JAY CLASSROOM TEACHERS ASSOCIATION, Appellant-Defendant, v. JAY SCHOOL CORPORATION and Indiana Education Employment Relation Board, Appellees-Plaintiffs.
No. 49A05-1412-PL-0586
Court of Appeals of Indiana.
Nov. 13, 2015.
1219
Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Indiana Education Employment Relations Board.
Mark D. Gerth, Marcia A. Mahony, Kightlinger & Gray, LLP, Indianapolis, IN, Attorneys for Appellee Jay School Corporation.
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.
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.
[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 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
(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 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.
[4] The Association appealed the fact-finder‘s recommended order, and the Board held a public hearing, after which the Board issued an order in January 2014. See
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.
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.
[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 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
[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 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. 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.
[15] Decisions on petitions for review of agency action are appealable in accordance with the rules governing civil appeals from the courts.
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 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 workday is 7.5 hours, it may be extended without additional pay for a number of after-school activities, including parent/teacher conferences and extracurricular 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 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
[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 during the normal workday. 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
[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 of 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,
School employees may:
(1) form, join, or assist school employee organizations;
(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 . . . .
[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 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
[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
[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 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.