dissenting
The Marion Community Schools Board of Trustees correctly identifies the threshold issue in this case, ie., may individual teachers sue their school employer for breach of contract, based upon the enforcement of a contractual provision that was bargained for under CEEBA? I believe that the trial court was correct in determining that.it lacked subject matter jurisdiction because the teachers failed to exhaust their administrative remedies, and I therefore respectfully dissent from the majority’s conclusion to the contrary.
By statute, teachers have the right to form or join teachers’ unions, which in turn may be designated as the teachers’ exclusive representative in collective bargaining with school employers for the purpose of establishing, maintaining, or improving salaries, wages, hours, salary and wage-related fringe benefits. Ind.Code Ann. § 20-7.5-1-6 (West 1994); IC § 20-7.5-1-10. Such occurred here. In 1998, the Association negotiated a Master Contract with the Schools that included a revision of the previous Master Contract with respect to early retirement benefits. The individual teachers who comprise the appellants in this action filed a complaint against the School Board concerning the School Board’s decision to implement the early retirement provision contained in the 1998 Master Contract, rather than the applicable provision in the earlier contract.
In my view, in order to succeed in this action, the appellants must first show that the Association breached its duty of fair representation in approving the revised early retirement provision in the 1998 Master Contract. See Thomas v. LTV Corp., 39 F.3d 611 (5th Cir.1994) (breach of union’s duty of fair representation is an “indispensable predicate” to an employee’s direct action against his or her employer under the National Labor Relations Act).1 Such would constitute an action for unfair labor practices. See IC § 20-7.5-l-7(b). Under IC § 20-7.5-1-11, parties alleging unfair labor practices must first file such complaints before the Indiana Education Employees Relation Board. See Evansville-Vanderburgh School Corp. v. Roberts, 464 N.E.2d 1315 (Ind.Ct.App.1984). The failure to first seek a remedy before the IEERB divests the Grant Circuit Court of jurisdiction in the instant action. Id.
Finally, I note that IC § 20-7.5-l-7(c) provides specifically that school employers or school employee organizations may “bring suit for specific performance and/or breach of performance of a collective bargaining contract in any court having jurisdiction thereof.” School employees are conspicuously omitted from the group that may bring individual actions in state courts. This omission is significant to me, and indicates that, until they have exhausted the prescribed administrative remedies, the appellants may not sue the school individually concerning the implementation of a provision that was the product of collective bargaining between the Association and the School Board.
I would affirm the trial court.
. I note in this regard that the appellants alleged in their complaint that the Association "breachfed] ... the duty of fair representation,” which "is a violation of Ind.Code § 20-7.5-1-1 et seq.” Record at 89.