                                                                                           FILED
                                                                                      Aug 12 2020, 9:12 am

                                                                                           CLERK
                                                                                      Indiana Supreme Court
                                                                                         Court of Appeals
                                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE:
Eric M. Hylton                                             INDIANA EDUCATION
Laura S. Reed                                              EMPLOYMENT RELATIONS
Indianapolis, Indiana                                      BOARD
                                                           Curtis T. Hill, Jr.
                                                           Attorney General of Indiana
                                                           Natalie F. Weiss
                                                           Aaron T. Craft
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana
                                                           WEST CLARK COMMUNITY
                                                           SCHOOLS
                                                           Jonathan L. Mayes
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020                      Page 1 of 31
      Culver Community Teachers                                  August 12, 2020
      Association, Decatur County                                Court of Appeals Case No.
      Education Association, Smith                               19A-PL-2989
      Green Community Schools                                    Appeal from the Marion Superior
      Classroom Teachers Association,                            Court
      and West Clark Teachers                                    The Honorable Heather Welch,
      Association,                                               Judge
      Appellant-Petitioners,                                     Trial Court Cause No.
                                                                 49D01-1810-PL-41794
              v.

      Indiana Education Employment
      Relations Board,
      Appellee-Respondent,

      and

      West Clark Community Schools,
      Intervenor.



      Tavitas, Judge.


                                               Case Summary
[1]   The Culver Community Teachers Association, Decatur County Education

      Association, Smith-Green Community Schools Classroom Teachers

      Association, and West Clark Teachers Association, (collectively “Teachers

      Associations”), appeal from the trial court’s denial of their joint verified petition

      for judicial review of the Indiana Education Employment Relations Board’s

      (“IEERB”) final decisions regarding their respective collective bargaining

      agreements (“CBAs”). We reverse and remand.


      Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020                    Page 2 of 31
                                                        Issue
[2]   The sole issue on appeal is whether the trial court properly denied judicial

      review of the IEERB’s final decisions that the CBAs negotiated and ratified by

      the Teachers Associations and their respective school employers each included

      provisions that were contrary to law.


                                                        Facts
[3]   For the 2017-2018 academic school year, the Teachers Associations’ respective

      school corporations (the “School Employers”) and the exclusive

      representatives 1 for the Teachers Associations negotiated and ratified CBAs.

      Pursuant to Indiana Code Section 20-29-6-6.1, the CBAs were submitted for

      review to an IEERB-appointed individual (“compliance officer”) to ensure

      compliance with Indiana law.


[4]   On May 30, 2018, the IEERB compliance officer issued compliance reports and

      recommendations regarding the four CBAs and found that each CBA included

      a provision that was non-compliant with Indiana Code Section 20-29-6-4,

      which enumerates the mandatory subjects of collective bargaining for teachers.

      See infra.




      1
        An “exclusive representative” is “the school employee organization which has been . . . recognized by a
      school employer as the exclusive representative of the employees” for purposes of collective bargaining. Ind.
      Code § 20-7.5-1-2(l).


      Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020                              Page 3 of 31
[5]   The Teachers Associations appealed to the IEERB. On September 18, 2018,

      the IEERB entered individual final reports as to the Teachers Associations’

      respective CBAs. In each instance, as detailed below, the IEERB affirmed the

      compliance officer’s finding of statutory non-compliance.


                                                  I. Culver CBA

[6]   The IEERB compliance officer found the following provision from the Culver

      CBA to be non-compliant:


                                                    Article III


                                                 Compensation


                                                       *****


              J. Ancillary Duties. Ancillary Duties are defined as meetings,
              professional development trainings, and other school activities
              outside the contractual day or Contractual year. Ancillary
              Duties do not include lesson planning and the grading of student
              work. In a given school year teachers shall be required to
              perform a maximum of ten (10) hours of Ancillary Duties at a
              rate of $0 per hours [sic].


      Teachers Associations’ App. Vol. II p. 207. In affirming the finding of statutory

      noncompliance, the IEERB found that the provision above did not comport

      with Indiana law because the “parties may not bargain a limitation on the

      assignment of an ancillary duty.” Id. at 24. In its final report, the IEERB

      adopted the following provision from the compliance officer’s report:



      Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020     Page 4 of 31
              Although the parties may bargain wages for an ancillary duty,
              they may not bargain what constitutes an ancillary duty. The
              parties have included a definition of “ancillary duties” specifying
              what does and does not constitute an ancillary duty. What
              constitutes an ancillary duty is not a bargainable subject pursuant
              to Indiana Code § 20-29-6-4 and 20-29-6-4.5 and, therefore, is not
              compliant.


      Id. at 39-40.


                                                II. Decatur CBA

[7]   The IEERB compliance officer found the following provision from the Decatur

      CBA to be non-compliant:


                                                    Article IV


                                              Salary Regulations


              Chapter 1. Salary Requirements


              A. The Teacher’s Compensation Model for the 2017-18 school
              year is set forth in Appendix ‘A’, which is attached hereto and
              incorporated herein along with the salary schedules referred to
              therein. The attached salary schedule reflects the salary increases
              that were bargained for the 2017-2018 term as compared to the
              2016 2017 schedule.


                                                     *****


               L. A teacher supervising Friday Night Detention shall be paid a
              flat rate of Seventy five Dollars ($75.00) for 12 students or less.



      Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020           Page 5 of 31
      Teachers Associations’ App. Vol. III, p. 32 (quotation omitted). In affirming

      the finding of statutory noncompliance, the IEERB stated: “[the] parties may

      not bargain a limitation on the assignment of an ancillary duty.” Teachers

      Associations’ App. Vol. II p. 24. In its final report, the IEERB adopted the

      following provision from the compliance officer’s report:


              Although the parties may bargain wages for an ancillary duty,
              they may not bargain any parameters, restrictions, or limitations
              on the school’s assignment of an ancillary duty. The parties have
              bargained compensation for supervising Friday night detention
              “for 12 students or less.” The conditions of the assignment, i.e.
              for 12 students or less, is not a bargainable subject pursuant to
              Indiana Code § 20-29-6-4 and 20-29-6-4.5 and, therefore, is not
              compliant.


      Id. at 34-35.


                                            III. Smith-Green CBA

[8]   The IEERB compliance officer found the following provision from the Smith-

      Green CBA to be non-compliant:


                                                     Article III


                                          Salary and Compensation


                                                      *****


              9. Every effort shall be made by the corporation to provide a
              substitute teacher when a teacher is absent. In the event a
              substitute is not available for a period of time, upon mutual
              agreement, a teacher may be requested to supervise a class’s

      Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020     Page 6 of 31
        instructional time during his/her preparation period. The
        teacher shall be compensated with one additional leave day for:


                 • Each 6 periods in CJSHS
                 • Each 5 hours in CES

        The teacher shall be compensated with one-half of an additional
        leave day for:


                 • Each 3 periods in CJSHS
                 • Each 2.5 hours in CES

        Teachers are responsible for notifying the attendance secretary in
        CJSHS or the administrative assistant in CES for any instances of
        preparation period supervision.


Teachers Associations’ App. Vol. III, p. 95. In affirming the finding of

statutory noncompliance, the IEERB found that the provision did not comport

with Indiana law because the “parties may not bargain a limitation on the

assignment of an ancillary duty.” Teachers Associations’ App. Vol. II p. 24. In

its final report, the IEERB adopted the following provision from the compliance

officer’s report:


        The parties have impermissibly bargained restrictions on the
        school’s assignment of a teacher to serve as a substitute for
        another teacher. Although the parties may bargain wages for an
        ancillary duty, they may not bargain any parameters, restrictions,
        or limitations on the school’s assignment of the ancillary duty.


        The parties have bargained that “mutual agreement” of the
        teacher is required before the school can assign the teacher to
        serve as a substitute for another teacher. This is not a

Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020        Page 7 of 31
              bargainable subject pursuant to Indiana Code § 20-29-6-4 and 20-
              29-6-4.5 and, therefore, is not compliant.


      Id. at 24-25.


                                             IV. West Clark CBA

[9]   The IEERB compliance officer found the following provision from the West

      Clark CBA to be non-compliant:


                                                APPENDIX E


                                          ANCILLARY DUTIES


                                                     *****


              Lead Teacher — If a teacher is asked to, and accepts
              responsibility for, writing lesson plans, grading assignments, and
              entering grades for these assignments in the absence of a certified
              teacher for a week or longer, the teacher will receive an
              additional four hours of pay per week. Rate of pay for this duty
              will be at row E, Career Level 1 or Career Level 2, depending on
              the teacher’s current Career Level placement.


      Teachers Associations’ App. Vol. III, p. 167. In affirming the compliance

      officer’s finding of noncompliance, the IEERB found that the “parties may not

      bargain a limitation on the assignment of an ancillary duty.” Teachers

      Associations’ App. Vol. II p. 24. In its final report, the IEERB adopted the

      following provision from the compliance officer’s report:




      Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020       Page 8 of 31
               Although the parties may bargain wages for an ancillary duty,
               they may not bargain any parameters, restrictions, or limitations
               on the school’s assignment of an ancillary duty. The parties have
               bargained that as a condition of the Lead Teacher ancillary duty,
               the teacher must agree to accept the duty (“if a teacher is asked
               to, and accepts responsibility for . . .”). The condition of
               accepting an assignment is not a bargainable subject pursuant to
               Indiana Code § 20-29-6-4 and 20-29-6-4.5 and, therefore, is not
               compliant.


               The Compliance Officer notes that, if the conditioned acceptance
               was not bargained, but is function [sic] of school policy, the
               parties may avoid a future finding of noncompliance by including
               a statement to that effect.


       Id. at 29-30.


[10]   On October 17, 2018, the Teachers Associations jointly filed a petition for

       judicial review of the IEERB’s final decisions affirming the compliance officers’

       findings of noncompliance. The IEERB filed its response on November 9,

       2018. The Teachers Associations, IEERB, and intervenor West Clark

       Community Schools tendered briefs to the trial court, which heard argument on

       September 25, 2019. On November 25, 2019, the trial court entered its order,

       containing findings of fact and conclusions thereon, providing in part as

       follows:


                                            FINDINGS OF FACT


                                                      *****




       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020     Page 9 of 31
        2. In [ ] four [final] decisions, IEERB affirmed that a certain
        provision in each of the [Teachers Associations’] collective
        bargaining agreements (“CBA”) was non-compliant with Indiana
        Code Section 20-29-6-4.


                                               *****


        7. Specifically, in each of these four final decisions, IEERB found
        that the school and exclusive representative impermissibly
        bargained for a definition of, or limitation on, what constitutes an
        ancillary duty, in violation of Indiana Code section 20-29-6-4,
        which permits bargaining only for salary, wages, and salary and
        wage related fringe benefits.


                                               *****


                                 CONCLUSIONS OF LAW


        12. According to Indiana Code section 20-29-6-1, [s]chool
        employers and school employees shall: (1) have the obligation
        and the right to bargain collectively the items set forth in section
        4 [IC 20-29-6-4]; (2) have the right and obligation to discuss any
        item set forth in section 7 [IC 20-29-6-7]; an[d] (3) enter into a
        contract embodying any of the matters listed in section 4 [IC 20-
        29-6-4] of this chapter on which they have bargained collectively.
        Ind. Code § 20-29-6-1.


                                               *****


        14. Pursuant to Indiana Code section 20-29-6-4, [a] school
        employer shall bargain collectively with the exclusive
        representative on the following: (1) salary, (2) wages, (3) salary
        and wage related fringe benefits, including accident, sickness,
        health, dental, vision, life, disability, retirement benefits, and

Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020          Page 10 of 31
        paid time off as permitted to be bargained under IC 20-28-9-11.
        Salary and wages include the amounts of pay increases available
        to employees under the compensation plan adopted under IC 20-
        28-9-1.5, but do not include the teacher evaluation procedures
        and criteria, any components of the teacher evaluation plan,
        rubric, or tool, or any performance stipend or addition to base
        salary based on a stipend to an individual teacher under IC 20-
        43-10-3.5. Ind. Code § 20-29-6-4.


        15. Also, according to Indiana Code section 20-29-6-4.5, [f]or a
        contract entered into after June 30, 2011, a school employer may
        not bargain collectively with the exclusive representative on the
        following: (1) the school calendar; (2) teacher dismissal
        procedures and criteria; (3) restructuring options available to a
        school employer under federal or state statutes, regulations, or
        rules because of the failure of the school corporation or a school
        to meet federal or state accountability standards; (4) the ability of
        a school employer to: contract, partner, or operate jointly with an
        educational entity that provides postsecondary credits to students
        of the school employer or dual credits from the school employer
        and the educational entity; or (5) any subject not expressly listed
        in section 4 [IC 20-29-6-4]. Ind. Code § 20-29-6-4.5.


        16. Furthermore, Indiana Code section 20-29-6-2 provides that,
        [a]ny contract may not include provisions that conflict with . . .
        section 4.5(a) [IC 20-29-6-4.5(a)]. Ind. Code § 20-29-6-2.


                 a. IEERB’s Interpretation of Ind. Code § 20-29-6-4


        17. IEERB argues that its interpretation of Ind. Code § 20-29-6-4
        was correct. IEERB specifically claims that parties to a CBA
        may not bargain the definition of an ancillary duty or other
        limitation because only schools have the authority to define or
        limit an ancillary duty. IEERB also claims that once the school


Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020          Page 11 of 31
        defines an ancillary duty, the parties may then bargain the wage
        for that particular ancillary duty.


        18. In support of its argument, IEERB cites to the Indiana Code
        to say that, Indiana law provides that only school[ ] [employer]
        have the authority to direct the work of teachers and maintain
        efficient school operations, Ind. Code § 20-29-4-3(1), (5), and a
        CBA may not contain any provision that interferes with the
        school employer’s rights, Ind. Code § 20-29-6-2(a)(3).


        19. IEERB contends that if the parties bargained the definition of
        an ancillary duty, or some other limitation on an ancillary duty,
        then they would be infringing on the school’s sole authority to
        direct the work and operations of the school. IEERB argues that
        the provisions challenged in these four cases show that the parties
        bargained limitations on what work teachers may or may not
        perform, which is, impermissible under Indiana law.


        20. IEERB claims that Petitioners provide little to no explanation
        as to how the language of this statute (Ind. Code § 20-29-6-4)
        supports their claim that the school and the representative may
        bargain for certain ancillary duties or limitations on ancillary
        duties; and instead, Petitioners rely on dicta in two cases to argue that
        this statute does not prohibit the parties from bargaining the definition of,
        or limitation on, an ancillary duty.


        21. The Court notes that the Petitioners rely heavily upon IEERB
        v. Nettle Creek Classroom Teachers Ass’n, 26 N.E.3d 47 (Ind. Ct.
        App. 2015) and Jay Classroom Teachers Ass’n v. Jay School Corp., 45
        N.E.3d 1217 (Ind. Ct. App. 2015) to support their arguments and
        interpretation of Ind. Code § 20-29-6-4.


                 i. Court Decisions on Bargaining Ancillary Duties



Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020                Page 12 of 31
                                               *****


        23. [In Nettle Creek, the] Indiana Court of Appeals held that
        although teachers are not entitled to receive overtime
        compensation for performing normal teaching duties, they may
        negotiate for additional wages for responsibilities associated with
        ancillary duties.


        24. In Jay Classroom Teachers Ass’n, the Indiana Court of Appeals
        held that “that compensable ‘ancillary duties’ can occur during
        the normal teachers’ workday—where both parties agree to them
        and where they are not otherwise impermissible.” The Indiana
        Supreme Court affirmed the Court of Appeals on the above issue.


        25. This Court finds that, while the Petitioners rely on these two
        cases in support of their arguments, Nettle Creek Classroom Teachers
        Ass’n addressed the question of whether teachers’ ancillary duties
        entitle them to additional compensation rather than whether Ind.
        Code § 20-29-6-4 provides teachers the ability to bargain with a
        school corporation as to what constitutes an ancillary duty. In
        Jay Classroom, the Court of Appeals held that the parties could
        bargain for additional compensation for ancillary duties during
        the normal teachers’ workday. This Court does not find that
        Nettle[ ] Creek or Jay Classroom held that the School Corporation
        and Teachers Association could bargain for what the ancillary
        duty is because “Indiana law provides that only schools have the
        authority to direct the work of teachers and maintain efficient
        school operations, Ind. Code § 20-29-4-3(1), (5), and a CBA may
        not contain any provision that interferes with the school
        employer’s rights.” Ind. Code § 20-29-6-2(a)(3). Thus, this Court
        finds that neither of these cases under Indiana law allows the
        bargaining of what an ancillary duty is.


        26. Based on this Court’s reading of the statute and supporting
        Indiana law, the Court finds that IEERB’s interpretation of Ind.

Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020       Page 13 of 31
               Code § 20-29-6-4 is reasonable, and thus this Court need not
               move forward with any other proposed interpretation. The Court
               holds that the IEERB’s four final decisions were not arbitrary
               and capricious, and therefore the Petitioners’ Petition for Judicial
               Review is DENIED.


       Teachers Associations’ App. Vol. II pp. 10, 12-20 (citations and quotations

       omitted) (emphasis added). The Teachers Associations now appeal.


                                                     Analysis
[11]   The Teachers Associations challenge the trial court’s denial of their petition for

       judicial review. Pursuant to the Indiana Administrative Order and Procedures

       Act, we may only set aside an agency action if “(1) [it is] 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). The party that seeks judicial review

       bears the burden to prove the agency action is invalid for one of the foregoing

       reasons. I.C. § 4-21.5-5-14(a).


[12]   When reviewing a challenge to an administrative agency’s decision, this Court

       will not try the facts de novo nor substitute its own judgment for that of the

       agency. Jay Classroom Teachers Ass’n v. Jay School Corp. (“Jay Classroom II”), 55

       N.E.3d 813 (Ind. 2016) (citations and quotations omitted). “Rather, we defer to




       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020        Page 14 of 31
       the agency’s findings if they are supported by substantial evidence.” Id. “On

       the other hand, we review an agency’s conclusions of law de novo.” Id.


[13]   Further, this Court “‘employs a deferential standard of review of the

       interpretation of a statute by an administrative agency charged with its

       enforcement in light of its expertise in the given area.’” Senter v. Foremost

       Fabricators, 137 N.E.3d 1027, 1031-32 (Ind. Ct. App. 2019).


               Although an agency’s interpretation of a statute presents a
               question of law entitled to de novo review, the agency’s
               interpretation is given “great weight.” In fact, “if the agency’s
               interpretation is reasonable, we stop our analysis and need not
               move forward with any other proposed interpretation.” This is
               true even if another party presents “an equally reasonable
               interpretation.”


       Jay Classroom II, 55 N.E.3d at 816 (citations omitted). We will only reverse the

       agency if it incorrectly interpreted the statute. Senter, 137 N.E.3d at 1032-33.


[14]   The Teachers Associations argue that the IEERB’s final decisions, finding that

       the parties to the respective CBAs impermissibly bargained what constitutes an

       ancillary duty, are “contrary to Indiana law, arbitrary and capricious and

       should be reversed.” Teachers Associations’ Br. p. 15. The Teachers

       Associations maintain that, pursuant to Indiana caselaw, negotiations for

       compensation for ancillary duties are encompassed within the mandatory

       collective bargaining topics for teachers.




       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020         Page 15 of 31
[15]   The IEERB counters that, although teachers associations may bargain wages for

       ancillary duties, teachers associations may not bargain as to what constitutes an

       ancillary duty. The IEERB argues that defining an ancillary duty is not among

       the mandatory bargaining topics enumerated under Indiana law, but, rather, is

       a matter to be left solely to the discretion of the school employer. See IEERB’s

       final report, Teachers Associations’ App. Vol. II p. 73 (“Once the ancillary

       duties [ ] are identified by the [School Employer], the parties are permitted to

       bargain the wage for the duty or position. The [collective bargaining

       agreement] would then reflect the [School Employer-]identified ancillary duty[ ]

       and the wage for the specific duty or position . . . .”).


              I.       Collective Bargaining by Indiana Schools and School Employees

                                                       A. Statutes

[16]           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).


       Jay Classroom Teachers Ass’n v. Jay School Ass’n (“Jay Classroom I”), 45 N.E.3d

       1217, 1219-20 (Ind. Ct. App. 2015), aff’d in part, vacated in part, Jay Classroom II,

       55 N.E.3d 813 (Ind. 2016).


[17]           In 2011, the statutory scheme governing collective bargaining for
               teachers was significantly amended to promote speed and

       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020        Page 16 of 31
               finality. Although those amendments left intact the bargaining
               rights and obligations of teachers and schools, I.C. §§ 20-29-4-1, -
               6-1 (Supp. 2011), they reduced the number of bargaining subjects
               ....


               Specifically, the 2011 amendments eliminated permissive
               bargaining subjects altogether, while also limiting mandatory
               bargaining subjects to just wages, salaries, and related fringe
               benefits . . . .


       Jay Classroom II, 55 N.E.3d 813, 817 (Ind. 2016) (citations omitted).


[18]   Several Indiana statutes are pertinent to our review. Indiana Code Section 20-

       29-6-1 provides:


               (a) School employers and school employees shall:


                        (1) have the obligation and the right to bargain collectively
                        the items set forth in [Indiana Code Section 20-29-6-4];


                        (2) have the right and obligation to discuss any item set
                        forth in [Indiana Code Section 20-29-6-7] of this chapter;
                        and


                        (3) enter into a contract embodying any of the matters
                        listed in [Indiana Code Section 20-29-6-4] of this chapter
                        on which they have bargained collectively.


               (b) Notwithstanding any other law, before a school employer and
               school employees may privately negotiate the matters described
               in subsection (a)(1) during the time period for formal collective
               bargaining established in [Indiana Code Section 20-29-6-12] of
               this chapter, the parties must hold at least one (1) public hearing

       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020           Page 17 of 31
               and take public testimony to discuss the items described in
               subsection (a).


[19]   Indiana Code Section 20-29-6-4 delineates the mandatory bargaining subjects of

       collective bargaining: (1) salary; (2) wages; and (3) “[s]alary 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 IC 20-28-9-11.”


[20]   Indiana Code Section 20-29-6-4.5 provides:


               (a) For a contract entered into after June 30, 2011, a school
               employer may not bargain collectively with the exclusive
               representative on the following:


                        (1) The school calendar.


                        (2) Teacher dismissal procedures and criteria.


                        (3) Restructuring options available to a school employer
                        under federal or state statutes, regulations, or rules because
                        of the failure of the school corporation or a school to meet
                        federal or state accountability standards.


                        (4) The ability of a school employer to contract, partner, or
                        operate jointly with an educational entity that provides
                        postsecondary credits to students of the school employer
                        or dual credits from the school employer and the
                        educational entity.


                        (5) Any subject not expressly listed in [Indiana Code
                        Section 20-29-6-4] of this chapter.
       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020          Page 18 of 31
               (b) For a contract entered into after January 1, 2015, for a school
               year beginning after June 30, 2015, a school employer may not
               bargain collectively with the exclusive representative for the
               following:


                        (1) A matter described in subsection (a).


                        (2) A matter that another statute specifies is not subject to
                        collective bargaining, including IC 20-28-9-1.5 and IC 20-
                        43-10-3.5.


               (c) A subject set forth in subsection (a) or (b) that may not be
               bargained collectively may not be included in an agreement
               entered into under this article.


[21]   Indiana Code Section 20-29-6-2 provides:


               (a) Any contract may not include provisions that conflict with:


                                                           *****


                        (6) [Indiana Code Section 20-29-6-4.5(a)] of this chapter.


               (b) A subject that is set forth in [Indiana Code Section 20-29-6-
               4.5(a)] of this chapter may not be included in any contract after
               June 30, 2011.


[22]   Indiana Code Section 20-29-6-6 provides:


               The obligation to bargain collectively does not include the final
               approval of a contract concerning any items. Agreements
               reached through collective bargaining are binding as a contract
               only if ratified by the governing body of the school corporation

       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020           Page 19 of 31
               and the exclusive representative. The obligation to bargain
               collectively does not require the school employer or the exclusive
               representative to agree to a proposal of the other or to make a
               concession to the other.


[23]   Indiana Code Section 20-29-6-6.1 provides:


               (a) After ratification of a contract under [Indiana Code Section
               20-29-6-6] of this chapter, a school employer shall submit the
               [CBA], including the compensation model developed under IC
               20-28-9-1.5, to the [IEERB].


               (b) The [IEERB] shall appoint a staff member or an ad hoc panel
               member to review each submitted [CBA] and to make a written
               recommendation concerning the [CBA]’s compliance with this
               chapter, including a penalty for any noncompliance. . . .


                                                      *****


               (f) If, following the review of a [CBA], the [IEERB] finds the
               [CBA] does not comply with this chapter, the [IEERB] shall issue
               an order that may include one (1) or more of the following items:


                        (1) Ordering the parties to cease and desist from all
                        identified areas of noncompliance.


                        (2) Preventing the parties from ratifying any subsequent
                        [CBAs] until the parties receive written approval from the
                        [IEERB] or the [IEERB]’s agent.


                        (3) Requiring other action as deemed appropriate by the
                        [IEERB] as authorized by state law. . . .



       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020        Page 20 of 31
                                                     B. Caselaw

[24]   In support of their argument that negotiations of ancillary duties are

       encompassed within the mandatory collective bargaining topics for teachers,

       the Teachers Associations rely upon Jay Classroom I and Nettle Creek, which we

       discuss in turn below.


                                                     A. Nettle Creek


[25]   In Nettle Creek, the Nettle Creek school employer and teachers association

       reached a stalemate in their collective bargaining negotiations regarding the

       teachers association’s request for additional compensation for ancillary duties

       that the school employer required its teachers to perform outside the teachers’

       normal teaching duties. After the parties were unsuccessful at mediation, the

       parties, as required by statute, tendered their last best offers to the IEERB in

       order for the IEERB to select one party’s last best offer to serve as the parties’

       bargained contract for the academic year. The school employer’s last best offer

       excluded the additional compensation provision from its last best offer, and the

       teachers association included the provision in its last best offer.


[26]   The IEERB recommended the adoption of the school employer’s last best offer,

       which did not allow for the desired additional compensation for ancillary

       duties. The teachers association filed a petition for judicial review, and the trial

       court reversed the IEERB’s decision as arbitrary, capricious, and contrary to

       law. The IEERB appealed, and a panel of this Court found that, although

       “teachers are not entitled to receive overtime for performing their ‘normal’


       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020       Page 21 of 31
       teaching duties, i.e., duties that are completed as part of one’s direct teaching

       function[,] . . . . teachers may negotiate for additional wages for responsibility

       associated with co-curricular duties that are voluntarily assumed by a teacher.”

       Nettle Creek, 26 N.E.3d at 56. The panel remanded to the IEERB to “review the

       parties’ proffered [last best offers] taking into consideration” that “[the] parties

       may negotiate for additional wages for required ancillary duties . . . .” Id. at 57.


                                     B. Jay Classroom I and Jay Classroom II


[27]   In Jay Classroom I, the Jay teachers association and school employer reached an

       impasse in their collective bargaining negotiations. After a failed mediation,

       the parties tendered last best offers to an IEERB factfinder, who recommended

       the adoption of the school employer’s last best offer as the parties’ master

       contract. The teachers association appealed to the IEERB. After a hearing, the

       IEERB affirmed the factfinder’s recommendation.


[28]   Despite the affirmance, however, the IEERB ordered stricken from the adopted

       contract a provision (“the additional compensation provision”) that appeared in

       both parties’ last best offers. The additional compensation provision authorized

       extra pay and established a pay scale for teachers who, voluntarily or by

       assignment, covered other teachers’ classes. The IEERB reasoned that the

       additional compensation provision was statutorily impermissible and “would

       allow teachers to be double-paid for an assignment of duties.” Jay Classroom I,

       45 N.E.3d at 1221. The teachers association filed a petition for judicial review,

       which was denied by the trial court. The trial court found, in part, that the


       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020        Page 22 of 31
       additional compensation provision allowed teachers to be doubly-paid for

       performing their duties.


[29]   The teachers association appealed to this Court, which found that the

       additional compensation provision was not prohibited by statute or otherwise

       impermissible and, thus, should not have been stricken. This Court reasoned:


               . . . 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 [last best
               offers]. 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.” * * * * * 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
               [IEERB]’s decision must be restricted to only those items
               permitted to be bargained and included in the collective
               bargaining agreement).


       Id. at 1225.


[30]   Although our Supreme Court granted transfer and reversed this Court’s Jay

       Classroom I judgment on grounds relating to an unrelated provision, Jay

       Classroom II “summarily affirm[ed]” this Court’s holding in Jay Classroom I that

       the additional compensation provision was not prohibited by statute or

       otherwise impermissible. Our Supreme Court reasoned as follows:



       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020        Page 23 of 31
               On direct appeal, the [teachers association] also argued that the
               IEERB improperly struck a contract provision in both parties’
               [last best offers] that “provid[ed] additional wages to teachers
               who volunteer or are assigned to cover a class.” Jay Classroom [I],
               45 N.E.3d at 1223. The trial court had affirmed the IEERB’s
               decision to strike the additional compensation provision,
               concluding 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.” The Court
               of Appeals disagreed and held that the additional compensation
               provision was permissible. We agree and summarily affirm the
               Court of Appeals on this issue.


       Jay Classroom II, 55 N.E.3d at 816 n.1 (citations omitted).


                                    II.      Teachers Associations v. IEERB

[31]   In applying the pertinent statutes and caselaw to the instant facts, we observe

       that, when the General Assembly limited the mandatory bargaining topics to

       salary, wages, and wage-related benefits, it evinced its intention that school

       employers and teachers associations could rightfully negotiate as to wage and

       wage-related fringe benefits. See I.C. § 20-29-6-4. Moreover, by designating

       certain topics—including wages—for mandatory bargaining, while relegating

       other topics to “discuss[ion]” only at the school employer’s discretion, the

       General Assembly further evinced its intention to allow school employers to

       direct the course of collective bargaining negotiations with teachers. See I.C. §

       20-29-6-7. This is consistent with the following conclusions of law entered by

       the trial court in its order denying the petition for judicial review:




       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020      Page 24 of 31
               17. IEERB argues that its interpretation of Ind. Code § 20-29-6-4
               was correct. IEERB specifically claims that parties to a CBA
               may not bargain the definition of an ancillary duty or other
               limitation because only schools have the authority to define or
               limit an ancillary duty. IEERB also claims that once the school
               defines an ancillary duty, the parties may then bargain the wage
               for that particular ancillary duty.


               18. In support of its argument, IEERB cites to the Indiana Code
               to say that, Indiana law provides that only schools have the
               authority to direct the work of teachers and maintain efficient
               school operations, Ind. Code § 20-29-4-3(1), (5), and a CBA may
               not contain any provision that interferes with the school
               employer’s rights, Ind. Code § 20-29-6-2(a)(3).


       Teachers Associations’ App. Vol. II pp. 17-18 (quotations omitted).


[32]   As an initial matter, we note that, although the IEERB artfully frames the issue

       as whether the Teachers Associations impermissibly negotiated what

       constitutes an ancillary duty, the record reveals that the Teachers Associations

       and their respective School Employers agreed as to what constituted an

       ancillary duty and bargained regarding the compensation therefor, as is authorized by

       the Jay Classroom I and Nettle Creek holdings. Identifying agreed-upon ancillary

       duties is not the same as bargaining them. 2 A plain and ordinary reading of the




       2
        In reading the CBAs as a whole, and giving the provisions their plain and ordinary meaning, we observe the
       challenged Culver, Decatur, and Smith Green provisions are appropriately catalogued within CBA articles
       governing either salary or compensation; and the challenged provision in the West-Clark CBA is found in an
       appendix labelled, “Ancillary Duties[.]” Teachers Associations’ App. Vol. III, p. 167.




       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020                           Page 25 of 31
       CBAs does not indicate that the parties bargained regarding which ancillary

       duties teachers would be required to perform. Rather, the parties identified the

       compensable ancillary duties and bargained the compensation accordingly.


[33]   Notwithstanding the IEERB’s repeated acknowledgment of the School

       Employers’ authority to direct the course of collective bargaining regarding

       ancillary duties, the IEERB failed to honor the intent of the respective School

       Employers. Just as the last best offers submitted separately by the school

       employer and teachers association in Nettle Creek included the same “additional

       compensation provision[,]” the ratified CBAs here—which reflected the

       bargained agreement of the School Employers and Teachers Associations—

       included the challenged provisions pertaining to ancillary duties. It is,

       therefore, undisputed that the School Employers were aligned with the

       Teachers Associations regarding these IEERB-challenged provisions.


[34]   Although the trial court discounted Nettle Creek and Jay Classroom I as mere

       dicta, the holdings of these cases are not dicta. These cases are directly on-point

       and set forth legal holdings that directly relate to the issue at-bar. See Sw. Allen

       Cty. Fire Prot. Dist. v. City of Fort Wayne, 142 N.E.3d 946, 956 (Ind. Ct. App.

       2020) (“[S]tatements that are not necessary in the determination of the issues

       presented are dicta, are not binding, and do not become the law of the case.”).

       The trial court’s findings and conclusions thereon dismissing Nettle Creek and

       Jay Classroom I as dicta are clearly erroneous.




       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020         Page 26 of 31
[35]   Nettle Creek and Jay Classroom I presented more of a challenge than the instant

       matter because, in those cases, the parties could not fully agree regarding the

       ancillary duties sought to be bargained. Nonetheless, in Nettle Creek and Jay

       Classroom I, this Court held that teachers may negotiate for additional wages for

       responsibilities associated with ancillary duties. As the Nettle Creek panel

       reasoned:


               . . .[W]e 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
               [IEERB] 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.


       Nettle Creek, 26 N.E.3d at 56; see Jay Classroom I, 45 N.E.3d 1219 (“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


       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020      Page 27 of 31
       additional-compensation provision and included it in their respective [last best

       offers].”).


[36]   Given the willingness of the School Employers to bargain regarding the

       ancillary duties at issue, we cannot agree with the IEERB’s conclusion that the

       challenged provisions interfered with the School Employers’ collective

       bargaining rights. To the contrary, by including the challenged provisions in

       the final, negotiated, and ratified CBAs, the School Employers assented to and

       permitted bargaining thereon, and the Teachers Associations did not

       impermissibly dictate bargaining subjects for negotiation.


[37]   The School Employers and Teachers Associations reached final agreements

       after they followed the collective bargaining processes established by Indiana

       Code Chapter 20-29-6. One of the stated aims of Indiana Code Chapter 20-29-6

       is for school employers and school employee organizations to “develop[ ]

       harmonious and cooperative relationships” by way of a statutory process meant

       to “alleviate various forms of strife and unrest.” See Jay Classroom I, 45 N.E.3d

       at 1219-20. The parties accomplished their bargaining purposes here without

       strife and unrest; and we are perplexed by the IEERB’s stance in this case. The

       reasoning of the Jay Classroom I panel is especially instructive here:


               . . . 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 [last best offer]s. This shows a clear agreement and
               understanding between the parties . . . . In sum, we find that the



       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020          Page 28 of 31
               provision was not prohibited by statute or otherwise
               impermissible. . . .


       Jay Classroom I, 45 N.E.3d at 1225 (emphasis added).


[38]   For the foregoing reasons, we find the IEERB’s interpretation of the applicable

       statutes to be unreasonable and decline to afford great weight thereto. The

       Teachers Associations have carried their burden to prove that the IEERB’s final

       decisions regarding their respective CBAs are arbitrary, capricious, an abuse of

       discretion, or otherwise not in accordance with law. Accordingly, we find that

       the trial court erred in denying the Teachers Associations’ joint petition for

       judicial review. We reverse and remand to the IEERB with instructions to

       adopt the ratified CBAs of the School Employers and the Teachers

       Associations.


                                                   Conclusion
[39]   The trial court erred in denying the Teachers Associations’ petition for judicial

       review. We reverse and remand.


[40]   Reversed and remanded.


       Mathias, J., concurs.


       Riley, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020      Page 29 of 31
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Culver Community Teachers                                  Court of Appeals Case No.
       Association, et al.,                                       19A-PL-2989

       Appellants-Petitioners,

               v.

       Indiana Education Employment
       Relations Board,
       Appellee-Respondent,

       And

       West Clark Community Schools,

       Intervenor.



       Riley, Judge dissenting


[41]   I respectfully dissent from the majority’s conclusion that the IEERB’s final

       decisions regarding the four CBAs at issue were arbitrary, capricious, an abuse

       of discretion, or otherwise not in accordance with law, and, thus, that the trial

       court erred in denying the Teachers Associations’ petition for review. Indiana

       Code section 20-29-6-4 limits the mandatory subjects for collective bargaining

       to salary, wages, and salary and wage-related benefits. Accordingly, pursuant

       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020                    Page 30 of 31
       to the plain terms of the statute, what constitutes an ancillary duty cannot be a

       subject for collective bargaining. See also I.C. § 20-29-6-4.5 (“[A] school

       employer may not bargain collectively with the exclusive representative on . . .

       [a]ny subject not expressly listed in [I.C. § 20-29-6-4].”). In reaching a contrary

       conclusion, the majority relies on dicta contained in our previous decisions in

       Nettle Creek Classroom Teachers Ass’n and Jay Classroom I, neither of which

       addressed the issue at hand, which is properly framed as whether Indiana Code

       section 20-29-6-4 provides teachers the authority to bargain with a school

       corporation as to what constitutes an ancillary duty.


[42]   As the majority acknowledges, we accord deference to an administrative

       agency’s interpretation of a statute it is charged with enforcing. Given the plain

       terms of the statute and the lack of binding legal authority for the Teachers

       Associations’ position, I cannot conclude that the trial court erred when it

       denied the petition for judicial review. For these reasons, I respectfully dissent.




       Court of Appeals of Indiana | Opinion 19A-PL-2989 | August 12, 2020      Page 31 of 31
