by a teacher and a school corporation must …
contain the … total salary to be paid to the teacher during the school year…”
[emphasis added]. The individual teacher’s contract could not be
executed under an “overtime” compensation system because such a
system would make it impossible to calculate a total salary to be paid
during the school year in advance because the salary would be
adjusted throughout the year based on the number of hours the teacher
works.
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Appellant’s App. pp. 206-07, 209-10 (emphasis and last set of brackets in
original, footnotes omitted). Consistent with the above-stated language, the
Board found as follows: “[t]he Association’s appeal is denied and the School
Corporation’s [LBO] is adopted as the Nettle Creek contract, except insofar as
any references to the hours of work … in the School Corporation’s [LBO] shall
be omitted from the contract.” Appellant’s App. p. 213.
[7] On April 18, 2012, the Association filed a verified petition for judicial review of
the Board’s decision in the trial court. On May 9, 2012, the School Corporation
filed its answer to the Association’s petition. On June 13, 2012, the Board also
filed an answer to the Association’s petition. The Association subsequently
filed a motion for judgment on the administrative record and supporting
memorandum. The Board filed a response in opposition to the Association’s
motion on September 30, 2013. On October 11, 2013, the School Corporation
filed a notice of its intention not to file a response to the Association’s motion.
The Association subsequently filed a reply in favor of its motion.
[8] On November 27, 2013, the trial court issued its findings of fact and
conclusions thereon. Specifically, the trial court found as follows:
15. The issue in this case is whether [the Board] incorrectly rejected
the Association’s LBO based on its determination that [Indiana Code
section] 20-29-6-4 prohibits the Association and the School
Corporation from bargaining additional compensation for hours
worked outside a teacher’s contracted work day, and its determination
that the Association’s LBO would create a compensation system in
violation of [Indiana Code section] 20-28-6-2. Additionally, what
remedy should be entered if [the Board] incorrectly rejected the
Association’s LBO is also at issue.
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****
17. … [I]t is this Court’s determination that [the Board] incorrectly
determined that [Indiana Code section] 20-29-6-4 does not permit the
School Corporation and the Association to bargain pay for additional
hours worked outside a teacher’s regular teacher’s contract, and
incorrectly determined that the Association’s LBO would “create a
compensation system in violation of [Indiana Code section] 20-28-6-
2(a)(3)(c).” (R. 490-91).
18. As a result, the Court finds that [the Board’s] decision is
arbitrary, capricious and not in accordance with the law. Ind. Code §
4-21.5-5-14.
*****
25. The bargaining of additional wages for additional hours worked
outside the contracted work day does not bargain hours, but instead bargains
wages.
26. At no time does the School Corporation lose the power to determine
how many hours teachers work per day. Instead, the School Corporation
unilaterally determines the number of hours and if a teacher is required to work
additional hours outside the contracted work day, [Indiana Code section] 20-
29-6-4(a)(2) allows wages to be bargained to compensate teachers for this
additional work.
27. Therefore, [the Board] incorrectly held that “Compensation for
hours worked outside the contracted work day is a problematic issue,
because it suggests a determination of hours to be worked.”
28. Next, [the Board] incorrectly held that:
An “overtime” system that permits different rates of pay based on the
number of hours worked is precluded by statutory individual contract
requirements. Specifically, [Indiana Code section] 20-28-6-2(a)(3)(C)
provides that a “contract entered into by a teacher and a school
corporation must … contain the … total salary to be paid to the teacher
during the school year.…” [emphasis added]. The individual teacher’s
contract could not be executed under an “overtime” compensation
system because such a system would make it impossible to calculate a
total salary to be paid during the school year in advance because the
salary would be adjusted throughout the year based on the number of
hours the teacher works.”
29. [The Board’s] decision does not take into consideration all of
the language of [Indiana Code section] 20-29-6-4(a) which states:
(a) A school employer shall bargain collectively with the exclusive
representative on the following:
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(1) Salary.
(2) Wages.
(3) Salary and wage related fringe benefits, including accident,
sickness, health, dental, vision, life, disability, retirement benefits, and
paid time off as permitted to be bargained under [Indiana Code
section] 20-28-9-11.
****
31. The $34/hour that the Association proposed in its LBO is the
bargaining of “wages” and not “salary.” Therefore, the Association’s
proposal does not violate [Indiana Code section] 20-29-6-4.
****
40. Again, if the parties were to agree to the Association’s wage
proposal, they would not be bargaining the number of hours worked.
Instead, the School Corporation would control how many hours
teachers worked above and beyond the hours contained in their regular
teacher’s contract. The only change is that the parties will be allowed
to bargain wages for this additional work.
41. This gives a school corporation flexibility if it needs to add
hours on top of what is in a regular teacher’s contract and provides
wages to teachers for working the extra hours.
42. [The Board] was concerned that allowing the bargaining of
additional wages would violate [Indiana Code section] 20-3-28-6-
2(a)(3)(C) because the regular teacher’s contract must contain the total
“salary” to be paid to a teacher during the school year. This ruling has
no effect on a teacher’s “salary.” Instead, this ruling allows the
bargaining of additional “wages” for additional hours worked beyond
what is contained in a regular teacher’s contract.
43. As previously stated, “salary” and “wages” are two separate
items that can be bargained under [Indiana Code section] 20-29-6-4
and therefore have different meanings.
44. Based on the foregoing, this Court finds that under [Indiana
Code section] 20-29-6-4, school corporations and teacher associations
can bargain additional wages for hours worked over the number of
hours contained in a regular teacher’s contract.
45. The Court further finds that the wage proposal made by the
Association at fact-finding in its LBO is permissible and can be
bargained under [Indiana Code section] 20-29-6-4, and it does not
violate the regular teacher’s contract statutes at [Indiana Code section]
20-28-6-2.
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Tr. pp. 374, 375, 377-78, 380 (emphasis added to Paragraphs 25 and 26;
emphasis, brackets, and ellipses in Paragraph 28 in original). In making these
findings, the trial court reversed the Board’s decision and ordered that the
matter be remanded to the Board “to enter an order consistent with [the trial
court’s order], and to make further findings [as to] whether the School
Corporation’s or the Association’s LBO should be chosen based on a correct
interpretation of the law as stated herein.” Appellant’s App. p. 380-81. The
Board subsequently initiated the instant appeal.3
Discussion and Decision
I. Standard of Review
[9] While the legislature has granted courts the power to review the action
of state government agencies taken pursuant to the Administrative
Orders and Procedures Act [(“AOPA”)], this power of judicial review
is limited. See State Bd. of Registration for Prof’l Eng’rs v. Eberenz, 723
N.E.2d 422, 430 (Ind. 2000); Indiana Dep’t of Envtl. Management v.
Conard, 614 N.E.2d 916, 919 (Ind. 1993); Indiana Dep’t of Natural
Resources v. United Refuse Co., 615 N.E.2d 100, 103 (Ind. 1993). A court
may only set aside agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
3
We disagree with the Association’s assertion that the Board does not have standing to prosecute
the instant appeal.
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(2) contrary to constitutional right, power, privilege, or
immunity;
(3) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
See Ind. Code § 4-21.5-5-14(d).
LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000). “The party seeking
judicial review bears the burden to demonstrate that the agency’s action is
invalid.” Pendleton v. McCarty, 747 N.E.2d 56, 61 (Ind. Ct. App. 2001) (citing
Ind. Code § 4-21-5-5-14(a)).
[10] A review of an administrative agency’s decision at the trial court level “is not
intended to be a trial de novo, but rather the court simply analyzes the record as
a whole to determine whether the administrative findings are supported by
substantial evidence.” Whirlpool Corp. v. Vanderburgh Cnty.-City of Evansville
Human Relations Comm’n, 875 N.E.2d 751, 759 (Ind. Ct. App. 2007) (citing
Amoco Oil Co. v. Comm’r of Labor, 726 N.E.2d 869, 872 (Ind. Ct. App. 2000)). A
party may appeal a trial court’s determination of the propriety of the
administrative agency’s decision pursuant to the rules governing civil appeals.
See Ind. Code § 4-21.5-5-16. “When reviewing an administrative agency’s
decision, appellate courts stand in the same position as the trial court.”
Pendleton, 747 N.E.2d at 61 (citing Amoco, 726 N.E.2d at 872).
[11] An appellate court “may not substitute [its] judgment on factual matters for that
of the agency and are bound by the agency’s findings of fact if [the findings] are
supported by substantial evidence.” Whirlpool, 875 N.E.2d at 759 (citing Ind.
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Dep’t of Natural Res., Law Enforcement Div. v. Cobb, 832 N.E.2d 585, 590 (Ind. Ct.
App. 2005)).
Furthermore, courts that review administrative determinations, at both
the trial and appellate level, review the record in the light most
favorable to the administrative proceedings and are prohibited from
reweighing the evidence or judging the credibility of witnesses.
[Amoco, 726 N.E.2d at 873.] While reviewing courts must accept the
agency’s findings of fact if supported by substantial evidence, no such
deference need be accorded an agency’s conclusions of law, as the law
is the province of the judiciary. Id.
Id. However, “[a]n interpretation of a statute by an administrative agency
charged with the duty of enforcing the statute is entitled to great weight, unless
this interpretation would be inconsistent with the statute itself.” LTV Steel, 730
N.E.2d at 1257; State Emps. Appeals Comm’n v. Barclay, 695 N.E.2d 957, 959-60
(Ind. Ct. App. 1998).
II. Analysis
A. Relevant Statutory Authority Relating to Collective
Bargaining Between a School Corporation and the Exclusive
Representative of Its Teachers
[12] Indiana Code section 20-29-6-4(a) provides that a school corporation shall
bargain collectively with the exclusive representative of its teachers (the
“teachers’ representative”) regarding the following: (1) salary; (2) wages; and
(3) salary and wages related to fringe benefits, including accident, sickness,
health, dental, vision, life, disability, retirement benefits, and paid time off.
During collective bargaining, the school corporation and the teachers’
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representative must discuss certain items, including: (1) curriculum
development and revision; (2) selection of curricular materials; (3) teaching
methods; (4) hiring, evaluation, promotion, demotion, transfer, assignment,
and retention of certificated employees; (5) student discipline; (6) expulsion or
supervision of students; (7) pupil/teacher ratio; (8) class size or budget
appropriations; (9) safety issues for students and employees in the workplace,
except those items required to be kept confidential by state or federal law; and
(10) hours. Ind. Code § 20-29-6-7. However, “[t]he obligation to discuss does
not require either party to enter into a contract, agree to a proposal, or make a
concession related to the items listed in [Indiana Code section 20-29-6-7].” Ind.
Code § 20-29-6-8.
[13] If an impasse is declared at any time after at least sixty days following the
beginning of formal collective bargaining, the Board shall appoint a mediator
from the Board’s staff or an ad hoc panel. Indiana Code § 20-29-6-13(a). The
mediation must consist of not more than three mediation sessions and must
result in either (1) an agreement between the parties on the items permitted to
be bargained or (2) each party’s LBO, including fiscal rationale, related to items
permitted to be bargained. Indiana Code § 20-29-6-13(c). If an agreement has
not been reached on the items permitted to be bargained within fifteen days of
the end of mediation, the Board shall initiate fact-finding. Indiana Code § 20-
29-6-15.1(a).
[14] Fact-finding must culminate in the factfinder imposing contract terms on the
parties. Ind. Code § 20-29-6-15.1(b).
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The factfinder must select one (1) party’s last best offer as the contract
terms. The factfinder’s order must be restricted to only those items
permitted to be bargained and included in the collective bargaining
agreement … and must not put the employer in a position of deficit
financing (as defined in [Indiana Code section] 20-29-2-6). The
factfinder’s order may not impose terms beyond those proposed by the
parties in their last, best offers.
Id. Fact-finding must not last longer than fifteen days. Ind. Code § 20-29-6-
15.1(d). Either party may appeal the decision of the factfinder to the Board
within thirty days after receiving the factfinder’s decision. Ind. Code § 20-29-6-
18(a). The Board’s decision must be restricted to only those items permitted to
be bargained and included in the collective bargaining agreement and must not
put the employer in a position of deficit financing. Ind. Code § 20-29-6-18(b).
The Board’s decision “may not impose terms beyond those proposed by the
parties in their last, best offers.” Id. The Board’s decision must be issued
within thirty days after receipt of the notice of appeal. Indiana Code § 20-29-6-
18(c).
B. Salary vs. Wages
[15] A salary is “[a]greed compensation for services—[especially] professional or
semiprofessional services—[usually] paid at regular intervals on a yearly basis,
as distinguished from an hourly basis.” BLACK’S LAW DICTIONARY 1537 (10th
Ed. 2014). A wage is “[p]ayment for labor or services, [usually] based on time
worked or quantity produced; [specifically], compensation of an employee
based on time worked or output of production.” B LACK’S LAW DICTIONARY
1811 (10th Ed. 2014). “Wages include every form of remuneration payable for a
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given period to an individual for personal services, including salaries,
commissions, vacation pay, bonuses, and the reasonable value of board,
lodging, payments in kind, tips, and any similar advantage received from the
employer.” BLACK’S LAW DICTIONARY 1811 (10th Ed. 2014). Indiana Code
section 20-28-6-4(b) specifically provides that “[s]alary and wages include the
amount of pay increases available to employees under the salary scale adopted
under [Indiana Code section] 20-28-9-1.5, but do not include the teacher
evaluation procedures and criteria, or any components of the teacher evaluation
plan, rubric, or tool.”
[16] Under both Federal and Indiana law, a teacher is not entitled to receive
overtime. Specifically, Section 207 of the Fair Labor Standards Act (“the Act”)
provides that employees shall receive overtime compensation for hours worked
in excess of forty hours per week. 29 U.S.C. § 207. However, the Act exempts
certain employees from this requirement, including teachers employed in
elementary or secondary schools. 29 U.S.C. § 213. “Exemptions from the Act
are defined by regulations promulgated by the Department of Labor.” Osler
Inst., Inc. v. Inglert, 558 N.E.2d 901, 903 (Ind. Ct. App. 1990). Although the
statutory exemptions are to be narrowly construed, “[t]he regulations are
entitled to great weight and have been held to carry the full force of law.” Id.
Further, Indiana Code section 20-29-6-3 provides that “[i]t is unlawful for a
school employer to enter into any agreement that would place the employer in a
position of deficit financing due to a reduction in the employer’s actual general
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fund revenue or an increase in the employer’s expenditures when the
expenditures exceed the employer’s current year actual general fund revenue.”
[17] While we recognize that teachers are not entitled to receive overtime
compensation for performing their “normal” teaching duties, i.e., duties that are
completed as part of one’s direct teaching function, we further recognize that a
school corporation may require its teachers to undertake, or a teacher may
agree to undertake, certain duties beyond a teacher’s “normal” teaching duties.
Specifically, a school corporation may require its teachers to perform certain
ancillary duties, such as professional development and training or attending
conferences. In addition, teachers may agree to take on certain co-curricular
responsibilities, such as coaching athletic teams or sponsoring an academic or
extracurricular club. It is undisputed that teachers may negotiate for additional
wages for responsibilities associated with co-curricular duties that are
voluntarily assumed by a teacher.4 In the same vein, we interpret the above-
discussed law to allow that teachers could potentially receive additional wages
for ancillary duties.
4
See Article III of the School Corporation’s LBO which sets forth the pay schedule for certain co-
curricular responsibilities.
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[18] Stated differently, we interpret the law to provide that although the law does
not allow for the receipt of overtime compensation by teachers related to their
direct teaching functions, teachers are not necessarily excluded from receiving
additional wages for required or agreed upon ancillary duties. Notably, counsel
for the Board conceded during oral argument that it is possible under the
relevant statutory authority for a teacher to earn wages in addition to the
teacher’s salary and that an agreed-upon salary for direct teaching functions
does not exclude wages for other functions completed by the individual teacher.
As such, we conclude that teachers may negotiate with their employers for the
receipt of additional wages for these ancillary duties. In reaching this
conclusion, however, we do not mean to say that a school corporation must
compensate teachers for the ancillary duties, but only that the law allows that
teachers may negotiate with their employers for additional compensation for
said ancillary duties.5
5
Further, as our conclusion relates only to those ancillary duties that are required by the school
corporation, any award of additional wages would not put a school corporation in a position of deficit
spending as the school corporation controls the number of ancillary duties it requires of its teachers and
should therefore be able to budget accordingly.
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C. The Instant Matter
[19] Again, here, the Association’s proffered version of the provision at issue reads
as follows:
A. (With the understanding that the established contractual
teacher work day is seven hours and thirty minutes), the [School
Corporation] shall have the right to require a total of fifteen (15) hours
after school activities per semester for each full-time teacher, without
additional compensation.
B. The compensation for each hour in excess of the fifteen (15)
hours shall be based on the following rate:
Thirty Four (34) dollars per hour.
Appellant’s App. p. 80. During oral argument, counsel for the Association
clarified that the Association’s proffered provision represented an attempt to
bargain for additional wages for ancillary duties which the School Corporation
required of its teachers and was not a request for overtime compensation for
duties relating to teachers’ direct teaching functions.
[20] On remand, the Board should review the parties’ proffered LBO’s taking into
consideration our conclusion that the parties may negotiate for additional
wages for required ancillary duties, i.e., duties that are required by the School
Corporation but are not considered to be direct teaching functions. We note,
however, that in issuing this opinion, we do not mean to dictate any particular
outcome to the Board. Our opinion merely sets forth the legal parameters
under which the Board should consider the parties’ LBOs. The determination
of which LBO to adopt as the parties’ contract is within the discretion of the
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Board so long as the Board’s decision is made in accordance with the legal
parameters set herein.
[21] The matter is remanded to the Board for further proceedings consistent with
this opinion.
Najam, J., and Robb, J., concur.
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