                                                                   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.



      Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015   Page 2 of 18
                                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:



      Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015          Page 4 of 18
        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.


Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015          Page 5 of 18
      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.

      Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015        Page 6 of 18
                                              ****
        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:

Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015              Page 7 of 18
                (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.


Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015         Page 8 of 18
      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.

      Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015                        Page 9 of 18
                      (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.

       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015        Page 10 of 18
       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’

       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015    Page 11 of 18
       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).

       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015    Page 12 of 18
                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

       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015        Page 13 of 18
       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




       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015   Page 14 of 18
       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.



       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015                         Page 15 of 18
[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.

       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015                         Page 16 of 18
                                         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



       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015       Page 17 of 18
       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.




       Court of Appeals of Indiana | Opinion 49A02-1402-PL-78 | January 28, 2015   Page 18 of 18
