Nov 13 2015, 10:40 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Eric M. Hylton INDIANA EDUCATION
Laura S. Reed EMPLOYMENT RELATIONS
Riley Bennett & Egloff, LLP BOARD
Indianapolis, IN 46204
Gregory F. Zoeller
Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
JAY SCHOOL CORPORATION
Mark D. Gerth
Marcia A. Mahony
Kightlinger & Gray, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jay Classroom Teachers November 13, 2015
Association, Court of Appeals Case No.
Appellant-Defendant, 49A05-1412-PL-0586
Appeal from the Marion County
v. Superior Court
The Honorable Theodore M.
Jay School Corporation and Sosin, Judge
Indiana Education Employment Trial Court Cause No.
Relation Board, 49D02-1402-PL-003406
Appellees-Plaintiffs
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Vaidik, Chief Judge.
Case Summary
[1] The Jay Classroom Teachers Association (“the Association”) appeals from the
trial court’s determination that the Association did not meet its burden to
overturn the order of the Indiana Education Employment Relations Board (“the
Board”) adopting, in part, the Last Best Offer (“LBO”) of the Jay School
Corporation (“the School”), after the parties attempted to negotiate a Collective
Bargaining Agreement for 2013-14, but reached an impasse. We find that
under both statutory law and Nettle Creek a teacher can receive additional
compensation for ancillary duties, and that covering another teacher’s class
during the normal workday can be a compensable ancillary duty outside the
scope of normal teaching duties—where both parties agreed to the same
additional-compensation provision and included it in their respective LBOs.
We conclude, therefore, that it was reversible error for this provision to have
been stricken by the Board from the School’s LBO. Further, because the
Association has the statutory right to bargain to establish salaries, we also
conclude that the Board erred in finding that the provision giving the
Superintendent the authority to establish the salaries of teachers hired after the
start of the school year did not violate Indiana law. Accordingly, we reverse the
trial court’s affirmance of the Board’s order and remand to the Board.
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Facts and Procedural History
[2] The citizens of Indiana have a fundamental interest in the development of
harmonious and cooperative relationships between school corporations and
their certified employees. Ind. Code § 20-29-1-1(1). Recognition of the right of
school employees to organize and acceptance of the principle and procedure of
collective bargaining between school employers and school employee
organizations can alleviate various forms of strife and unrest. I.C. § 20-29-1-
1(2). The statutory scheme governing the collective bargaining process between
school corporations and teachers in Indiana, Indiana Code Article 20-29, was
significantly amended in 2011. These 2011 amendments brought about a
number of significant changes, including a new method for computing teacher
salaries. Also the amendments clarified the statutory rights and responsibilities
of both school employees and employers. See Ind. Code § 20-29-4-1 (providing
in relevant part that “[s]chool employees may . . . participate in collective
bargaining with school employers through representatives of their own
choosing . . . to establish, maintain, or improve salaries . . . .”); Ind. Code § 20-
29-4-3 (setting forth a non-exhaustive list of the “operations and activities of the
school corporation” that school employers have the “responsibility and
authority to manage and direct on behalf of the public[.]”) The parties disagree
as to the import of these statutory changes.
[3] In the case before us, the Jay Classroom Teachers Association (“the
Association”) and the Jay School Corporation (“the School”) reached an
impasse in their attempt to negotiate a Collective Bargaining Agreement for
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2013-14. Following mediation, which was unsuccessful, the parties each
submitted a Last Best Offer (“LBO”) to be presented at a fact-finding hearing.
See Ind. Code § 20-29-6-13 (providing that if an impasse is declared at any time
at least sixty days following the beginning of formal collective bargaining, a
mediator shall be appointed; the mediation must result in either an agreement
between the parties or each party’s LBO). The Indiana Education Employment
Relations Board (“the Board”) appointed a factfinder, and a fact-finding hearing
was held on November 5, 2013. See Ind. Code § 20-29-8-7 (setting forth the
details of the factfinder’s investigation, hearing, findings, and
recommendations). According to Section 20-29-6-15.1—added as part of the
2011 legislative overhaul to Article 20-29—the factfinder must select one party’s
LBO as the contract terms, considering the four factors set forth in Section 20-
29-8-8. See Ind. Code § 20-29-6-15.1.1 These four factors are as follows:
(1) Past memoranda of agreements and contracts between the
parties.
(2) Comparisons of wages and hours of the employees involved
with wages of other employees working for other public agencies
1
According to Section 20-29-6-15.1, the factfinder’s order must be
restricted to only those items permitted to be bargained and included in the collective bargaining
agreement under section 4 of this chapter and must not put the employer in a position of deficit
financing (as defined in IC 20-29-2-6). The factfinder’s order may not impose terms beyond
those proposed by the parties in their last, best offers.
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and private concerns doing comparable work, giving
consideration to factors peculiar to the school corporation.
(3) The public interest.
(4) The financial impact on the school corporation and whether
any settlement will cause the school corporation to engage in
deficit financing as described in IC 20-29-6-3.
I.C. § 20-29-8-8. In this case, following the hearing, the Board’s factfinder
issued his report and order recommending that the School’s LBO be adopted as
the 2013-14 Master Contract.
[4] The Association appealed the factfinder’s recommended order, and the Board
held a public hearing, after which the Board issued an order in January 2014.
See Ind. Code § 20-29-6-18(b) (providing that either party may appeal the
factfinder’s decision to the Board; 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). In its order, the Board affirmed and accepted the School’s LBO as
the Collective Bargaining Agreement, but ordered that a provision be stricken
that appeared in both the Association’s and the School’s LBOs, which
authorized additional compensation for teachers as follows:
Teachers volunteering to take a class will be compensated per
period or block. In the event no teacher volunteers, a teacher will
be assigned to cover the vacancy. The middle school teachers
will receive fifteen ($15.00) per period and the high school
teachers will receive twenty dollars ($20.00) per block. The
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elementary school teachers will receive fifteen ($15.00) dollars
per forty (40) minute block of time. Substitute priority will be
given to the elementary schools.
Appellant’s App. p. 212, 246.
[5] The Board struck this provision from the School’s ultimately adopted LBO,
explaining in its order that it was statutorily restricted to approving only
permissible provisions—regardless of whether the provision was in dispute—
and that the stricken provision at issue was apparently meant to apply in a
situation where a teacher volunteers or is assigned to cover a vacancy,
presumably for a class period when a substitute is unavailable; as such, the
Board found that the provision “would allow teachers to be double-paid for an
assignment of duties.” Id. at 70.
[6] Additionally, the Board, over the Association’s objection, determined that
another provision from the School’s LBO, allowing the Superintendent to
determine the pay of a teacher who was hired after the school year began, was a
permissible provision under the law. This provision reads as follows:
Teachers hired after the commencement of the 2013-14 school
year may be placed on any line of the scale as determined by the
Superintendent. After the initial placement of any teacher, the
teacher shall remain on the same line of the scale, regardless of
any other factors.
Appellant’s App. p. 246.
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[7] In explaining its reasoning in finding this provision permissible, the Board
determined that it is “the nature of a binding fact finding process” for one
party’s LBO to contain provisions to which the other party may not have
agreed. Id. at 67. The Board also stated that it did not read this provision to
prohibit a new hire from receiving an increase after the contract term. As such,
the compensation model in the School’s LBO was found to be permissible.
[8] In February 2014, following the Board’s decision, the Association filed a
verified petition for judicial review requesting the trial court to set aside the
Board’s order and remand with instructions to the Board to adopt the
Association’s LBO instead. Then the Association filed a motion for summary
judgment. The School and the Board filed their responses to the Association’s
motions, and the School filed a cross-motion for summary judgment.
[9] In November 2014, the trial court affirmed the Board’s decision, finding that
the School’s LBO was chosen largely due to financial difficulties of the School
and because the School’s LBO was the better choice when evaluated according
to the four statutory factors listed in Section 20-29-8-8. The trial court noted
that this was a new statute which substantially changed teacher collective
bargaining and, as the parties did not have the benefit of statutory interpretation
to guide their decisions on what to include or exclude, it is “entirely likely that
both parties’ LBOs might include impermissible items”—and indeed, this is
“precisely what occurred.” Id. at 14. The trial court further determined that “a
logical interpretation” of the statute was that an LBO cannot be rejected
because of the presence of an impermissible item but that the fact finder “must
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choose the LBO that is in the overall best interest of the parties and the public
pursuant to the [statutory] factors, and delete terms (if any) which are not
permissible.” Id. at 15 (internal citation omitted).
[10] With regard to the provision authorizing additional compensation for teaching
duties performed during the school day, the trial court agreed that teachers
cannot receive payment above their salaries for teaching duties and that this
provision allowed teachers to be double paid for their assigned duties.
[11] As to the provision allowing the Superintendent to determine a new teacher’s
starting salary mid-term, the trial court rejected the Association’s argument that
this provision in the School’s LBO unlawfully restricted bargaining. Instead the
trial court concluded that “[o]nce the parties enter mandatory factfinding, they
have lost the ability to bargain those terms.” Id. at 19. Furthermore it was not
unreasonable for the Superintendent to have the authority—whether bargained
or as a result of the LBO process—“to hire qualified employees and have the
flexibility to offer attractive compensation for the potential new hires in line
with available funds.” Id. at 20. The trial court also rejected the Association’s
argument that allowing the Superintendent to set teacher salaries after the
school year begins would prevent the Association from demonstrating that the
LBO could cause deficit financing. In response to the Association’s “highly
improbable” hypothesized scenario wherein “[t]he School Corporation could
get its LBO in place and then decide to hire 5 AP Calculus Teachers for
$150,000/each[,]” the trial court concluded that the deficit financing statute
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would make the teachers’ contracts void, if those contracts caused expenditures
to exceed actual revenue. Id. at 20, 21.
[12] Finally, the trial court found that the Association did not meet its burden to
overturn the Board’s order, finding that the Association did not argue that its
LBO was the best—or consistent with the statutory factors of Section 20-29-8-8.
Based on these findings and conclusions, the trial court concluded that the
Association had not met its burden to overturn the Board’s Order adopting the
School’s LBO, and denied the Association’s petition for judicial review.
[13] The Association now appeals, arguing that the trial court erred in denying its
petition, in concluding that the Board permissibly deleted the provision
pertaining to what the Association characterizes as “ancillary duties”
(compensating teachers who cover a class during the regular school day), and in
concluding that the provision in the School Corporation’s LBO authorizing the
Superintendent to determine salaries for teachers hired after the start of the
school year did not violate statutory law.
Discussion and Decision
A. Standard of Review
[14] The legislature has granted courts limited power to review the action of state
government agencies taken pursuant to the Administrative Orders and
Procedures Act (“AOPA”). See Ind. Educ. Employment Relations Bd. v. Nettle
Creek Classroom Teachers Ass’n, 26 N.E.3d 47, 53 (Ind. Ct. App. 2015); State Bd.
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of Registration for Prof’l Eng’rs v. Eberenz, 723 N.E.2d 422, 430 (Ind. 2000). Under
the AOPA, a court may only set aside agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(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.
Ind. Code § 4-21.5-5-14(d); Nettle Creek, 26 N.E.3d at 53-54. A review of an
administrative agency’s decision at the trial court level is not intended to be a
trial de novo; instead, the court analyzes the record as a whole to determine
whether the administrative findings are supported by substantial evidence. See
Whirlpool Corp. v. Vanderburgh Cnty.-City of Evansville Human Relations Comm’n,
875 N.E.2d 751, 759 (Ind. Ct. App. 2007). “The burden of demonstrating the
invalidity of agency action is on the party to the judicial review proceeding
asserting invalidity.” I.C. § 4-21.5-5-14(a).
[15] Decisions on petitions for review of agency action are appealable in accordance
with the rules governing civil appeals from the courts. Ind. Code § 4-21.5-5-16.
“When reviewing an administrative agency’s decision, appellate courts stand in
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the same position as the trial court.” Pendleton v. McCarty, 747 N.E.2d 56, 61
(Ind. Ct. App. 2001) (citing Amoco Oil Co. v. Comm’r of Labor, 726 N.E.2d 869,
872 (Ind. Ct. App. 2000)). This Court may not substitute its judgment on
factual matters for that of the agency, and we are bound by the agency’s
findings of fact if they are supported by substantial evidence. See Whirlpool, 875
N.E.2d at 759. Moreover, courts reviewing 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. 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 Co. v. Griffin, 730
N.E.2d 1251, 1257 (Ind. 2000); see also Hoosier Outdoor Advertising Corp. v. RBL
Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct. App. 2006), trans. denied.
B. Provision for Additional Wages for Covering Class
[16] The Association contends first that the Board erred in striking the provision
providing additional wages to teachers who volunteer or are assigned to cover a
class. Specifically, the Association argues that in light of this Court’s recent
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Nettle Creek opinion,2 the Board erred in striking the provision on the grounds
that teachers cannot be “double-paid for an assignment of duties.” See
Appellant’s App. p. 70; Appellant’s Br. p. 7.
[17] In Nettle Creek, the parties—Nettle Creek School Corporation (“the Nettle Creek
School”) and the Nettle Creek Classroom Teachers’ Association (“the Nettle
Creek Association”)—came to an impasse in their collective bargaining. After
mediation failed, both sides submitted LBOs to the Board; the disputed issue
was the Nettle Creek Association’s request for additional compensation for
required hours worked outside the normal seven-and-one-half-hour workday.
In particular, the Nettle Creek Association’s proffered version of this provision
in their LBO established that the Nettle Creek School had a right to require a
seven-and-one-half-hour workday and fifteen hours of after-school activities for
each full-time teacher, without additional compensation; hours worked beyond
that would be compensated at thirty-four dollars an hour. Nettle Creek, 26
N.E.3d at 50.
[18] The Nettle Creek School’s LBO, on the other hand, declared that teachers were
paid on a salary basis rather than an hourly basis and that while the normal
work day is 7.5 hours, it may be extended without additional pay for a number
2
The Association relies on the Nettle Creek opinion for the first time on appeal because the opinion was issued
in January 2015, whereas the trial court issued its order in November 2014. Indeed, as pointed out by the
Board, “Nettle Creek was the first case decided under the 2011 changes to teacher collective bargaining.”
Appellee Board’s Br. p. 10.
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of after-school activities, including parent/teacher conferences and extra-
curricular assignments. See id.
[19] Following a hearing, the factfinder recommended the adoption of the Nettle
Creek School’s LBO as the parties’ Collective Bargaining Agreement, and the
Nettle Creek Association appealed the factfinder’s order to the Board.
Ultimately the Board affirmed the factfinder’s recommendation, adopting the
Nettle Creek School’s LBO as the contract “except insofar as any references to
the hours of work . . . in the School Corporation’s [LBO] shall be omitted from
the contract.”3 Id. at 51.
[20] The Nettle Creek Association filed a verified petition for judicial review of the
Board’s decision in the trial court. The trial court reversed and remanded the
Board’s decision. On appeal, this Court initially set forth the distinction
between salary and wages4 and recognized that under both Federal and Indiana
law, teachers are not entitled to receive overtime for performing their “‘normal’
teaching duties, i.e., duties that are completed as part of one’s direct teaching
3
“Hours” was a permissible subject for collective bargaining prior to the 2011 amendments.
4
As stated in Nettle Creek:
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.” Black’s Law Dictionary 1811
(10th Ed. 2014). “Wages include every form of remuneration payable for a 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).
26 N.E.3d at 55.
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function.” Id. at 56. However, we found that the law does allow teachers to
negotiate with their employers for additional compensation (wages) for certain
agreed-upon or required duties—“ancillary duties”—beyond their normal
teaching duties.5 Id. Ancillary duties may include professional development
and training, conference attendance, or certain co-curricular responsibilities,
such as coaching athletic teams or sponsoring an academic or extracurricular
club.6 Id. at 56.
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.
Id. (emphasis added).
[21] In the case before us, the Association asserts that the duty or act covered by the
stricken provision—in which a teacher volunteers or is assigned to cover a class,
and receives additional compensation for doing so—falls outside of a teacher’s
“normal teaching duties,” and should be characterized as an “ancillary duty.”
5
In a footnote, we wrote that because our conclusion relates only to ancillary duties required by the school
corporation, any award of additional wages would not put a school corporation in a position of deficit
spending in violation of Indiana Code section 20-29-6-3, as “the school corporation controls the number of
ancillary duties it requires of its teachers and should therefore be able to budget accordingly.” Nettle Creek, 26
N.E.3d at 56 n.5.
6
Black’s Law Dictionary defines “ancillary” as “[s]upplementary; subordinate.” Black’s Law Dictionary 105
(10th Ed. 2014).
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See Appellant’s Br. p. 9. In light of Nettle Creek, their argument continues,
bargaining of wages for additional, ancillary duties is permissible; and indeed,
the Association and the School were clearly in agreement on this point as they
both included the same additional-compensation provision in their respective
LBOs. As such, the Association contends that the Board’s order striking the
provision in the School’s ultimately selected LBO was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law” under Indiana
Code section 4-21.5-5-14(d).
[22] The School argues, however, that “[t]he Association’s argument fails in this
case because the issue is the right of teachers to be compensated for teaching
duties performed during the school day” as opposed to ancillary duties, which
was the issue in Nettle Creek. Appellee School’s Br. p. 12. The School
continues: “Under the Court’s holding in Nettle Creek, a teacher may not be paid
double for teaching a class during the regular school day.” Id. at 13. This is, of
course, an extension of Nettle Creek, which explicitly addresses the distinction
between “normal” teaching duties (i.e., duties completed as part of one’s “direct
teaching function”) and duties beyond a teacher’s “normal” teaching duties, or
“ancillary duties.” See Nettle Creek, 26 N.E.3d at 56. So it is still an open
question whether ancillary duties can occur during the normal, contracted
teachers’ workday, or whether anything that occurs during the normal,
contracted workday is, by definition, considered part of normal teaching duties.
The Board urges this Court to adopt the following bright-line rule: “that
teachers may not bargain compensation, outside of salary, for any assignments
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during the normal work day.” Appellee’s Board’s Br. p. 5. Even if we are not
willing to adopt such a rule, the Board maintains that the additional-
compensation provision at issue in this case—which covered acts occurring
during the normal workday and also involved core teaching duties—was clearly
impermissible and thus properly struck from the School’s LBO.
[23] We disagree with the Board, and we reject the adoption of a bright-line, one-
size-fits-all rule for each school corporation; instead, we find that the question
of ancillary duties can be determined at the local level. Particularly where, as
here, both the Association and the School included the very same additional-
compensation provision in their respective LBOs. This shows a clear
agreement and understanding between the parties that covering another
teacher’s class during the normal workday does fall outside the scope of normal
teaching duties—at least within this school district—and thus authorizing
additional compensation for this duty does not constitute “double payment.”
We cannot say this is unreasonable since teachers who volunteer or are
assigned to cover a vacancy are generally sacrificing their preparation time in
order to do so. Also, this result is consistent with—though not compelled by—
Nettle Creek. In sum, we find that the provision was not prohibited by statute or
otherwise impermissible. See I.C. § 20-29-6-18(b) (providing that the Board’s
decision must be restricted to only those items permitted to be bargained and
included in the collective bargaining agreement). In light of the above, we find
that compensable “ancillary duties” can occur during the normal teachers’
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workday—where both parties agree to them and where they are not otherwise
impermissible.
C. Provision Authorizing Superintendent to Set New
Hire Salary
[24] Next, the Association challenges the provision, which the Board left standing in
the School’s LBO, authorizing the Superintendent to determine the salary of
teachers hired after the school year begins. This provision reads as follows:
Teachers hired after the commencement of the 2013-14 school
year may be placed on any line of the scale as determined by the
Superintendent. After the initial placement of any teacher, the
teacher shall remain on the same line on the scale, regardless of
any other factors.
Appellant’s App. p. 246. The Board, in finding this provision permissible, read
it to say that these teachers’ salaries will be set for the year (i.e., the teachers
will not be eligible for any salary increases for the duration of the contract), but
this provision does not prohibit these teachers from being eligible for receiving
an increase after the contract term. See Appellant’s App. p. 67.
[25] The Association now contends that this provision conflicts with the statutory
right of school employees to collectively bargain to establish salaries.
Specifically, Indiana Code section 20-29-4-1 provides that
School employees may:
(1) form, join, or assist school employee organizations;
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(2) participate in collective bargaining with school
employers through representatives of their own choosing;
and
(3) engage in other activities, individually or in concert;
to establish, maintain, or improve salaries, wages, salary and wage
related fringe benefits, and other matters set forth in IC 20-29-6-4
and IC 20-29-6-5.
[26] (Emphasis added). And “[a]ny contract may not include provisions that
conflict with . . . employee rights set forth in IC 20-29-4-1 . . . .” Ind. Code §
20-29-6-2(a)(2). Thus the Association argues that this LBO provision runs afoul
of the statutory prohibition on provisions that conflict with the Association’s
right to bargain to establish salaries, given that this provision authorizes the
Superintendent to unilaterally set the salaries of certain teachers, without the
salaries being bargained.
[27] The School argues, however, that the provision does not give the
Superintendent unfettered discretion in setting the salaries of teachers hired
after the start of the school year because the Superintendent must set the newly
hired teachers’ salaries in accordance with the salary scale contained in the
collective bargaining agreement. The Board contends that “[w]ith the 2011
amendments, the legislature moved the establishment of teacher salaries away
from the old system of charts with teacher experience on one axis and teacher
education on the other[,]” and “[t]his shift, away from a rigid salary
determination . . . supports the Board’s conclusion that the provision giving the
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superintendent the discretion to place a new teacher’s salary at any point on the
salary scale is in accordance with law.” Appellee Board’s Br. p. 16-17.
Essentially the Board asserts that the 2011 amendments gave the School and the
Superintendent in particular greater powers and more flexibility, and this
provision is in line with that increased power and flexibility. The Board further
alleges that the Superintendent needs the authority to unilaterally determine
salaries because parties are generally not allowed to bargain during the school
year.
[28] We find that this provision unambiguously, impermissibly conflicts with the
Association’s statutory right to collectively bargain to establish salaries under
Section 20-29-4-1 and thus violates Section 20-29-6-2(a)(2). See I.C. § 20-29-4-1
(“School employees may . . . participate in collective bargaining with school
employers through representatives of their own choosing . . . to establish,
maintain, or improve salaries, wages, salary and wage related fringe benefits . . .
.”); I.C. § 20-29-6-2(a)(2) (“Any contract may not include provisions that
conflict with . . . school employee rights set forth in IC 20-29-4-1 . . . .”). And
we find the School’s and the Board’s arguments in support of this provision
unavailing. First, we are unpersuaded by the argument that the Superintendent
does not have unfettered discretion because the salaries must still be in
accordance with the salary scales contained in the collective bargaining
agreement, or that there is nothing to prevent the teachers from receiving a
salary increase or decrease, as the case may be, after the contract term. While it
may be true that this provision does not prohibit these teachers from being
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eligible for decreases or increases after the contract term, any salary set by the
Superintendent is nonetheless an unbargained, unilateral decision that will have
repercussions beyond the duration of the contract because it will always be that
teacher’s starting salary; in other words, although the teacher may receive
increases thereafter, they will always be increases from that initial salary
determined by the Superintendent. And, realistically, we find it implausible to
imagine a teacher’s salary being decreased once that teacher is hired at a higher
salary.
[29] The Board argues that the 2011 amendments—the shift in how salaries are
established and the change in the rights and responsibilities of both the school
employees and employers—gave the School and the Superintendent greater
powers and more flexibility. The Board’s argument, however, ignores Section
20-29-4-1(2), which confers on school employees the right to “participate in
collective bargaining with school employers through representatives of their
own choosing . . . to establish, maintain, or improve salaries . . . .”—a right that
cannot be ignored in light of Section 20-29-6-2(a)(2), which prohibits contracts
containing provisions that conflict with statutorily conferred school-employee
rights.
[30] Finally, as to the Board’s contention that the Superintendent needs the power to
determine salaries because parties are generally not allowed to bargain during
the school year, we note that at oral argument on this case, the Association
proposed a simple solution to this alleged problem: a “memorandum of
understanding” entered into by the Association and the School, which would
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preserve the statutory right of the parties to bargain to establish the salaries of
teachers hired after the start of the school year—even those hired after the end
of the formal collective bargaining period.7
[31] In conclusion, we find that the additional-compensation provision was not
impermissible and should not have been stricken by the Board, whereas the
Superintendent provision was impermissible and should have been stricken by
the Board. Accordingly we reverse the trial court’s decision affirming the
Board’s order, and remand to the Board for further proceedings consistent with
this opinion.8
Reversed and remanded.
Robb, J., and Barnes, J., concur.
7
Counsel for the Association also noted at oral argument that it is not at all implausible that the beginning of
the school year could occur before the end of the formal bargaining period. See Ind. Code § 20-29-6-12
(providing that formal collective bargaining shall not begin before August 1); I.C. § 20-29-6-13(a) (“If, at any
time after at least sixty (60) days following the beginning of formal bargaining collectively between the
parties, an impasse is declared, the board shall appoint a mediator . . . .”).
8
As a final note, we observe that the Association argued to the Board and to the trial court that an LBO
containing an impermissible item must be rejected in full. The Board rejected this argument, concluding that
an LBO containing impermissible items need not be rejected if the LBO was the best choice under the four
statutory factors that guide selection of LBOs, provided that any impermissible items were deleted from the
LBO. Appellant’s App. p. 14. The trial court agreed. See id. at 15. On appeal the Association does not
argue that an LBO containing an impermissible provision must be rejected wholesale. Rather the
Association only asks in its prayer for relief that the School’s LBO be rejected in its entirety. Because the
Association did not develop a cogent argument, we consider it waived. See Ind. Appellate Rule 46(A)(8)(a).
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