                                                                      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



Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015              Page 1 of 21
      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.




      Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 2 of 21
                            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

      Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 3 of 21
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.




Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015                         Page 4 of 21
              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

      Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 5 of 21
              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.




      Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 6 of 21
[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

      Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 7 of 21
       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



       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 8 of 21
       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.

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 9 of 21
       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


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 10 of 21
       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




       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 11 of 21
       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.

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015                      Page 12 of 21
       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.

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015                       Page 13 of 21
       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).



       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015                        Page 14 of 21
       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


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 15 of 21
       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’




       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 16 of 21
       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;

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 17 of 21
                        (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

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 18 of 21
       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


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-0586 | November 13, 2015   Page 19 of 21
       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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