from the Marion County Superior Court. The Honorable Theodore
M. Sosin, Judge. Trial Court Cause No. 49D02-1402-PL-003406.
FOR APPELLANT: Eric M. Hylton, Laura S. Reed, Riley Bennett &
Egloff, LLP, Indianapolis, IN.
FOR APPELLEE, INDIANA EDUCATION EMPLOYMENT RELATIONS BOARD:
Gregory F. Zoeller, Attorney General of Indiana; Kyle Hunter,
Deputy Attorney General, Indianapolis, Indiana.
FOR APPELLEE, JAY SCHOOL CORPORATION: Mark D. Gerth, Marcia
A. Mahony, Kightlinger & Gray, LLP, Indianapolis, Indiana.
Chief Judge. Robb, J., and Barnes, J., concur.
Vaidik, Chief Judge.
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.
and Procedural History
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.
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 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. These four factors are as follows:
(1) Past memoranda of agreements and contracts between the
(2) Comparisons of wages and hours of the employees involved
with wages of other employees working for other public
agencies 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.
§ 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.
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
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
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.
App. p. 212, 246.
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.
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 ...