Indiana Law Review


Teacher Bargaining in Indiana: The Courts and the
Board on the Road Less Traveled

Lisa B. Bingham*

Introduction

Indiana has twenty years of experience with collective bargaining for

certificated educational employees.' From its inception, the Indiana Certificated

Educational Employee Bargaining Act (the Act) represented an experiment

combining mandatory bargaining with mandatory discussion of certain bargaining

subjects.^ The Indiana Education Employment Relations Board (the Board) and

the state courts have taken a unique direction in public employee bargaining. In

some respects, the rules in Indiana depart from prevailing public and private

traditions. This Article will survey and summarize the decisions of the Indiana

courts interpreting the Act. In particular, the Article will examine amendments

following the Act's initial adoption; review the decisions of Indiana courts on

bargaining unit determinations, elections, the Board's remedial powers, and the

structure of bargaining subjects under the Act; and examine how the Board and

the courts have handled the specific areas of school calendar, teacher evaluation,

teacher dismissal, school committees, and fair share fees under the Act. The

Article will also examine how the courts have reviewed arbitration awards
interpreting teacher collective bargaining agreements. This Article is not a

comprehensive summary of the decisions of the Board; instead it attempts to

examine how the Board has fared in the courts. Finally, it suggests alternate
approaches to certain kinds of cases arising under the Act. Labor relations

involves a dynamic relationship, exerting forces of its own on any statutory
framework. The Indiana legislature chose to limit the scope of mandatory

bargaining and expand those issues subject to mandatory discussion. However,

the dynamics of the labor relationship often force the parties, the courts and the

Board to obscure these statutory boundaries. It might be simpler for all to live

with a broader scope of mandatory bargaining on wages, hours, and conditions

* Assistant Professor, Indiana University School of Public and Environmental Affairs.

J.D., 1979, University of Connecticut; A.B., 1976, Smith College. The author gratefully

acknowledges the assistance of staff at the lEERB, Richard Darko, Esq.; research assistant Paul

Wright (a candidate for the J.D. and M.P.A. degrees at the Indiana University School of Law and
School of Public and Environmental Affairs); and clerical assistant Shannon Decker.

1. Indiana Certificated Educational Employee Bargaining Act, IND. Code § 20-7.5-1-1

to -1-14 (1993) (often referred to as CEEBA), Ind. Public Law No. 217, approved Apr. 24, 1973
[hereinafter the Act]. The Act establishes the Indiana Education Employment Relations Board,

often referred to as lEERB [hereinafter the Board].

2. See Symposium, A Year of Teacher Bargaining in Indiana, 50 iND. L.J. 284 (1975)
for a review of the basic structure of the Act. See also Note, Determining the Scope of Bargain-

ing Under the Indiana Education Employment Relations Act, 49 iND. L.J. 460 (1973).



990 INDIANA LAW REVIEW [Vol. 27:989

of employment than to reconcile the conflicting demands of negotiation,

discussion, and managerial discretion.

I. The Power and Jurisdiction of the Board

A. A Brief History

Indiana authorized collective bargaining for teachers in 1973.^ The Board

has jurisdiction only over certificated school employees."* As is true in most

states, public employees in Indiana do not have the right to strike.^ Indiana has

a turbulent history with respect to collective bargaining for other public

employees. The legislature adopted collective bargaining for municipal

employees in 1975 through Public Law 254.^ Governor Bowen vetoed a
separate bill intended to extend collective bargaining rights to police officers and

firefighters.^ In 1977, the Indiana Supreme Court declared unconstitutional

Indiana's collective bargaining statute for public employees.*^ The state

3. See Barbara Doering, Bargaining and Discussion: Is it a Happy Marriage?, 50 IND.

L.J. 284, nn.1-3 (1975) for references on the turbulent debate concerning teacher bargaining and

unsuccessful prior attempts to pass a bargaining law.

4. iND. Code § 20-7.5-1 -2(f) (1993) defines "certificated employee" as a person whose
contract with the school corporation requires he hold a license or permit.

5. See Edward P. Archer, Labor Law, 1980 Survey of Recent Developments in Indiana

Law, 14 iND. L. Rev. 413 (1981) for an account of an illegal teacher strike in the Indianapolis

Public Schools. See also Martin H. Malin, Public Employees' Right to Strike: Law and

Experience, 26 U. MiCH. J.L. Ref. 313 (1993) (suggesting that public employees should have the

right to strike). As an indication of the climate for public employee bargaining, Indiana courts

have gone so far as to authorize a civil cause of action by property owners against individual

striking fire fighters for damage that resulted when those fire fighters failed to report to a fire.

Boyle V. City of Anderson, 497 N.E.2d 1073 (Ind. Ct. App. 1986). However, an elementary

student has no cause of action against teachers for damages allegedly sustained when they

participated in an illegal strike. Coons v. Kaiser, 567 N.E.2d 851 (Ind. Ct. App. 1991). See

Barbara J. Pick, Labor and Employment Law, 1991 Suiyey of Recent Developments in Indiana

Law, 25 iND. L. REV. 1311 (1992) for a more complete discussion.

6. Pub. L. No. 254, 1975 Ind. Acts 1354, originally codified at iND. CODE §§ 22-6-4-1

to -4-3 (1977) (repealed 1982).

7. Ind. H.R. 1053, 99th Gen. Assembly, 1st Sess. (1975), vetoed Apr. 17, 1975; for a

discussion on this legislation and its veto, see Edward L. Suntrup, Enabling Legislation for

Collective Action by Public Employees and the Veto of Indiana House Bill 1053, 9 iND. L. Rev.

994 (1976).

8. Indiana Educ. Employment Relations Bd. v. Benton Community Sch. Corp., 365

N.E.2d 752 (Ind. 1977). In Benton, the court held that the statute precluded judicial review of the

Board's bargaining unit determination and certification of an exclusive bargaining representative.

The court observed that this Indiana law differed from the National Labor Relations Act (NLRA).

29 U.S.C. §§ 151-169 (1988). Under the NLRA, an employer could contest a bargaining unit

determination by refusing to bargain, and thereby forcing the union to file an unfair labor practice

charge. In the absence of a severability clause, the court struck down the entire bargaining law.

No substitute was ever enacted. A court subsequently held that a school employer may condition
bargaining with non-teaching school employees on employees' agreement to use bargaining



1994] TEACHER BARGAINING 991

legislature has repeatedly considered and failed to authorize bargaining for state

employees, notably in each of the last four legislative sessions.^ Governor Evan

Bayh established a separate Indiana Public Employee Relations Board (PERB)

for state employees by executive order.'" The PERB supervises the election
process and certifies exclusive representatives among state employees in

anticipation that the legislature will eventually adopt collective bargaining."

Until mandatory collective bargaining is adopted, the state has engaged in

voluntary collective bargaining with exclusive representatives of state employees

and concluded several collective bargaining agreements under the executive

order. '^ Thus, the Indiana Education Employment Relations Board administers

a teacher bargaining law, but at present has no jurisdiction over other categories

of public employees.

The Act creates three categories into which it divides the traditional subjects

of collective bargaining. Specifically, it renders some subjects bargainable, some

discussable, and some matters of school board discretion.'^ While the Act has

been amended a number oftimes since its passage, all but two of those amendments

representatives who were either employees of the school system or were lawyers. Michigan City
Area Schools v. Siddall, 427 N.E.2d 464 (Ind. Ct. App. 1981). The court reasoned that Public

Law 254 was declared unconstitutional, and no substitute had been passed; thus, the employer

was not obligated to engage in collective bargaining even with the majority representative of non-

certificated employees. Since all bargaining was voluntary, the employer could condition that

bargaining upon the employees' agreement to a specific category of representative. The court

held it was not a First Amendment violation to attach a condition precedent to non-mandatory

bargaining. See Edward P. Archer, Labor Law, 1982 Survey of Recent Developments in Indiana

Law. 16 Ind. L. Rev. 225, 228 (1983) for a more complete discussion.

9. See 1993 Indiana House Bill No. 1135, 1993 Indiana House Bill No. 1306, 1993

Indiana House Bill No. 1467, 1993 Indiana House Bill No. 1678, 1993 Indiana Senate Bill No.

106, and 1993 Indiana Senate Bill No. 217 for examples of such attempts during the 1993

legislative session.

10. Exec. Order No. 90-6 Establishing Procedures for Recognition of Employee Organi-

zations Representing Employees of the Executive Branch, 13 Ind. Reg. 10 (July 1, 1990). See

also Mitzi H. Martin & Todd M. Nierman, Survey of Recent Developments in Indiana Employ-
ment Law, 24 iND. L. Rev. 951, 967 (1991).

11. 13 Ind. Reg. 10, 1925-1930 (July 1, 1990).

12. Copies of the first set of such collective bargaining agreements are available from the

author, and on file with the Indiana Law Review.

13. For a more complete discussion, see infra Part III and accompanying notes.



992 INDIANA LAW REVIEW [Vol. 27:989

are essentially technical.'"* The most substantive one*^ expands those subjects

to be discussed."^ It appears to limit the exercise of management's right to take

most ordinary personnel actions by requiring that those actions be effectuated

through procedures established by bargaining or discussion with the teacher

union. The Board has adopted a series of regulations governing its administration

of the Act.
'^

B. The Scope of Judicial Review for Board Decisions

In general, the courts have applied the usual standards for review of an

administrative agency to the Board's decisions.'^ Under Indiana's Administra-

tive Adjudication Act,'^ courts will uphold a Board decision supported by

substantial, reliable and probative evidence. The Board is charged with making

determinations of fact. The courts will not review a Board decision by weighing

conflicting evidence which appears in the record. If there is any substantial

evidence to support the Board's finding, the courts will not disturb it.^"

14. See Pub. L. No. 1, § 5, 1974 Ind. Acts 3; Pub. L. No. 93, § 1, 1974 Ind. Acts 342

(permitting persons on the teaching staff of a university who are knowledgeable in public

administration or labor law to be appointed members of the Board so long as they are not actively

engaged other than as a member with any labor or employee organization); Pub. L. No. 6, § 30,

1978 Ind. Acts 664; Pub. L. No. 11, § 104, 1981 Ind. Acts 260; Pub. L. No. 16, § 13, 1984 Ind.

Acts 235; Pub. L. No. 7, § 93, 1987 Ind. Acts 440; Pub. L. No. 2, § 565, 1988 Ind. Acts 234;

Pub. L. No. 1, § 38, 1989 Ind. Acts 24 (directing that the subsection authorizing teaching staff of

a university to be members of the board be construed liberally to effectuate the intent of the

General Assembly); Pub. L. No. 3, § 118, 1989 Ind. Acts 179 (changing definition of supervisors

excluded from the bargaining unit so as to omit the language "[s]upervisors shall include, but not

be limited to," presumably thereby restricting the definition of supervisor to those job titles listed

in the statute, specifically superintendents, assistant superintendents, business managers and

supervisors, directors with school corporation-wide responsibilities, principals and vice principals,

and department heads who have responsibility for evaluating teachers).

15. Public Law 105, Section 5, 1992 Ind. Acts 2621.
16. The amendment changes what was previously selection, assignment or promotion of

personnel to "hiring, promotion, demotion, transfer, assignment, and retention of certificated

employees and changes to any of the requirements set forth in I.C. 20-6.1-4." In addition, it

amends Section 6 by limiting a school corporation's managements rights. Specifically, where

employers previously were authorized to establish policy, the statute now provides that they may

"establish policy through procedures established in sections 4 and 5 of this chapter." Ind. Code

§ 20-7.5-1 -6(b)(2) (1993). Sections 4 and 5 define the scope of bargaining and discussion

respectively. In addition, where employers previously were authorized to hire, promote, demote,

transfer, assign and retain employees, they now may do so only "through procedures established

in sections 4 and 5 of this chapter." iND. Code § 20-7.5-1 -6(b)(3) (1993).
17. See Ind. Admin. Code tit. 560, §§ 2-1-1 to -1-9 (1992).

18. See generally ALFRED C. Aman, Jr. & WILLIAM T. Mayton, ADMINISTRATIVE LAW
434-522 (1993); Bernard Schwartz, Administrative Law 623-713 (1991).

19. iND. Code §§ 4-21.5-5-1 to -5-16 (1993).
20. Indiana Educ. Employment Relations Bd. v. Board of Sch. Trustees of Baugo

Community Sch., 377 N.E.2d 414 (Ind. App. 1978) (upholding a Board decision finding that a

teacher was dismissed for union activities contrary to the Act). There has been some debate



1994] TEACHER BARGAINING 993

However, the courts will intervene if the Board exceeds its statutory authority;

if the Board's decision violates constitutional principles; if it is made on unlawful

procedure; or if it is arbitrary, capricious or an abuse of discretion.^'

The courts have held that the Board has jurisdiction over any dispute arising

under the Act whether or not it ultimately finds that the employer or exclusive

employee representative committed an unfair labor practice.^^ Consequently,

the Indiana Supreme Court held that the Board had jurisdiction to hear an unfair

labor practice complaint regarding a school board's failure to pay annual step

increases and salary raises associated with improvements in the employees

academic credentials.^^ The court applied a standard analogous to "capable of

repetition yet evading review."^"^

One peculiarity is Indiana's limit on the Board's final order power. In a

series of four decisions from 1976 to 1979, the Indiana Court of Appeals held

that the Board has no power to issue final orders of reinstatement when a non-

tenured teacher has been fired for union activities in violation of Section 7(a) of

the Act.^^ In Worthington /, the court found the Board's decision to fire three

teachers for their union activities was supported by substantial evidence. In

Worthington II, where the trial court affirmed the Board's order reinstating the

regarding the meaning of "any substantial evidence." See Gregory J. Utken, Administrative Law,

Survey of Recent Developments in Indiana Law, 11 IND. L. Rev. 20, 24-25 (1978); Harold

Greenberg, Administrative Law, 1979 Survey of Recent Developments in Indiana Law, 13 iND. L.

Rev. 39, 40-41 (1980); and Richard J. Darko, Labor Law, 1979 Survey of Recent Developments

in Indiana Law, 13 iND. L. REV. 295, 311 (1980). These commentators argue that it represents a

one-sided review and is distinct from "substantial evidence on the record as a whole."

21. Baugo Community Sch., 3>11 N.E.2d at 416.

22. E.g., Eastbrook Community Sch. Corp. v. Indiana Educ. Employment Relations Bd.,

446 N.E.2d 1007, 1010 (Ind. Ct. App. 1983).

23. Indiana Educ. Employment Relations Bd. v. Mill Creek Classroom Teachers Ass'n,

456 N.E.2d 709 (Ind. 1983) (holding that the statutory requirement that school employers

maintain the status quo pending resolution of a bargaining dispute means that the employer must

implement previously agreed to salary increases under the hold over contract pursuant to Ind.

Code § 20-7.5-1 -12(e)). See Edward P. Archer, 1984 Survey of Recent Developments in Indiana

Law- Labor Law, 18 iND. L. REV. 291, 297-98 (1985) for a more complete discussion. See also

Eastbrook Community Sch. Corp. v. Indiana Educ. Employment Relations Bd., 446 N.E.2d 1007

(Ind. Ct. App. 1983).

24. Mill Creek, 456 N.E.2d at 712 ("The law in Indiana is well settled that although a

specific issue may be moot, the fact that it recurs year after year and is of great public interest is

sufficient to allow the issue to be considered on its merits.").

25. Indiana Educ. Employment Relations Bd. v. Board of Sch. Trustees of Worthington-

Jefferson Consol. Sch. Corp., 355 N.E.2d 269 (Ind. App. 1976) {Worthington I); Board of Sch.

Trustees of Worthington-Jefferson Consol. Sch. Corp. v. Indiana Educ. Employment Relations

Bd., 375 N.E.2d 281 (Ind. App. 1978) (Worthington II); Board of Sch. Trustees of Worthington-

Jefferson Consol. Sch. Corp. v. Indiana Educ. Employment Relations Bd., 380 N.E.2d 93 (Ind.

App. 1978) (Worthington III ); State ex rel. Board of Sch. Trustees of Worthington-Jefferson

Consol. Sch. Corp. v. Knox Cir. Ct., 390 N.E.2d 232 (Ind. App. 1979) (Worthington IV ). See

Richard U. Darko, Labor Law, 1979 Survey of Recent Developments in Indiana Law, 13 iND. L.

Rev. 295 (1980) for a more complete discussion.



994 INDIANA LAW REVIEW [Vol. 27:989

teachers, the Court of Appeals held that the Board itself had no authority to order

reinstatement of teachers but that the trial court, using its inherent equitable

powers, could fashion a remedy to cure whatever injustice had taken place. In

Worthington ///, the Court of Appeals determined that the Act grants no power

to the Board to issue final orders of reinstatement for certified school employees

with or without back pay, calling into question whether the Board has any final

order power to remedy an unfair labor practice.^^ In Worthington IV, the

School Board sought to require the trial court to hold a hearing on the question

of reinstatement, so that it could prove the employees would have been fired

notwithstanding their union activities. The Indiana Court of Appeals rejected the

claim and limited any further hearing to the amount of back pay that might be

due in addition to reinstatement.^^ Although the Board continues to issue orders

to remedy unfair labor practice charges, the Worthington cases suggest that the

Board has power only to issue interlocutory or temporary orders, but not the

power to issue final orders of reinstatement.^^

II. BARGAINING UNITS AND ELECTIONS

The Act mandates bargaining between school employers and school

employees. A school employee is defined as:

[A]ny full-time certificated person in the employment of the school

employer. A school employee shall be considered full-time even though
the employee does not work during school vacation periods, and

accordingly works less than a full year. There shall be excluded from

the meaning of school employee supervisors, confidential employees,

employees performing security work and non-certificated employees.^^

Supervisors, who are not considered employees under the Act, are defined

in essentially the same fashion as provided in the National Labor Relations

Act^" as those with authority "to hire, transfer, suspend, lay off, recall, promote,

discharge, assign, reward or discipline school employees" or, "direct" them and

"adjust their grievances," or "effectively recommend" either of these actions.^'

Courts have construed this term to exclude school employees who serve as

athletic director, head football coach, and head basketball coach.^^ One court

26. Worthington III, 380 N.E.2d at 95.

27. Worthington IV, 390 N.E.2d at 233-34. See Archer, supra note 5, at 421 for a more

detailed discussion criticizing this result on the basis that it will lead to inconsistency in enforce-

ment.

28. Commentators have criticized this result as inconsistent with the purpose of the Act,

and anomalous in view of other labor laws. See Darko, supra note 25, at 307- 11.

29. IND. Code § 20-7.5-l-2(e) (1993).
30. 29 U.S.C. §§ 151-169(1988).

31. iND. Code § 20-7.5-1 -2(h) (1993).
32. See, e.g., Lawrence Township Educ. Ass'n v. Indiana Educ. Employment Relations



1994] TEACHER BARGAINING 995

required that the supervisory employee exercise authority over certificated school

employees.^^ The problem with the court's rule is that it leads to somewhat

unpredictable results: whether an employee falls within the bargaining unit may
change from one year to the next, depending on precisely whom the school board
hires to fill coaching positions.^"*

The better rule would be to examine whether the state or the school

corporation requires those supervised to hold a teaching certificate. In

Maconaquah School Corp. ,^^ the school board refused to bargain for compensa-

tion for a summer pool director although he was licensed to teach and served as

the head swimming coach and physical education teacher at the middle school.

The court held that if the state or the local school corporation requires a

certificate for a particular position, that position falls within the bargaining unit

and the school board must bargain compensation.^^ Since the position of

summer pool director did not require a license or permit, the court excluded it

from the bargaining unit and reversed the decision of the Board.^^

This rule would produce consistent and predictable results. It would not

distort the language of the statute which defines a supervisor as one who acts in
that capacity vis a vis "school employees."^*^ This incorporates the definition

of school employee as "any full time certificated person."^^ A "certificated
employee" is defined as a person whose "contract with the school corporation

requires that he hold a license or permit from the state board of education.'"^"

The Indiana Supreme Court had an opportunity to consider this issue, but

declined to do so.'*'

Bd., 536 N.E.2d 563 (Ind. Ct. App. 1989) (holding that the person occupying each of these

positions may make effective recommendations concerning hiring, discharge, assignment, transfer

and promotion of other coaches).

33. Id. at 564.

34. For another case excluding from the teacher bargaining unit as supervisors the head

football coach, head basketball coach, and associate athletic director, see Board of Sch. Trustees

of Marion Community Sch. v. Marion Teachers Ass'n, 530 N.E.2d 309 (Ind. Ct. App. 1988).

The court acknowledged the Board's power to hear a bargaining unit clarification petition during

the term of an existing contract. The court holds that the inclusion of supervisors within a

teacher bargaining unit is an illegal subject of bargaining under the Act. Id. at 310-1 1.

35. Board of Sch. of Trustees Maconaquah Sch. Corp. v. Indiana Educ. Employment

Relations Bd., 497 N.E.2d 1084 (Ind. Ct. App. 1986).

36. Id. at 1087.

37. Id.

38. Ind. Code § 20-7.5-1 -2(h) (1993).
39. Ind. Code § 20-7.5-l-2(e) (1993).
40. iND. Code § 20-7.5-1-2(0 (1993) (emphasis added).

41. See Board of Sch. Trustees of Sch. Town of Speedway v. Indiana Educ. Employment

Relations Bd., 510 N.E.2d 162 (Ind. 1987) (Chief Justice Shepard, dissenting from denial of

transfer); and Board of Sch. Trustees of the Sch. Town of Speedway v. Indiana Educ. Employ-

ment Relations Bd., 498 N.E.2d 1006, 1007 (Ind. Ct. App. 1986) (holding that the positions of

football statistician, guidance coordinator, and computer coordinator were excluded by a contract

providing that the unit include personnel who have "no administrative or supervisory responsibili-



996 INDIANA LAW REVIEW [Vol. 27:989

A 1989 statutory amendment presumably answered the narrow question of
whether a head coach is excluded from the bargaining unit."*^ The amendment

altered the definition of supervisors by deleting the language "[s]upervisors shall

include, but not be limited to" and replacing it with "[t]he term includes." The

statute lists the specific job titles excluded as superintendents, assistant

superintendents, business managers and supervisors, directors with school

corporation-wide responsibilities, principals and vice principals, and department

heads who have responsibility for evaluating teachers."*^ If courts apply the
latin maxim of statutory construction expressio unius exclusio alterius est, they
will include head football and basketball coaches in teacher bargaining units,

while excluding the school-wide athletic director. However, the amendment does

not address the problematic question of how to determine supervision.
The courts have upheld the Board's broad reading of the term "school

employer" in the Act. A special services unit qualified although it provided
special education services to six school corporations and two state hospitals."^

In addition, a joint Indiana-Ohio school district formed to operate an elementary

school at the border qualified as a school employer."*^ Similarly, the courts

have held that the term "school employee organization" includes one local union

that represents bargaining units from three different school corporations."*^

The courts have deferred to the Board in its expertise as an administrative

agency charged with conducting representation elections. In one case, the court

refused to review a Board order directing a third runoff election between rival

Association and Federation contenders."^^ The courts have reversed the Board

where it attempted to direct an election without regard to an election contract that

predated the Act."*^

ties," and holding that school board had no obligation to file petition for unit determination as to

these three positions).

42. Pub. L. No. 3, § 118, 1989 Ind. Acts 180.

43. iND. Code § 20-7.5-l-2(h) (1993).
44. Madison Area Educ. Special Serv. Unit v. Indiana Educ. Employment Relations Bd.,

483 N.E.2d 1083 (Ind. Ct. App. 1985).

45. Union County Sch. Corp. Bd. of Sch. Trustees v. Indiana Educ. Employment

Relations Bd., 471 N.E.2d 1191 (Ind. Ct. App. 1984).

46. Northwest Ind. Educ. Ass'n v. School City of Hobart, 503 N.E.2d 920 (Ind. Ct. App.

1987) (the question of whether a multi-employer bargaining unit would be certified under the Act

was not at issue).

47. Scott County Fed'n of Teachers v. Scott County Sch. Dist., 496 N.E.2d 610 (Ind. Ct.

App. 1986) (holding that an order directing a third election was not a final order for purposes of

the State Administrative Adjudication Act and that a departure from exhaustion requirement was

not warranted in the absence of irreparable harm). In Scott, the court was called on to resolve a

conflict between a Board regulation providing for a runoff election between the two highest vote

getters and a statutory requirement that the election ballot must include the choice "No Represen-

tative." In two previous runoff elections among three choices (Association, Federation, and No
Representative), no option received a majority of the votes. In the order contested here, the

Board deleted the option "No Representative" from the ballot for the third runoff election.

48. South Bend Fed'n of Teachers v. National Educ. Ass'n—South Bend, 389 N.E.2d 23



1994] TEACHER BARGAINING 997

The Board's regulations permit it to determine the appropriate bargaining

unit in the absence of an agreement between the parties."*^ A majority of all the
employees in the appropriate unit must vote in favor of representation; no school

organization will be certified merely as the result of a majority vote of those

present and voting.^"

III. The Scope of Bargaining Under the Act

Indiana has a unique approach to the scope of teacher bargaining. Ordinarily,

an employer and employee union will bargain over mandatory subjects of

bargaining, characterized in the private sector as "rates of pay, wages, hours of

employment, or other conditions of employment."^' A mandatory subject of
bargaining is one over which the employer must bargain or risk liability in an unfair

labor practice proceeding.^^ Any agreement on a mandatory subject of bargaining
may be reduced to contract language, and the subsequent contract will be
enforceable. Permissive subjects of bargaining are those subjects over which an

employer may choose to bargain but has no statutory obligation to do so.^^ An
employer may refuse to even discuss a non-mandatory or permissive subject of
bargaining and its refusal will not result in unfair labor practice liability. However,

if the employer agrees to discuss a permissive subject and reaches agreement on a

contract provision regarding that subject, the contract will be fully enforceable and

a proper subject for grievance arbitration.^'* The final category is the illegal

(Ind. App. 1979) (holding that a Board order unconstitutionally impaired the contractual rights of

the exclusive bargaining representative under an election agreement dating back to 1972). In

South Bend, the court also held that a Board hearing examiner report may have res judicata effect,

and may collaterally estop a future case on the same issue before the Board. The court did not

require the NEA-South Bend to exhaust administrative remedies before the Board because the

Association might suffer irreparable harm. See Harold Greenberg, Administrative Law, 1980

Survey of Recent Developments in Indiana Law, 14 iND. L. Rev. 65, 75 (1981) for a more

complete discussion.

49. iND. Code § 20-7.5- 1-1 0(a)(2) (1993). This section also provides that the Board
shall consider, but not be limited to considering "(i) efficient administration of school operations;

(ii) the existence of a community of interest among school employees; (iii) the effects on the

school corporation and school employees of fragmentation of units; and (iv) recommendations of

the parties involved." A teacher bargaining unit that is less than a wall-to-wall school corporation
unit is virtually unheard of. Thus, the statutory criteria appear to be superfluous. They have

more application to a general public employee bargaining statute.

50. For the Board's regulations on election proceedings see Ind. Admin. Code tit. 560, §
2-1-1 to -6-9 (1992). The procedure is substantially the same as that provided in the NLRA and
other public employee bargaining laws. H.T. Edwards et al.. Labor Relations Law in the
Public Sector 160-253 (3d ed. 1985).

51. National Labor Relations Act, 29 U.S.C.A. § 159 (1988).

52. Developments in the Law—Public Employment, 97 Harv. L. Rev. 1611, 1684-87
(1984) [hereinafter Harvard Note].

53. See generally 1 The Developing Labor Law 851-954 (Patrick Hardin et al. eds., 3d
ed. 1992).

54. Harvard Note, supra note 52, at 1685.



998 INDIANA LAW REVIEW [Vol. 27:989

subject of bargaining. Either for reasons of public policy or based upon other law,

certain subjects are removed entirely from the scope ofallowable bargaining. If the

parties agree to a contract provision incorporating an illegal subject of bargaining,

a reviewing court may declare that provision void and unenforceable.^^
Indiana does not follow this traditional pattern. Instead, it has established

three categories: mandatory subjects of bargaining, mandatory subjects of

discussion, and illegal subjects of bargaining. There is no purely permissive

category of bargaining subjects. In general terms, section 4 of the Act specifies

that "salary, wages, hours, and salary and wage-related fringe benefits" are

mandatory subjects of bargaining.^^ The term "bargain collectively" is defined

as "the performance of the mutual obligation of the school employer and the

exclusive representative to meet at reasonable times to negotiate in good faith

with respect to items enumerated in section 4 of this chapter and to execute a

written contract incorporating any agreement relating to such matters."^^ The

duty to bargain does not require that either party agree to a proposal or make a

concession. Moreover, it does not require that the parties ratify a contract, but

contracts are binding only if properly ratified.^^

Section 5 defines subjects of discussion as "[w]orking conditions, other than

those provided in section 4 . . . [c]urriculum development and revision,

[tjextbook selection, [t]eaching methods, [h]iring, promotion, demotion, transfer,

assignment, and retention of certificated employees, and changes to any of the

requirements set forth in I.C. 20-6.1-4, [sjtudent discipline, [ejxpulsion or

supervision of students, [pjupil-teacher ratio, [cjlass size or budget appropria-

tions."^^

Section 6(b) describes the areas of management prerogative which are not

bargainable:

School employers shall have the responsibility and authority to manage

and direct in behalf of the public the operations and activities of the

school corporation to the full extent authorized by law. Such responsi-

bility and activity shall include but not be limited to the right of the

school employer to:

(1) direct the work of its employees;

(2) establish policy through procedures established in sections

4 and 5 of this chapter;

55. Id.

56. IND. Code § 20-7.5-1-4 (1993).
57. iND. Code § 20-7.5-l-2(n) (1993).
58. Id.

59. iND. Code § 20-7.5-l-5(a) (1993) as amended by Ind. Pub. L. 105-1992 (effective

July 1, 1992). Prior to this amendment, exclusive representatives could discuss "selection,

assignment, or promotion of personnel" instead of "hiring, promotion, demotion, transfer,

assignment, and retention of certificated employees."



1994] TEACHER BARGAINING 999

(3) hire, promote, demote, transfer, assign, and retain employ-

ees through procedures established in sections 4 and 5 of this

chapter;

(4) suspend or discharge its employees in accordance with

applicable law through procedures established in sections 4 and

5 of this chapter;

(5) maintain the efficiency of school operations;

(6) relieve its employees from duties because of lack of work

or other legitimate reason through procedures established in

sections 4 and 5 of this chapter; and

(7) take actions necessary to carry out the mission of the

public schools as provided by law.^"

While the substance of certain decisions is reserved to management, the

procedures through which management effectuates the decisions are subject to

either negotiation or discussion.

A. The Grandfather Clause

The line between subjects of bargaining and subjects of discussion is blurred

by a provision in section 5 which grandfathers certain agreements between

teachers and school corporations predating the Act: "[A]ny items included in the

1972-1973 agreements between any employer school corporation and the

employee organization shall continue to be bargainable."^' The courts have had

an opportunity to consider the argument that this grandfather clause applies only

to those topics of bargaining listed in section 5 as mandatory subjects of

discussion.^^ In Northwestern School Corp., the employer argued that the

school calendar was not a mandatory subject of bargaining because it was a

matter committed to school corporation discretion under section 6 of the Act.^^

It argued that the court should apply the ejusdem generis doctrine.^"* The court

refused, and instead decided that the grandfather clause could apply to "any

items,"^^ in accordance with the plain, ordinary meaning of the term.

60. IND. Code § 20-7.5-1 -6(b) (1993).
61. iND. Code § 20-7.5-l-5(a) (1993).
62. Northwestern Sch. Corp. of Henry County Bd. of Sch. Trustees v. Indiana Educ.

Employment Relations Bd., 529 N.E.2d 847 (Ind. Ct. App. 1988), trans, denied, Jan. 9, 1989.

63. Id. at 852; See Eastbrook Community Sch. Corp. v. Indiana Educ. Employment

Relations Bd., 446 N.E.2d 1007 (Ind. Ct. App. 1983) (holding that the school calendar is a matter

of educational policy and is a non-negotiable, managerial decision).

64. Using this canon of statutory construction, a general term at the end of a more

specific statutory list is construed to refer to only things of like kind or category in the specific

list.

65. Northwestern, 529 N.E.2d at 851. However, citing Eastbrook, the court also

determined that certain calendar items would not be negotiable in deference to the fact that "the

calendar's effect on students and other public interests outweighed the private interests of



1000 INDIANA LAW REVIEW [Vol. 27:989

Moreover, the court determined that for purposes of the grandfather clause,

the word "agreement" did not necessarily mean a formal written contract.
Instead, the court again used the plain language rule of statutory construction to

hold that an agreement does not have to be in writing.^^ An exclusive
representative need only prove a meeting of the minds of two parties and mutual

intent regarding their respective rights and duties. The court held that under the

law of contracts, the trier of fact must determine from all the circumstances

whether an agreement came into being.^^

This decision casts a considerable cloud over the geography of bargaining

in Indiana. The question that it leaves open is whether an illegal subject of

bargaining may become a mandatory subject of bargaining under the grandfather
clause. For example, in Eastbrook, the court appeared to hold that the school

calendar was an illegal subject of bargaining; it concluded that the school

calendar falls exclusively within a school corporation's managerial prerogative

under section 6(b), a prerogative that the school corporation may not bargain
away under section l(d)(iii) of the Act.*** As the law now stands, the grandfa-
ther clause is not limited to subjects of discussion. Instead, it may grandfather

bargaining subjects that would otherwise be entirely committed to school

corporation discretion under section 6.^^ The Indiana Supreme Court has not

given the lower courts any guidance in this area.

This reading essentially negates a portion of the language of section 3 of the

Act: "No contract may include provisions in conflict with (a) any right or
benefit established by federal or state law, ... or (c) school employer rights as

defined in section 6(b) of this chapter."^" In addition, it ignores the declaration

of legislative intent providing that "the Indiana General Assembly has delegated

the discretion to carry out this changing and innovative educational function to

the local governing bodies of school corporations, composed of citizens elected

or appointed under applicable law, a delegation which these bodies may not and
should not bargain away."^' One of the classic rules of statutory construction

is that the court should read all the provisions of an act together and not read one

so as to render meaningless or ineffective another.^^ Had the legislature

intended the grandfather clause to apply to all subjects of bargaining, regardless

teachers." Id. at 852.

66. M. at 851.

67. Id.

68. Eastbrook Community Sch. Corp. v. Indiana Educ. Employment Relations Bd., 446

N.E.2d 1007, 1012 (Ind. Ct. App. 1983).

69. Cf. Board of School Trustees of the Gary Community Sch. Corp. v. Indiana Educ.

Employment Relations Bd., 543 N.E.2d 662, 668 (Ind. Ct. App. 1989) (observing that grandfather

clause applies only to those items which do not infringe on exclusive managerial prerogative of

school board).

70. Ind. Code § 20-7.5-1-3 (1993).
71. Ind. Code § 20-7.5-l-l(d)(iii) (1993).
72. E./,'., Dague V. Piper Aircraft Corp., 418 N.E.2d 207 (Ind. 1981).



1994] TEACHER BARGAINING 1001

of whether they are discussable or matters of management prerogative, the

logical place in the statute to put the grandfather clause would have been in

section 3, not section 5 of the Act.

B. Contracts that Create a Deficit

Another restriction on the scope of bargaining is Indiana's provision

invalidating contracts that create a deficitJ^ The Act defines "deficit financing"

as "expenditures in excess of money legally available to the employer."^"* One

court had an opportunity to interpret this section and held that to carry its burden

of proof, a school corporation had to demonstrate precisely where it implemented

budget cuts7^ A bald statement that the school corporation made all feasible
budget cuts was inadequate. Teacher salaries are part of the general fund, which

includes such items as equipment, maintenance, and extra-curricular activities.

The school corporation had the burden of proving that the teachers' contracts

themselves were the expense within the general fund which created the deficit.^^

The court rejected the exclusive representative's contention that the statute may

not impair previously existing legal contracts after rights have vested, reasoning

that the parties do not have an inviolable right to enter a multi-year contract, just

as they have no right to enter into an illegal contract.^^

Essentially, the Court of Appeals set up a procedure that is analogous to the

private sector treatment of an employer's bankruptcy. Under the National Labor

Relations Act, an employer may seek relief from collective bargaining

agreements in bankruptcy if it proves that it is financially unable to bear the

expense and the union refuses to modify the contract.^^ In other states, a school

73. IND. Code § 20-7.5-1-3 (1993), providing "[i]t shall be unlawful for a school
employer to enter into any agreement that would place such employer in a position of deficit

financing as defined in this chapter, and any contract which provides for deficit financing shall be

void to that extent and any individual teacher's contract executed in accordance with such

contract shall be void to such extent."

74. iND. CODE § 20-7.5- l-2(q) (1993).
75. South Bend Community Sch. Corp. v. National Educ. Ass'n - South Bend, 444

N.E.2d 348 (Ind. Ct. App. 1983) (citing with approval Philadelphia Fed'n of Teachers v. Thomas,

436 A.2d 1228 (Pa. Commw. Ct. 1981) (holding that Pennsylvania's statute requires school
boards to operate with a balanced budget, and, therefore, a collective bargaining agreement that

purported to have a two year term but caused a deficit in the second year represented a severable

contract with each year subject to a condition precedent, that is, that the funding of the contract

by independent legislative bodies, over which neither party had any actual control, would be

forthcoming). See Edward P. Archer, Labor Law, J983 Survey of Recent Developments in

Indiana Law, 17 iND. L. Rev. 245, 252-53 (1984).

76. South Bend, 444 N.E.2d at 352.

77. Id. at 353.

78. In re American Provision Co., 44 B.R. 907 (Bankr. D. Minn. 1984) (holding that the

employer or debtor-in-possession must make specific proposals to modify the contract; must meet

with the union at reasonable times to bargain in good faith; the union must have refused to accept

the proposals without good cause; and the balance of the equities must clearly favor rejection of



1002 INDIANA LAW REVIEW [Vol. 27:989

district that enters into a collective bargaining agreement that covers more than

one fiscal year assumes the obligation of seeking the funding to implement the

contract. If there is a budget shortfall, the school employer must make up the
missing funds through teacher layoffs, support staff layoffs, elimination of non-

mandatory educational programs such as extra-curricular activities, or similar

budget cuts.^^ On occasion, a school board will take the extreme step of
closing school before the statutory minimum number of student school days,
thereby forcing the state to take the school board to court.^" A court order
reopening school then justifies a new budget referendum. South Bend is the only

significant decision interpreting this provision of the Act.^'

C Contract Provisions in Conflict with State or Federal Law

Section 3 of the Act creates a final category of contract clause that may be
voidable. It provides that "[n]o contract may include provisions in conflict with

(a) any right or benefit established by federal or state law."^^ An early Indiana
case, Weest v. Board of School Commissioners of the City of Indianapolis^^

concerns a contract provision negotiated before the effective date of the Act.

However, the court cites the Act in dicta and examines whether the contract

provision in question actually conflicts with the Indiana General School Powers

Act.^'^ An individual teacher argued that her contribution of one of her
statutorily guaranteed sick leave days to a sick leave bank for other teachers was

contrary to state law. The bank would extend sick leave to teachers who had
exhausted their own accumulation. The court rejected this argument and
reconciled the sick bank provision with the statute. The court found no actual

conflict because the Association would pay teachers who need one additional day
after they have exhausted all their sick leave after the sick leave bank was

empty.

the collective bargaining agreement). See generally 2 The Developing Labor Law 1756-71
(Patrick Hardin et al. eds., 3d ed. 1992).

79. See generally Annotation, Right to Dismiss Public School Teacher on Ground That

Services Are No Longer Needed, 100 A.L.R.2d 1 141 (1989).
80. E.g., Butt V. State, 842 P.2d 1240 (Cal. 1992).

81. In Eastbrook Community Sch. Corp. v. Indiana Educ. Employment Relations Bd., 450

N.E.2d 1006 (Ind. Ct. App. 1983), the court deleted from its decision any reference to the

question of deficit financing. The court had in dicta observed that it could not compel the school

board to bargain with the Association for the purpose of reaching an agreement that might place

the employer in a position of deficit financing.

82. iND. CODE § 20-7.5-1-3 (1993).
83. 320 N.E.2d 748 (Ind. App. 1974).

84. iND. Code § 20-5-1 to -5-6 (1993).
85. But see Gary Teachers Union v. School City of Gary, 332 N.E.2d 256 (Ind. App.

1975) (collective bargaining may not reduce statutory minimum period for achieving tenure) and
commentary criticizing this decision in Edv^ard P. Archer, Labor Law, Survey of Recent Develop-

ments in Indiana Law, 10 iND. L. Rev. 257, 265 (1976). One may reconcile the Gary and Weest
decisions. The courts will accommodate bargaining to existing statutes whether these protect



1994] TEACHER BARGAINING 1003

Similarly, in school calendar cases, the courts have attempted to reconcile

statutory provisions with collective bargaining.^^ A statute on a subject which
is also bargainable or discussable does not automatically preclude bargaining or

discussion. Instead, the parties' final contract is voidable if it reduces a

minimum guaranteed statutory benefit or is contrary to some obligation or
authority committed to school corporation discretion.

D. The Scope of Bargaining and Impasse Procedures

The last general issue on the scope of bargaining that courts have considered

is procedural: how do the parties resolve a dispute over whether an item is
mandatory in the context of dispute resolution procedures such as mediation and

fact finding? In Blackford County School v. Indiana Education Employment

Relations Board,^^ the court held that a party could insist on a non-mandatory

subject of bargaining to fact finding. A party may present evidence to the fact
finder regarding a disputed subject of bargaining for a determination of whether

the issue is mandatory or discussable under the Act.^^ If the fact finder rules

on a non-mandatory or discussable subject, a court may overturn the fact finder's
award.^^ In addition, the school corporation may file an unfair labor practice
against the exclusive representative after the fact finding. The court and the

Board appear to rely on the consensual nature of fact finding and mediation to

protect a school corporation's prerogatives under the Act. As a practical matter,

a fact finder's report is not binding if rejected in a timely fashion.^" Thus, the

school employer is at little risk from an award on a discussable subject. The

teachers or other interest groups, such as school boards or the public. The tenure law balances

competing interests, and protects teachers as well as school districts and the public. Allowing

parties to bargain over the tenure period would deprive the public of the benefit of observing a

teacher's performance over an extended period of time.

86. See infra notes 108-32 and accompanying text.

87. Blackford County Sch. v. Indiana Educ. Employment Relations Bd., 519 N.E.2d 169

(Ind. Ct. App. 1988).

88. Id. at 174.

89. Cf. North Miami Community Corp. v. North Miami Educ. Ass'n, 500 N.E.2d 1288

(1986) (unpublished decision holding parties may agree to binding fact finding over discussable

subjects).

90. In Blackford, the employer argued that it incurred significant costs presenting

evidence on such items. This is not irreparable harm. However, the remedy available at the

Board after a fact finder's report has been issued does not seem adequate to prevent the recurrence

of the conduct. Typically, the Board could order that party to cease and desist from the unfair

labor practice. It is an open question whether the Board may order a party to pay money

damages. Moreover, even if the Board were to order money damages, it is not clear this would

provide an adequate deterrent. Lastly, the Board's regulations provide that a party may obtain

review of a fact finding report only by filing a request within two days after receipt of the report.

The request may be oral or in writing and must state the nature of the objection. The Board may

nevertheless refuse to review the fact finder's report or make additional findings and recommenda-

tions. The Board is obligated to act within ten days of receipt of the fact finder's report. Ind.

Admin. Code tit. 560, § 2-4-6 (1992).



1004 INDIANA LAW REVIEW [Vol. 27:989

general practice at the bargaining table appears to be open scope bargaining

under a reservation of the right to exclude the subject at a later time.^'

However, this practical approach seems to conflict with the language of the

Act. The Act provides: "A school employer shall discuss with the exclusive
representative of certificated employees, and may but shall not be required to
bargain collectively, negotiate, or enter into a written contract concerning or be

subject to or enter into impasse procedures on the following matters . . . ."^^

In Blackford, the school corporation argued that presenting evidence to a fact

finder regarding a disputed subject of bargaining violated this provision of the

Act. The court disagreed and ruled that, while the fact fmder may not render an
award on a prohibited subject, she had the power and jurisdiction to hear

evidence on a prohibited subject under the liberal rules of evidence for informal

administrative proceedings.^^

The court tacitly approves of delegating to fact finders the duty to determine

the scope of bargaining. The Board has directed fact finders to accept

documents, hear arguments, and consider briefs concerning whether or not the

fact finder has jurisdiction on the items on dispute. The Board will direct the

fact finder to make an initial determination on whether subjects of bargaining

which would otherwise be discussable are grandfathered as bargainable under the

Act's grandfather clause. However, the Act uses unusual language in excluding

discussable items from impasse procedures. The employer "shall not be required

to bargain collectively ... or be subject to or enter into impasse procedures''^"^

on the subjects. The plain language of the Act appears to bar any consideration

by the fact finder of a non-mandatory or discussable subject. In Blackford, the

Board did offer the parties a bifurcated hearing before the fact finder, first on

discussable subjects, then on the merits.^^ The parties rejected it. Another

alternative would be an expedited hearing before a different Board agent on the

scope of bargaining. The Board has rejected this alternative. However, if

Indiana adopts binding interest arbitration, this issue may warrant reexamination.
In other states, courts have enjoined impasse resolution procedures over non-

mandatory subjects of bargaining.'^^ In the private sector, the NLRB has held

9 1

.

This assertion is based on anecdotal evidence gathered in discussions with representa-

tives of the Board and experienced mediators on the Board's ad hoc panel of mediators and fact

finders.

92. IND. Code § 20-7.5-l-5(a) (1993).
93. Blackford County Sch. v. Indiana Educ. Employment Relations Bd., 519 N.E.2d 169,

174 (Ind. Ct. App. 1988).

94. iND. CODE § 20-7.5-I-5(a) (1993).
95. Telephone Interview with Donald Russell, Executive Director, lEERB (Mar. 1994).
96. E.g., Dunellen Bd. of Educ. v. Dunellen Educ. Ass'n, 72 CCH Lab. Cases p. 531 19

(N.J. Super. 1973), and see generally James D. Lawlor, Annotation, Validity and Construction of

Statutes or Ordinances Providing for Arbitration of Labor Disputes Involving Public Employees,

68 A.L.R.3d 885 (1976).



1994] TEACHER BARGAINING 1005

that it is an unfair labor practice to insist to impasse upon a nonmandatory

subject.^^

IV. School Calendar

In Indiana teacher bargaining, the most litigated bargaining subject is the

school calendar.^* The Act's language creates the problem by providing in

Section 4 that teacher hours are a mandatory subject of bargaining, while Section

5 makes working conditions other than those listed in Section 4 mandatory

subjects of discussion but does not specifically refer to the student school day or

the student or teacher school year. In addition. Section 6 gives school employers

the responsibility and authority to manage the schools to the full extent

authorized by law but does not refer to the student school year, student school

day, or school calendar. Instead, it gives the school employers the right to

"establish policy,"^^ and to "take actions necessary to carry out the mission of

the public schools as provided by law"^"*' through "procedures established in

sections 4 and 5 of this chapter."'"'

Thus, in the early days of the Act, teachers contended that the school

calendar and school year represented teacher hours and were mandatory subjects

of bargaining. On the other hand, school corporations contended that they were
matters of school or educational policy and not bargainable. They also cited the

intention of the Indiana General Assembly'"^ and section 3 of the Act which

provided that "[n]o contract may include provisions in conflict with (a) any right

or benefit established by federal or state law."'"^ As is the case with most

states, Indiana statutorily defines the minimum mandatory school term as nine

months. '''^ The student instructional day is defined as a minimum of five hours
of instructional time in grades one through six and six hours of instructional time

in grades seven through twelve.'"^ In addition, the school corporation must

conduct at least 180 student instructional days.'"^ Indiana also requires that the

97. E.g., NLRB v. Wooster Div. of Borg-Wamer Corp., 356 U.S. 342 (1958) and see
generally Hardin, supra note 53, at 604-07.

98. Indiana is not alone in this. See Deborah Tussey, Annotation, Bargainable or

Negotiable Issues in State Public Employment Labor Relations, 84 A.L.R.3d 242, 306-09 (1978).

99. IND. Code §§ 20-7.5-1 -6(b)(2) & -6(b)(7) (1993).
100. iND. Code § 20-7.5-1 -6(b)(7) (1993).
101. iND. Code § 20-7.5-1 -6(b)(2), (3), (4), (6) (1993).

102. The preamble to the Act provides that the legislature "delegated the discretion to

carry out this changing and innovative educational function to the local governing bodies of the

school corporations, composed of citizens elected or appointed under applicable law, and a

delegation which these bodies may not and should not bargain away." iND. Code § 20-7.5-1-

l(d)(iii) (1993).

103. iND. Code § 20-7.5-1-3 (1993).
1 04. iND. Code § 20- 1 0. 1 -2-2 ( 1 993).
105. IND. Code § 20- 10. 1-2- 1(b) (1993).
106. iND. Code § 20- 10. 1-2- 1(c) (1993). If the school corporation fails to conduct the



1006 INDIANA LAW REVIEW [Vol. 27:989

school corporation include the school term in each individual teacher con-

tract.'"^

None of these provisions dictates the precise date upon which school must
start or end. Moreover, before the Act's passage there was broad variation in

practice across the state on whether the school corporation and teacher exclusive

representative discussed or bargained school calendar. Predictably, the tangle of

statutes and the grandfather clause gave rise to a series of disputes when teachers

sought to bargain both pay and work schedules in response to school closings in

weather emergencies. The earliest reported case involved the Monroe County

Community School Corporation.'"^ It arose when the corporation unilaterally

delayed the starting date of school after negotiating the collective bargaining

agreement and then prorated teachers' salaries based upon the reduced number

of work days in the calendar year. Teachers brought suit to recover the lost pay

and prevailed. The school board counterclaimed for alleged overpayments from

previous school years where teachers had worked more than 1 80 school days and

been paid accordingly. The court denied the counterclaim. It did not address

the unfair labor practice question arising out of the unilateral change in the

calendar.

That issue was squarely presented in Eastbrook Community Schools Corp.

V. Indiana Education Employment Relations Board. '"^ In Eastbrook, the Board

had concluded that the school corporation committed an unfair labor practice

when it refused to bargain over the school calendar. The school corporation's

provision ensuring that teachers would not be required to work in excess of 177

days was inconsistent with the individual teacher contracts wherein teachers

agreed to teach for 180 days within the 1978-79 school year. The Association

demanded to bargain and the Board held that the number of teacher days, make

up days, and the pay for such days are all mandatory bargainable items under

Section 4 of the Act.""

On appeal, the court held that the provision's language did not change the
total number of teacher hours or work days. It also held the school corporation

had no duty to bargain over the scheduling of days because the subject falls

requisite number of student instructional days, it will lose its state funding by a proportional

amount. iND. CODE § 20- 10. 1-2- 1(d) (1993).
107. iND. Code § 20-6.1-4-3 (1993). The contract must contain the "(A) the beginning

date of the school term as determined annually by the school corporation; (B) the number of days

in the school term as determined annually by the school corporation; (C) the total salary to be

paid during the school year; and (D) the number of salary payments to be made during the school

year."

108. Monroe County Community Sch. Corp. v. Frohliger, 434 N.E.2d 93 (Ind. Ct. App.

1982).

109. 446 N.E.2d 1007 (Ind. Ct. App. 1983). See Janet L. Land, Teacher Collective

Bargaining, 19 iND. L. Rev. 235 (1986), and Archer, supra note 75, at 251-52 for additional

discussion.

1 10. Eastbrook, 446 N.E.2d at 1007.



1994] TEACHER BARGAINING 1007

exclusively within a school corporation's managerial prerogative under Section

6(b)'" and Section l(d)(iii)"^ prohibits the school corporation from bargain-

ing this away. The court construed the statute prescribing contents of an

individual teacher contract as granting to a school board the discretion and

authority to determine the beginning date of the school term and, for those days

beyond the statutory minimum, to determine the number of days in the school

term. The minimum number of school days was neither discussable nor

negotiable."^ The court implied the power to determine the ending date of

school from the school corporation's exclusive authority to decide both the actual

number of days and the starting date of school. Although the court concluded

that the disputed clause did not have a direct and substantial impact upon

"salary, wages, hours and salary and wage related benefits," it acknowledged that

it did have an impact on "working conditions" and, thus, would be subject to

mandatory discussion.""*

The court considered an employer's duty to discuss the school calendar in

Union County School Corporation Board of School Trustees v. Indiana

Education Employment Relations Board}^^ The school corporation had a

practice of paying teachers extra compensation and issuing supplemental

contracts for make up days. In 1976-77, the school corporation closed school

for eighteen days due to inclement weather and paid teachers for each of these

days plus three make up days. During the 1977-78 school year, it closed school

for nineteen days, required teachers to make up seven of these days, but paid

them no extra compensation. The Association did not then demand either to

bargain the change in past practice or to discuss it. Moreover, the court never

directly addressed the issue of whether this failure to demand bargaining or

discussion represented a waiver.

In December of the 1978-79 school year, the school board adopted a policy

that one elementary school would remain open as long as Ohio school buses

were running. This meant that teachers at this school (operated jointly with an

Ohio school corporation) worked six days during which the rest of the Union

County Schools were closed. The Association filed an unfair labor practice

complaint alleging that the school corporation unilaterally changed pay

procedures for make up days. The Board held that the school corporation had

failed to bargain or discuss the scheduling of make up days and its school

closing plan. The Board ordered it to cease and desist and to pay teachers

supplemental wages.
"^

111. IND. Code § 20-7.5-1 -6(b) (1993).
1 12. iND. Code § 20-7.5-1 -l(d)(iii) (1993).
1 13. Eastbrook, 446 N.E.2d at 1012.

114. M. at 1013-14.

115. 471 N.E.2d 1191 (Ind. Ct. App. 1984).

116. Mat 1195.



1008 INDIANA LAW REVIEW [Vol. 27:989

Citing Eastbrook, the court held that scheduling make up days which do not

affect the total number of hours or days that teachers teach is a subject within

the managerial prerogative of the school board under Section 6(b) of the

Act."^ Since teachers contracted to teach 182 days, and scheduling did not

affect the number of days or hours but only the timing of these days, there was

no violation of the duty to bargain in good faith. On the past practice concern-
ing supplemental contracts and additional wages for make up days, the court

held there was no unilateral change in a mandatory subject of bargaining. The

court did not distinguish between payment under a past practice and scheduling.

It dismissed the past practice charge on the theory that scheduling the school

calendar is an illegal subject of bargaining."^

Another way to handle the school calendar issue is to distinguish between

the managerial prerogative to reschedule emergency days and its impact upon

wages and conditions of employment."^ Where teachers have agreed upon an

annual salary in exchange for a specific number of school days, as long as

rescheduling does not affect the total number of school days worked, there is no

impact on wages or bargainable conditions of employment. However, a distinct

analytical question is presented where the employer has conferred an economic

benefit by past practice. A past practice of paying wages is independently a
mandatory subject of bargaining. This is true even where the employer

voluntarily instituted the past practice and was not obligated to pay the

funds. '^" The court did not distinguish between the initial obligation to pay as

a matter of law and the creation of a past practice.'^'

117. Mat 1196-97.
1 18. "Relevant to our decision that school officials are not allowed to bargain away their

duty to determine the school calendar is the following .... If the Union Elementary School

Employers' past practice of paying Union Elementary teachers extra for make up days is allowed

to make this a mandatory bargainable subject, it may greatly inhibit the Joint Board in its

scheduling of the school calendar. This could adversely affect the other non-teaching interests

referred to in the Eastbrook opinion. Consequently we hold that the school Employers' past

practice of paying the teachers extra did not elevate the subject of make up days to mandatory

bargainable status." Id. at 1197-98 (emphasis added).

1 19. See generally Tussey, supra note 98, at 306-09.

120. The traditional example from the private sector is the Christmas ham or turkey. An
employer has no obligation under wage and hour laws to provide employees either with a

Christmas bonus or with some tangible benefit in lieu of a cash bonus during the holidays.

However, once an employer voluntarily undertakes to confer this benefit and does so as a matter

of established and consistent past practice, the employer may not alter the practice without

bargaining. See Hardin, supra note 53, at 864-67.

121. The outcome on a traditional analysis would not necessarily change. Specifically, the

court fails to address the question of waiver. Under traditional doctrine, upon receiving notice

that an employer has changed or intends to change a past practice, the exclusive bargaining

representative has a legal obligation to demand bargaining. Its failure to make a timely specific

demand to bargain may later estop the union from complaining about the change in practice. See

Hardin, supra note 53, at 708-10. In Union, it appears that the employer failed to or refused to

pay additional compensation during the 1977-78 school year. The union did not make a timely



1994] TEACHER BARGAINING 1009

More peculiar is how the court then handled the duty to discuss under
Section 5 of the Act. The court agreed with the Board that scheduling make up
days and the school closing plan represented working conditions which were

mandatory subjects of discussion. Relying on the statutory definition of

"discuss" as "the performance of the mutual obligation of the school corporation

through its superintendent and the exclusive representative to meet at reasonable

times,"*^^ the court held that the employer had an obligation to initiate discus-

sion in 1977-78 when it changed its past practice of paying supplemental wages.

The court appeared to impose the obligation to initiate on the party who has the
most information. Because the employer was aware of the change in pay, it had

the duty to initiate discussion. Since discussion is analogous to bargaining, one

would expect the duty to arise only in response to a request. '^^ The court also

concluded that the Association, not the school corporation, had the duty to

initiate discussion on the school closing plan for the 1978-79 school year, since

teachers were aware that the past practice had been changed. The court

concluded, "[a]ny other rule, such as one requiring school boards to discuss,

prior to adoption, any policy affecting 'working conditions' is manifestly

unworkable in a school situation."'^"* This shifting duty to initiate discussion

is equally unworkable.

In 1987, the Indiana Legislature amended the school closing statute

presumably in response to the school calendar litigation. '^^ In two cases.

demand to bargain, and in fact did not protest until April 1979, ten months after the school

coiporation had changed its past practice of paying supplemental wages. In the absence of any

evidence that the parties were discussing this dispute on a continuous basis, the usual outcome

would be a holding that the union had waived its right to bargain.

122. IND. Code § 20-7.5-l-2(o) (1993).
123. The court could have used the more traditional notions of notice and waiver.

Specifically, instead of placing the burden to initiate discussion on employers because the

employer had the information regarding the change in paying supplemental wages, under the

traditional approach a court would look to whether the teacher union as exclusive representative

was on notice that the employer had changed its practice. For example, if individual teachers did

not receive supplemental wages in 1977-78, but the union was not made aware of this change in

past practice, there is no waiver, and the union may demand bargaining and, by analogy, discus-

sion when it becomes aware of the change. In terms of imputing knowledge or notice of the

change, courts or labor agencies will examine whether an individual teacher who did not receive
pay was, for example, an officer in the union or a union steward.

124. Id. at 1199. For a decision regarding the Association's request for discussion, see

Tippecanoe Educ. Ass'n & Board of Sch. Trustees of the Tippecanoe Sch. Corp., 1990 Ind. Ed.
Emp. Rel. Bd. Ann. Rep. 69 (1990).

125. Ind. Pub. L. 390-1987, § 7, amending iND. Code § 20-6.1-5-9(a). The statute as
amended provides "If during the term of the teacher's contract: (1) the school is closed by the

order of the: (A) school corporation; or (B) health authorities; or (2) school cannot be conducted

through no fault of the teacher; the teacher shall receive regular payments during that time.

However, whenever a canceled student instructional day (as defined in IC 20-10.1-2-1) is

rescheduled to comply with IC 20-10.1-2-1, each teacher and (notwithstanding IC 20-9.1-3-5)

each school bus driver shall work on that rescheduled day without additional compensation."



1010 INDIANA LAW REVIEW [Vol. 27:989

teacher associations contended that the previous school closing statute actually

required school corporations to pay teachers additional compensation for

rescheduled days. In Halley v. Board of School Trustees of the Blackford

County School Corp.,^^^ the court rejected this argument holding that if the

legislature had intended teachers to receive additional compensation, it could

have included such a provision in the statute. '^^ The amendment now makes
additional compensation for rescheduled school days an illegal subject of

bargaining.
'^^

There are two cases in which courts have considered the question of school

calendar in connection with the grandfather clause. '^^ The courts have

concluded that the following subjects may be rendered mandatory subjects of
bargaining by virtue of the statutory grandfather clause:

a. The initial reporting dates for teachers;

b. The dates when no students attended but teachers reported for

work;

c. The length of the grading periods;

d. The dates when students would be in school for one-half day but

teachers would attend for a full day (the portion when teachers, but

not students, are present must be bargained); and,

e. The existence and scheduling of Teacher Days (to the extent they

are not also student days).'^"

In Highland, the following subjects also were grandfathered: (1) the total num-

ber of instructional days in the school year; (2) the total number of teacher work

days; (3) the length of grading periods at various academic levels of six weeks

126. 531 N.E.2d 1182 (Ind. Ct. App. 1988).

127. Id. at 1185. The court harmonized the school closing law with Ind. Code § 20-6.1-

4-3, which prescribes the contents of individual teacher contracts, but does not require a definite

ending date for the school year. Id. at 1 1 86.

128. Id. at 1187. As the court observed, "The amendment foreclosed that option." See

also Springs Valley Teachers Ass'n v. Board of Sch. Trustees of Springs Valley Community Sch.,

No. 47A01-8911-CV-473 (filed May 29, 1990, marked "not for publication"). In Springs Valley,
the court rejected a demand for extra pay when teachers made up a day after snow cancellation,

although the make up day was not a student instructional day. Teachers argued that the 1987

amendment emphasized that made up instructional days must be served without additional

compensation. Using negative implication, teachers argued that school corporations must

compensate them for days made up for purposes other than instruction. The court rejected the

argument, citing Halley, and reasoning that the question of paid or make up days was entirely a

matter of contract; the collective bargaining agreement in question did not require an extra day's

pay for the additional availability occasioned by a snow cancellation day.

129. Northwestern Sch. Corp. of Henry County Bd. of Sch. Trustees v. Indiana Educ.

Employment Relations Bd., 529 N.E.2d 847 (Ind. Ct. App. 1988); Indiana Educ. Employment

Relations Bd. v. Highland Classroom Teachers Ass'n, 546 N.E.2d 101 (Ind. Ct. App. 1989).

130. Northwestern Sch. Corp., 529 N.E.2d at 852-53.



1994] TEACHER BARGAINING 1011

or nine weeks; (4) the dates when grades are due; (5) the date and use of the last

day of teacher attendance.'^'

Relying on Eastbrook, the courts held that certain subjects are illegal

subjects of bargaining with respect to the calendar and cannot be grandfathered:

(1) the date of the first day of school; (2) the use of the days in which students

would be in school for one-half day but teachers would attend for a full day (the

portion when students are present); (3) the starting and ending dates of

Christmas break and spring break; (4) the scheduling of holiday breaks or

recesses; (5) the closing of schools for ISTA Conference on Instruction; (6) the

date of the last day of student attendance; (7) the date of Band Day; (8) the

existence of teacher days to the extent they are also student days; (9) school

enrollment for half-days.'"'^

The lEERB decisions affirmed by the Court of Appeals in Highland and
Northwestern appear inconsistent with respect to the treatment of half days.

However, the Highland and Northwestern cases are reconcilable. Both decisions

require that determining the dates of half days be left to the managerial power

of the school board. Northwestern merely requires the school board negotiate

the use and date of the portion of the half-day when the students are not present,

and Highland only requires negotiation as to the portion of the day when

students are not present.

V. Teacher Evaluation

The courts twice have had occasion to determine whether teacher evaluation

procedures represent mandatory subjects of bargaining or discussion.
'^^

In

Evansville-Vanderburgh, the court upheld the Board's ruling that evaluation

represents a mandatory subject of discussion under Section 5, reasoning that it

falls within the plain and ordinary meaning of the phrase "working condi-

tions."'^"^ Since there was a total failure to discuss the plan, the court held that

the presence of good or bad faith was irrelevant. '^^ The school corporation

had committed an unfair labor practice. '^^ There is considerable debate in

other states over whether to treat evaluation as mandatory. Some states treat

evaluation procedures as mandatory but treat evaluation criteria as permis-
137

sive.

131. Highland, 546 N.E.2d at 103.

132. Id.; Northwestern, 529 N.E.2d at 852.

133. Board of Sch. Trustees of the Gary Community Sch. Corp. v. Indiana Educ.

Employment Relations Bd., 543 N.E.2d 662 (Ind. Ct. App. 1989); and Evansville-Vanderburgh

Sch. Corp. V. Roberts, 392 N.E.2d 810 (Ind. App. 1979), aff'd, 405 N.E.2d 895 (Ind. 1980).

134. Id. at 813-14.

135. Id. at 814.

136. See Archer, supra note 5, at 423 for a more complete discussion. For a more

detailed discussion of the committee issue, see infra notes 179-216 and accompanying text.

137. See Joan Payne, What Public Employee Relations Boards and the Courts are



1012 INDIANA LAW REVIEW [Vol. 27:989

In Board ofSchool Trustees of the Gary Community School Corp. v. Indiana

Education Employment Relations Board, the school corporation unilaterally

implemented a new teacher evaluation procedure which required that instruction-

al supervisors make written evaluations of teachers. Teachers demanded to

bargain about the change, alleging that the policy was grandfathered under

Section 5 of the Act as a mandatory subject of bargaining.
'^^ The question of

supervisors producing written evaluations of teachers had a long history in Gary,

having been the subject of disputes in 1967 and in 1971. As a result, the court

concluded that the union had proven that the local conditions and practices

clause represented an agreement within the meaning of Section 5's grandfather

clause.
'^'^ The court rejected the school corporation's argument under Section

6(b) that this construction effectively prevents it from using new curricular and

teaching techniques and, thus, denies it the authority to effectively administer the

schools. While the court agreed that the grandfather clause only applies to those

items which do not infringe upon the school board's exclusive managerial power,

it concluded that the teacher evaluation plan represented a working condi-

tion.'^"

VI. Teacher Dismissal

There are two primary issues the courts have considered in connection with

teacher dismissal. One concerns the relationship between the teacher tenure law

and contractual provisions including grievance procedures. The other concerns

the appropriate role of the exclusive employee representative when the school

corporation notifies a teacher of potential non-renewal or termination of their

contract. In general, the courts have held that tenure laws prevail over collective

bargaining agreements. In addition, courts have tightly constrained the role of

the exclusive employee representative and, perhaps, inappropriately so. Recent

statutory amendments address both issues.

A. Collective Bargaining Agreements and the Tenure Laws

In Gary Teachers Union v. The School City ofGary,
^^^

the court held that the

Teacher Tenure Act (now Teacher Contracts Act)'"*^ prohibits awarding tenured

Deciding, 13 Rev. of Pub. Personnel Admin. Summer, at 58, 67 (1993). The article also

collects the recent literature on the scope of bargaining in the public sector.

138. Board of Sch. Trustees Of the Gary Community Sch. Corp. v. Indiana Educ.

Employment Relations Bd., 543 N.E.2d 662, 663 (Ind. Ct. App. 1989). The collective bargaining

agreement contained a local conditions and practice clause which purported to obligate the

employer to retain any fact written board and personnel policy covering a local working

condition.

139. /^. at 666-67.

140. Id. at 668 (citing Evansville-Vanderburgh Sch. Corp. v. Roberts, 405 N.E.2d 895,

898-99 (Ind. 1980)).

141. 332 N.E.2d 256 (Ind. 1975).

142. Ind. Code § 20-6.1-4-1 to -4-16 (1993).



1994] TEACHER BARGAINING 1013

status to a teacher before he or she meets the statutory requirements.''*^ A
collective bargaining agreement between the school corporation and teachers union

which purported to grant tenure to teachers after three years instead of the statutory

five years was "void as contrary to law."''^ The events took place before the

effective date of the Act. However, a number of other courts have concluded that

the Act is subordinate to the teacher tenure law on issues of teacher dismissal.
'"^^

By virtue of the tenure law, the court held in Worthington I that, under the Act, the
Board had the power to determine whether a school corporation had infringed upon

the right to form, join and assist in a school employee organization, but no power

to order reinstatement of non-tenured teachers who are non-renewed by the school
corporation.'"*^

In Jay School Corp. v. Cheeseman,^^^ the court held that a school corpora-

tion had the right to assign and transfer teachers under Section 6(b)(3), but that

right was subordinate to a teacher's right to a position under the tenure law.'"*^

The court relied on a teacher's statutory right to return after a leave of absence

in the absence of any termination of that teacher's contract.'"*^ In Board of

Trustees of Hamilton Heights School Corp. v. Landry,
^^^^

the court held that a

school corporation had authority to suspend, refuse to pay, and fine a permanent

teacher for two days for removing glossaries from the back of 146 science text

books.

Whether teacher dismissals could be submitted to binding grievance

arbitration was an issue squarely presented in Michigan City Education Ass 'n v.

Board of School Trustees of the Michigan City Area Schools
^'^^ where the

school corporation canceled a semi-permanent teacher's indefinite teaching

contract after an arbitrator issued an award ordering reinstatement with back pay

and full benefits. The Court of Appeals held that a teacher discharge may not

be the subject of binding arbitration under a collective bargaining agreement

because the policy considerations in the Act place undeniable limitations on the

scope of bargaining. '^^ Citing Section 3 of the Act, the court reasoned that no

collective bargaining agreement may include provisions in conflict with the

143. Gary, 332 N.E.2d at 260. It is common for courts to view public sector bargaining

as limited by preexisting civil service or tenure laws. See Deborah Tussey, Annotation, supra

note 98, at 260-66.

144. Id. at 258.

145. It was in part this reliance on the Tenure Act that occasioned the need for four

separate decisions in the Worthington-Jefferson dispute. See Worthington I, Worthington II,

Worthington III, and Worthington IV, discussed supra note 25.

146. Indiana Educ. Employment Relations Bd., v. Board of Trustees of Worthington-

Jefferson Consol. Sch. Corp., 355 N.E.2d 269, 274 (Ind. App. 1976).

147. 540 N.E.2d 1248 (Ind. Ct. App. 1989).

148. Id. at 1250.

149. Id. (citing Ind. Code § 20-6. 1-6- 1(a) (1984)).
150. 560 N.E.2d 102, 107 (Ind. Ct. App. 1990).

151. 577 N.E.2d 1004 (Ind. Ct. App. 1991).

152. Id. at 1006.



1014 INDIANA LAW REVIEW [Vol. 27:989

school employers' rights as defined in Section 6(b), which gives employers the

right to manage the schools including the right to "suspend or discharge its

employees in accordance with applicable law."'^^

Following the decision in Michigan City, the Act was amended to provide

in Section 6(b)(6) that a school corporation may release employees for legitimate

reasons "through procedures established in sections 4 and 5 of this chapter."'^"^

This amendment would appear to permit school employers and exclusive school

employee representatives to negotiate procedures for the cancellation of teacher

contracts, including procedures that supplement those found in the statute.
'^^

In addition, the Teacher Contracts Act now expressly authorizes binding
arbitration regarding teacher dismissals, and states that it "does not prohibit a

school employer and an exclusive representative from collectively bargaining

contracts that alter the requirements of IC 20-6.1-4-10, 10.5, 11, 12, 14 and IC

20-6.1-5-15."'^^ The quoted sections address the grounds and procedures for

dismissing or suspending teachers, but not the number of years of service

necessary to achieve tenure. Thus, it is an open issue whether the result in

Michigan City would be different were the issue relitigated.

B. The Role of the Exchisive Employee Representative

In Indiana Education Employment Relations Board v. Board of School

Trustees of Delphi Community School Corp.,^^^ the court considered a mixed

motive discharge: a school employer allegedly did not renew a teacher's contract

because of his role as President/Chief Spokesperson of the exclusive employee

representative and because of his activities on behalf of another teacher. After

the principal asked him to resign, a second non-tenured teacher went to the

Association President, a non-tenured teacher, for assistance. The two consulted

with the State Teachers Association and determined that no formal grievance

procedure was available. The second teacher continued to discuss the resigna-

tion request with the school principal. Moreover, the superintendent apparently

had informed the second teacher not to fight the resignation request, or he might

never get another teaching job.'^** The Association President, in a misguided

attempt to help, informed students that the teacher's job was in jeopardy and

asked them to tell their parents. He also contacted parents directly and asked
them to call school board members. This conduct provoked a strong response

from the school principal, who for the first time issued a negative evaluation of

153. Id. at 1007 (citing with approval Anderson Fed'n of Teachers v. Alexander, 416

N.E.2d 1327 (Ind. Ct. App. 1981) (holding that school corporations' sole authority for hiring and

firing teachers could not be restricted by collective bargaining)).

154. Ind. Pub. L. No. 105, 1992 Ind. Acts 2622 (effective July 1, 1992).

1 55. Ind. Code § 20-6. 1-4-11(1 993).
156. Ind. Pub, L. No. 105-1992 § 3, 1992 Ind. Acts 2618 (effective July 1, 1992).

157. 368 N.E.2d 1163 (Ind. App. 1977).

158. /^. at 1165.



1994] TEACHER BARGAINING 1015

the Association President and recommended his non-renewal. The school board

subsequently voted not to renew the Association President's contract.

The Board held that this constituted a violation of the Act because it

represented retaliation for concerted activity protected under Section 6(a).
'^^

In refusing to enforce the Board order of reinstatement, the court reasoned that

the Act did not protect the Association President's conduct. The court did not

apply the traditional standards used to consider mixed motive discharges in the

private sector. There were three possible motives for dismissal. First, his very

role as union President could serve as a basis for anti-union animus; as Chief

Spokesman in negotiations, he had been persistent in seeking information that he

felt was necessary for meaningful collective bargaining. Second, he represented

a teacher in an informal grievance to obtain a change in recommendation

concerning that teacher's non-renewal. Third, in pursuing that grievance, he

contacted students and parents, and inappropriately involved them in a personnel

dispute. Most courts would agree that this third category of conduct is not

protected by a bargaining law. However, in the private sector, representing a

coworker with an informal grievance would be protected.'^"

It is precisely the latter conduct that the court found to be unprotected in

Delphi}^^ The court held that the Act allows school employees to engage in

activities individually or in concert for purposes of furthering their rights under

the Act but does not confer upon an individual a right to use the exclusive

representative to address an individual grievance. '^^ It only permits an

employee to use the exclusive representative to further the best interests of all

members of the bargaining unit. The court reasoned that any other construction

of the Act would render meaningless language in section 2(o) which defines the

term "discuss."'^^ The court's decision turns on a conclusion that the non-

renewed teacher did not "petition" his school employer for any redress of

personal grievances.'^"* The court unduly limited the term "petition" to a

written formal request addressed to at least the superintendent of schools or

higher authority. '^^ However, it makes no formal finding on this point.
'^^

159. M. at 1164.

160. See Hardin, supra note 53, at 150-51 and cases cited therein.

161. Delphi, 368 N.E.2d at 1 168.

162. Id.

163. IND. Code §. 20-7.5- l-2(o) (1993). Specifically, the Act provides: "Neither the
obligation to bargain collectively nor to discuss any matter shall prevent any school employee

from petitioning the school employer, the governing body, or the superintendent for a redress of

the employee's grievances either individually or through the exclusive representative."

164. Delphi, 368 N.E.2d at 1 168.

165. Edward P. Archer, Labor Law, Survey of Recent Developments in Indiana Law, 12

iND. L. REV. 212, 217 (1979).

166. The term "petition" is defined in Ballantine's Law Dictionary, 944 (3d ed. 1969)
as "[a] formal request in writing addressed to one in a position of authority or to a body, such as

a municipal council, usually signed by a number of persons. An application. The name given in
some jurisdictions to the pleading by which the plaintiff in a civil action, whether in law or



1016 INDIANA LAW REVIEW [Vol. 27:989

In the private sector, it has long been the rule that an employer may not
discharge or discipline an employee for filing or processing a grievance, whether

pursuant to a formal contractual procedure or informally in the absence of such

a procedure. '^^ The NLRB and the federal courts developed the test in Wright
Line to determine whether the filing of grievances or other protected activity

motivated the employer's discipline. '^'^ Under Wright Line, the burden of proof

is on the employee to establish that protected conduct was one of the factors

motivating the employer's decision to discipline. '^^ The burden of proof then

shifts to the employer who must prove that it would have taken the same action
regardless of the employee's protected activity.'^*' The court in Delphi does

not use this shifting burden of proof to analyze the three potential motives for

dismissal. Instead, it lumps protected conduct (representation of another teacher)

together with other unprotected conduct (contacting students and parents on that

teacher's behalf). The court could have reached the same conclusion by citing

the latter inappropriate conduct as justifying the employer's action regardless of

the protected activity. This narrower rationale would have better recognized the

importance of the exclusive representative's role in informal grievance process-

ing.

The Delphi decision was followed five years later in Indiana Education

Employment Relations Board v. Carroll Consolidated School Corporation, Board

of School Trustees
}^^ The Association requested discussion with the school

corporation over an individual teacher's non-renewal. The school corporation

replied that it was not obligated to discuss non-renewal, but it would do so if the

teacher executed a "waiver of stigma," apparently designed to safeguard the

school corporation from any liability for damage to the teacher's reputation. The

teacher refused to execute the waiver; the school corporation subsequently

equity, sets forth his cause of action and invokes the jurisdiction of the court, [citation omitted]

In some jurisdictions, the pleading by the plaintiff in a special proceeding. The pleading which

seeks condemnation of property in a proceeding in eminent domain." It is doubtful what the

legislature had this technical meaning of the term in mind when it drafted this section of the Act.

More likely, the legislature intended that the word be given its plain meaning. An alternative
definition from Webster's Collegiate Dictionary, 721 (3d ed. 1931) is "[a] formal written

request, esp. one addressed to a sovereign or political superior," or the more common use of the
term "[a]ny formal asking or begging; a prayer; supplication; esp., a solemn request; . . . [t]hat

which is asked . . . ." Clearly, if the teacher was engaged in ongoing discussion with both the

principal and to some extent with the Superintendent of schools, he had indicated his desire to

•retain his job. This would certainly qualify under the ordinary understanding of request or

entreaty.

167. See HARDIN, supra note 53, at 150-51 and cases cited therein.

168. Wright Line, Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforcement

granted, 662 F.2d 899 (1st Cir. 1981), cert, denied, 455 U.S. 989 (1982). The Supreme Court

endorsed this test in N.L.R.B. v. Transportation Management Corp., 462 U.S. 393 (1983).

169. /d/. atll.

170. Id.

171. 439 N.E.2d 737 (Ind. Ct. App. 1982), reh'g denied, Oct. 26, 1982.



1994] TEACHER BARGAINING 1017

refused to discuss her non-renewal. The Board held that the school corporation

had committed an unfair labor practice.

The court set aside the Board's order, even though the Board had merely

recommended, not ordered, reinstatement. It held that the Act creates no

obligation for a school corporation to discuss individual personnel actions before

action is taken, reasoning there is ample provision in the law for grievance

procedures through which parties may subsequently discuss contested personnel
actions. '^^ The Association's argument that it had requested discussion on

behalf of all teachers in the bargaining unit was rejected for fear it would allow

the Association to bootstrap from an individual grievance to a discussion under

the Act of almost any issue. However, nowhere does the court find that a

grievance procedure existed in Carroll}^^ It found only the statutory right for

a teacher who has been non-renewed to appear after the fact before a school
corporation's governing body and present evidence and argument with assistance

of a representative.'^"*

Although Carroll and Delphi generally are cited for the same proposition,

the cases present two separate issues. Delphi addresses a mixed motive

discharge. The analytically separate issue presented directly in Carroll and

indirectly in Delphi concerns the right to a union representative. In the private

sector, these are referred to as Weingarten rights. '^^ Most courts that have

considered the issue under public employee bargaining laws have recognized a

right to a representative. '^^An employee may insist upon union representation

at an investigatory interview conducted by the employer which the employee

reasonably believes might result in disciplinary action against her.'^^ This is

protected concerted activity. To discipline an employee for refusing to cooperate

in the interview without a union representative is an unfair labor practice.
*^^

The modern Weingarten rule also guarantees union representation at a non-

investigatory interview if there is a reasonable basis to believe disciplinary action

will result. '^^ No union representative is required if the purpose of the
interview is merely to inform an employee of disciplinary action that is already

final."'"

172. Id. at 739.

173. See Archer, supra note 75, at 249-51 for a more complete discussion.

174. IND. Code § 20-6.1-4-14 (1993). However, the court acknowledged that the

amendment creating the right to a conference was not in effect at the time of the events in the

Carroll case.

175. These rights are spelled out in N.L.R.B. v. Weingarten, Inc., 420 U.S. 251 (1975) and

in International Ladies Garment Workers' Union v. Quality Mfg. Co., 420 U.S. 276 (1975).

176. See Larry D. Scheafer, Annotation, What Constitutes Unfair Labor Practice Under

State Public Employee Relations Acts, 9 A.L.R. 5th 20, 73-74 (1981).

177. Weingarten, 420 U.S. at 267.

178. See generally Hardin, supra note 53, at 151-58.

179. Certified Grocers of California, Ltd., 227 N.L.R.B. 1211 (1977).

180. See, e.g.. Baton Rouge Water Works Co., 246 N.L.R.B. 995 (1979).



1018 INDIANA LAW REVIEW [Vol. 27:989

Thus, it is consistent with Weingarten for a school board to refuse a union

representative at a meeting called simply to inform a teacher of its vote not to

renew. Arguably, Weingarten rights would not attach to a meeting between the

superintendent and the teacher in which the superintendent merely informs the

teacher of his or her final decision to recommend non-renewal. However, the

meetings that took place in Delphi occurred after a request for the teacher's

resignation; the employer was attempting to convince the employee to forfeit

employment voluntarily. This is distinct from informing the employee of a

decision to discipline. In discussions regarding resignation, the private sector

model would probably grant Weingarten rights to the employee. Clearly

discipline was threatened, but it was not a fiiit accompli.

Both Delphi and Carroll concerned the duty to discuss under the Act. The

court relied heavily on a reductio ad absurdum argument that if it recognized

a duty to discuss an individual grievance regarding non-renewal, it would open

the door to enforcing discussion over each and every individual personnel

decision.'^' Clearly, this is unworkable. However, the right to a union

representative is not that broad—it reaches only cases where discipline is
contemplated—and stems from general language in labor relations laws
recognizing employees' rights to form, join and assist unions. It is a rule

recognizing the unique vulnerability of an employee who faces possible
discipline. The court did not need to reach Section 5 and the scope of the duty

to discuss. It could have relied on traditional bargaining law language in Section

6(a). There is an appropriate role for the exclusive employee representative to

play in processing informal grievances and in assisting employees who face
discipline. Delphi and Carroll fail to recognize this role.

In a legislative end-run around this result, teacher lobbyists obtained passage

of an amendment that probably overrules Delphi and Carroll and provides that

a school employer shall discuss "[h]iring, promotion, demotion, transfer,

assignment, and retention of certificated employees, and changes to any of the

requirements set forth in I.C. 20-6.1-4."'^^ The open question is whether

courts will construe this language to require discussion of individual teacher

cases or only of conditions which affect the bargaining unit as a whole. This is

an area where a broader scope of mandatory bargaining would probably ease

administration of the Act.

181. Indiana Educ. Employment Relations Bd. v. Board of Sch. Trustees of Delphi

Community Sch. Corp., 368 N.E.2d 1163, 1168 (Ind. App. 1977); Indiana Educ. Employment

Relations Bd. v. Carroll Consol. Sch. Corp., 439 N.E.2d 737, 740 (Ind. Ct. App. 1982), reh'g

denied, Oct. 26, 1982.

182. Ind. Code § 20-7.5-1-5 (1993) (emphasis added) as amended by Ind. Pub. L. 105-

1992.



1994] TEACHER BARGAINING 1019

VII. School Committees

A final area where the Board and the courts have interacted concerns the
procedures through which the exclusive representative may discuss mandatory

subjects of discussion under Section 5 with the school corporation. In a trio of

cases, the Indiana courts have held that a school employer may establish a

committee to gather information and collect data on any subject, including

subjects that are bargainable or discussable."*^ However, where that committee

serves as the sole instrumentality for formulating a proposal to the school board,

the school corporation cannot exclude the exclusive representative from the

committee.'^'* Most commonly, these cases concern curriculum, a mandatory

subject of discussion in Indiana, but a nonmandatory subject of bargaining in
IKS

most states.

In Evansville-Vanderburgh 7,'^^ the Court of Appeals concluded that the

school corporation violated Section 7(a)(1) of the Act when it unilaterally

appointed the members of an evaluation committee formed to study and draft a

new teacher evaluation plan. By selecting the evaluation committee without

consultation, the court reasoned that the school corporation risked interfering

with or restraining school employees in their exercise of rights guaranteed in the

Act.'^^ The Court of Appeals concluded that, since employees have the right

to act in concert for the purpose of establishing or improving discussable

matters, the Association has the right to select the members of a committee

which performs a critical function in establishing policy concerning a discussable

matter.'^** According to the court, the committee entirely displaced the school

corporation's Section 5 obligation to discuss evaluation procedures.

The Indiana Supreme Court adopted in most respects the decision of the

Court of Appeals but issued independent instructions on this last point of

contention. In Evansville-Vanderburgh II, the court concluded that both the duty

to discuss and the right to confer are part of the Act and must be given effect in

accordance with the usual rules of statutory construction which direct that, if

possible, all provisions of a statute be given effect. '^^ The court held that

nothing in the statute would prohibit employers from conferring with any persons

they wish in order to gather and receive information.'^' Employers have the

183. Evansville-Vanderburgh Sch. Corp. v. Roberts, 395 N.E.2d 291 (Ind. App. 1979)

(Evansville-Vanderburgh /); Evansville-Vanderburgh Sch. Corp. v. Roberts, 405 N.E.2d 895 (Ind.

1980) (Evansville-Vanderburgh 11); Evansville-Vanderburgh Sch. Corp. v. Roberts, 464 N.E.2d

1315 (Ind. Ct. App. 1984) (Evansville-Vanderburgh III). For the case in its earliest incarnation,

see Evansville-Vanderburgh Sch. Corp. v. Roberts, 392 N.E.2d 810 (Ind. App. 1979).

184. Evansville-Vanderburgh II, 405 N.E.2d at 902.

185. See Deborah Tussey, Annotation, supra note 98, at 301-04.

186. 395 N.E.2d 291 (Ind. App. 1979).

187. Id. at 297.

188. Id. at 296-91.

189. Evansville-Vanderburgh II, 405 N.E.2d at 901.

190. Id.



1020 INDIANA LAW REVIEW [Vol. 27:989

responsibility and the power to create committees to assist them in gathering and

receiving information. These committees may be composed of any concerned
parents, students, teachers, experts, consultants or others.'^* The committees

may even be composed entirely of school employees who are not members of
the exclusive representative, but only if their purpose is to gather and receive

information which is "a partial input into the final formulation of policy."'^^

The court further provided: "[T]he exclusive representative cannot be excluded

from such a committee when such committee is the sole instrumentality in the

drafting and proposal of a discussable matter as was true in the instant

case.""^^

The decision in Evansville-Vanderburgh has given rise to a substantial

amount of unfair labor practice litigation in several school systems. '"^"^ In one

case currently on appeal, the Association, citing Evansville-Vanderburgh,

asserted its exclusive right to appoint all school employees to an elementary

computer curriculum committee. ^^^ The school corporation, referring to past

practice, appointed the members of the committee without the approval or

consent of the Association. At the time of the hearing on the unfair labor

practice, there was no final report or recommendation for change in the computer

curriculum and the matter had not yet been discussed at a corporation-wide

discussion committee meeting.

Nevertheless, the Board hearing examiner held that the school corporation

had committed an unfair labor practice by refusing to give the Association the

exclusive right to designate, select, and effectively recommend appointment of

all the school employees that serve on the committee. '^^ She ordered the

corporation to cease and desist, reasoning that the computer curriculum

committee in effect served as the sole instrumentality drafting a proposal on a

191. Id.

192. Id.

193. Id. The Supreme Court's decision did not end the dispute in Evansville-Vanderburgh,

as is documented in Evansville-Vanderburgh III, 464 N.E.2d 1315 (Ind. Ct. App. 1984) (where

the court holds that the Association must exhaust its administrative remedies before the Board to

challenge alleged school board refusals to permit Association input in the selection of committee

members).

194. See, e.g.. Highland Classroom Teachers Ass'n and Board of Sch. Trustees of

Highland, Case No. U-9 1-12-4720, aff'd on appeal, in Board of Sch. Trustees of Highland v.

Highland Classroom Teachers Ass'n, Cause No. 45D01-9204-MI-433 (filed Jan. 13, 1993);

Highland Classroom Teachers Ass'n and Highland, Case No. U-92- 17-4720 (hearing examiner's

report dated Feb. 3, 1993); and Highland Classroom Teachers Ass'n and Board of Sch. Trustees

of Highland, Case No. U-92-24-4720 (hearing examiner's report dated Feb. 3, 1993). See also

Marion Teachers Ass'n and Board of Sch. Trustees of Marion Community Sch. Corp., Case Nos.

U-9 1-16-2865, U-9 1-16-2865, U-89- 13-2865.

195. Board of Sch. Trustees of Highland v. Highland Classroom Teachers Ass'n, Cause

No. 45A03-9304-CV-144 (filed Nov. 15, 1993).

196. Highland Classroom Teachers Ass'n and Board of Sch. Trustees of Highland, Case

No. U-91- 12-4270.



1994] TEACHER BARGAINING 1021

mandatory subject of discussion. On appeal, the Court of Appeals for the Third
Circuit affirmed the Board's decision, but construed it to require that the

exclusive representative appoint some of the teacher members of the Commit-

tee/^^

The Board has held that the exclusive representative has the exclusive right

to designate or select all school employees for such committees.'^** When a
committee serves as the sole instrumentality for discussion, the Board reasons

that the exclusive representative retains the traditional right to designate who will
represent it in collective bargaining activities, including discussion. Since

discussion actually occurs in committee, parties essentially have delegated their

statutory duty to the committee members to discuss in accordance with Section

5 of the Act.

The committee decision implicates a number of issues. In the private sector,

the NLRB and the courts have distinguished among four independent concepts:
1) the duty to meet at reasonable times;*'^^ 2) the duty to confer in good

faith;^^^' 3) the duty to furnish information;^"' and 4) the right to select a

bargaining representative.^"^ All these concepts seem to be combined, and

perhaps unnecessarily so, in the Board's committee rule.

First, the Act contains within it a duty to meet at reasonable times. It is

contained both in the definition of what it means to "bargain collectively"^"^

and also in the definition of the term "discuss."^"^ This language is similar to

that of the National Labor Relations Act, which provides in section 8 that to

bargain collectively is "the performance of the mutual obligation of the employer

and the representative of the employees to meet at reasonable times and confer

in good faith with respect to wages, hours, and other terms and conditions of

employment . . . ."^"^ Commentators have observed that the NLRA does not
require any particular frequency within which the parties must meet, nor does it

define the term "reasonable."^"^ The parties must meet without unreasonable

delay, and an employer may not insist upon bargaining by mail or insist that the

proposals be put in writing.^"^ Moreover, a party cannot defend a charge of

197. Board of Sch. Trustees of Highland v. Highland Classroom Teachers Ass'n, Cause

No. 45A03-9304-CV-144 (filed Nov. 15, 1993, at 9).

198. Early commentary on Evansville-Vanderburgh I and II forecast this possible

interpretation, but rightly criticized and rejected it as one the legislature could not reasonably have

intended. See Archer, supra note 5, at 426.

199. See generally HARDIN, supra note 53, at 592-93, 603-04, 632-35.

200. Id. at 593-94, 608-50.

201. M. at 650-85.

202. Id. at 934-35, 941-42.

203. IND. CODE § 20-7.5- l-2(n) (1993).
204. iND. CODE § 20-7.5-1-2(0) (1993).
205. 29 U.S.C. § 158 (d) (1988).

206. See Hardin, supra note 53, at 592-93, 603-04.

207. Id. at 603 nn. 120-21, and cases cited therein.



1022 INDIANA LAW REVIEW [Vol. 27:989

failure to meet at reasonable times by arguing the busy schedule of its

representative or negotiator.^"^ In other words, the NLRB will look at all the
facts and circumstances of the case to give meaning to the phrase "reasonable

times." Generally, it will not direct the parties to meet in a specific time or

place. This is precisely what the committee decision does. The committee

decision not only dispenses with any inquiry into the reasonableness of the

corporation-wide discussion committee, it also dictates the framework for

discussion.

Second, the private sector model would independently examine the duty to

"confer in good faith."^''^ To determine whether there has been a refusal to

confer, the NLRB will examine the "subjective condition of 'good faith'" as well
as the requirement that the parties "confer."^'" The NLRB has described the
duty to confer as requiring that the parties do so "with the view of reaching an

agreement if possible."^" Similarly, the obligation to confer in good faith has

been defined as one requiring that bargaining take place "with a bona fide intent

to reach an agreement."^ '^ This requires sincere negotiations with an intent to

settle differences and arrive at an arrangement and is inferred from all the facts

and circumstances of the bargaining relationship, including conduct at or away

from the bargaining table. The Board has adopted very similar standards in the

definition of the term "discuss" under the Act.^'^ In the committee decision,

the Board has made a conceptual leap that it is no longer possible to discuss a

proposal after a committee has formulated it. The Board has imported into the

Act the view that input can only be meaningful when it is given as part of the

process of formulating the proposal.

In the private sector, input is considered meaningful if given before

implementation of a change on a mandatory subject of bargaining. This usually

means that it is given in response to a concrete proposal. However, bargaining

is not required where it is futile. Bargaining may be futile after management has

implemented a new policy.^*"* In addition, the duty to bargain arises upon a

request, that is, a demand to bargain made by the union to the employer. If the

union fails to make a timely demand for bargaining, it may waive its rights.^ '^

208. Id. at 604 n.l22 and cases cited therein.

209. 29 U.S.C. § 158(d) (1988).

210. See HARDIN, supra note 53, at 604.

211. Id. at 592 (citing NLRB v. Highland Park Mfg. Co., 1 10 F.2d 632, 637 (4th Cir.
1940)).

212. Id. at 593 n.42.

213. That term is defined as the duty "to meet at reasonable times to discuss, to provide

meaningful input, to exchange points of view, with respect to items enumerated in section 5 of

this chapter. This obligation shall not, however, require either party to enter into a contract, to

agree to a proposal, or to require the making of a concession." IND. Code § 20-7.5- l-2(o)
(1993).

214. See HAkDiN, supra note 53, at 699-700, 708-10.

215. Id. at 708.



1994] TEACHER BARGAINING 1023

The Board decision concludes as a matter of law that such discussion would be

futile where a committee is charged with a particularly complex and involved

task requiring multiple steps to implement.

An alternative reasonable decision would be to give the parties the benefit
of the doubt, permit them to engage in discussion at a system-wide discussion

committee that receives a concrete proposal for change in the curriculum, and

then determine, in light of all the facts and circumstances, whether the parties

have met their duty to confer in good faith. One could argue that discussion

itself is unnecessary until a concrete proposal for change exists.

An intellectually distinct issue also present in the committee cases sub rosa
is the question whether the exclusive representative can have adequate

information upon which to base meaningful discussion if it does not appoint all

the teacher representatives on the committee that formulates the proposal. The

exclusive representative has an interest in knowing what alternative proposals

were considered and rejected by the committee so that it might be better

equipped to engage in meaningful discussion at a corporation-wide discussion

committee. However, the Board need not adopt its present committee decision

to meet this concern. The Board could give the exclusive representative the

right to designate one school employee member to a committee consisting of

members otherwise designated by the school employer. The designee could keep

minutes and confer with the leadership regarding the progress of the commit-

tee.^*^ Although curriculum committees have no power to adopt a new

curriculum, they do receive some delegation of authority. By analogy, the

exclusive representative has a right to information about the discussions of the

committee. This alternative model would permit an exclusive representative to

designate a member of a committee that is engaged in work on a discussable

subject as part of the representative's right to information for meaningful

bargaining or discussion but would preserve the duty to discuss the subject until

there is in fact a concrete proposal. It would then be more efficient and cost

effective to engage in the statute's required discussion within the framework of

a school corporation-wide committee that meets on some regular basis. This

alternative model has the advantage of retaining for the school employer the

statutory right of "conferring with any citizen, taxpayer, student, school

employee, or other person considering the operation of the schools and the

school corporation."^'^ However, in the absence of a corporation-wide

216. It does not require much of a stretch to adopt such a rule, for there is some recogni-

tion in Indiana that when a governing body of a public agency appoints a committee to perform

public business, the Indiana Public Meetings and Records Law may apply. For example, Indiana
defines the term "governing body" of a public agency to include "a board, commission, authority,

council, committee, body, or other entity" that "takes official action on public business" or "any

committee appointed directly by the governing body or its presiding officer to which authority to

"take official action upon public business has been delegated." IND. Code § 5-14-1.5-2(b)
(1993).

217. iND. Code § 20-7.5- l-2(o) (1993).



1024 INDIANA LAW REVIEW [Vol. 27:989

discussion committee, the exclusive representative would still be entitled to

meaningful discussion within the curriculum committee.

One final point concerns the Board's rationale for adopting the committee

decision. Specifically, the Board relies in large measure upon a party's right to

select its own representatives in collective bargaining. The rule is well
established in the private sector that the identity of a party's bargaining

spokesperson or representative is considered a non-mandatory subject of

bargaining, and insistence to the point of impasse on a particular bargaining

party will represent an unfair labor practice.^'^ The Board reasons that the

duty to discuss is an exclusive duty.^'^ However, one could argue that the

Act's duty to discuss is not exclusive. The Act confers on the school employer

the right to consider the interests and concerns of parents, students, and other

members of the public education community; thus it anticipates that a school

corporation will discuss Section 5 subjects not only with the exclusive

representative, but also with others. This is quite different from the duty to

bargain, a duty which is exclusive by definition: it is a violation of the duty to

bargain for an employer to bargain directly with employees.
^^"

To illustrate how different the Act is in its treatment of the term "discuss,"

the Indiana Supreme Court held that an employer may compose a committee

entirely of school employees who are not members of the exclusive representa-
tive organization, as long as the committee is gathering or receiving information

which is only a partial input into the final formulation of policy.^^' Thus, the

Indiana Supreme Court recognizes that the duty to discuss is not an exclusive

one. Selecting committee members based on their nonmembership in the

exclusive employee representative would probably be considered unlawful

discrimination based upon union affiliation under Section 8(a)(3) of the NLRA.
The Board's committee decision in effect renders the duty to discuss exclusive

by using the intellectual framework of a party's right to select its representative

to mandate that the exclusive representative select all those persons with whom
the employer may discuss a Section 5 subject in a sole instrumentality

committee.

In sum, there are a number of distinct labor relations doctrines that the

courts and the Board have elided in the committee cases. This is another area

where a broader scope of mandatory bargaining in place of the narrow scope of

bargaining and broad scope of discussion would probably produce simpler

administration. The courts will reexamine the issue in the near future: it

requires clarification.

218. See Hardin, supra note 53, at 604-07, 935-36.

219. iND. Code § 20-7.5-1-5 (1993) provides that a school employer shall discuss Section
5 subjects with the exclusive representative.

220. Id. at 601-02.

221. Evansville-Vanderbur}>h 11, 405 N.E.2d 895, 902 (Ind. 1980).



1994] TEACHER BARGAINING 1025

VIII. Union Security and Fair Share Fees

Indiana follows the mainstream federal court rulings regarding the nature

and extent of permissible representation fees. However, its approach to union

security is somewhat different as to mechanics. Indiana does not allow an

agency fee as a condition of employment but permits a negotiated agreement,

enforceable as a debt in state court, that teachers pay such a fee.

The Act makes no provision for agency service fees.^^^ In Anderson

Federation of Teachers v. Alexander
^^^ the court held that an agency shop

agreement was unlawful under the Act. The court reasoned that making

payment of an agency service fee a "condition of employment" meant that

teachers who refused to pay the fee would be dismissed from employment on a

ground not provided in the Indiana Teacher Tenure Act.^^'* Since the Tenure

Act provides the exclusive procedure for dismissing teachers, it would conflict

with Sections 6(b) and 3 of the Act to permit bargaining over agency service

fee.^^^

In Fort Wayne Education Ass'n, Inc. v. Goetz}^^ the court authorized a

modified form of union security. The employer and exclusive representative

may agree that teachers are obligated to pay a representation fee without making

it a condition of employment; the court validated the action of the Association

in proceeding to small claims court to collect from teachers who failed to

voluntarily authorize a payroll deduction or to make the payment.^^^ The court

found that teachers were not obligated to pay for the amount used for political

activities, which avoids any possible First Amendment problems.^^'* The

Association had put together an internal rebate procedure so that a non-member

could petition for a rebate of improperly expended funds. The court observed

that since there were internal remedies available to the non-member employees,

there was no violation of their constitutional rights.^^^

222. The term "agency service fee" refers to a collective bargaining agreement clause that

requires employees to pay to an exclusive representative a fee in exchange for representation

services. There are a number of possible variations of the union security clause, including a

maintenance of membership clause (which requires an employee who has joined a union to

remain a member for the duration of the collective bargaining agreement), or a union shop clause

(which is one that requires an employee to actually become a member of the union as a condition

of employment). These latter two provisions violate the First Amendment rights of public

employees and therefore are not seen in the public sector. However, the agency shop provision is

fairly common, and also goes by the name "fair share fee." See generally Hardin, xupra note

53, at 1489-1566.

223. 416 N.E.2d 1327, 1333 (Ind. Ct. App. 1981).

224. Id. at 1329; iND. Code § 20-6.1-4-10 to -4-14 (1993).
225. The court did not say whether it was necessary for teachers to authorize deduction of

the fee from their wages.

226. 443 N.E.2d 364 (Ind. Ct. App. 1982), reh'g denied, Feb. 3, 1983.

227. Id. at 373.

228. Id.

229. See Abood v. Detroit Bd. of Educ, 431 U.S. 209 (1977); and Brotherhood of Ry. &



1026 INDIANA LAW REVIEW [Vol. 27:989

In Abels v. Monroe County Education Ass'n,^'^^^ the court held that a

representation fee should be calculated by subtracting the cost of political,

ideological, organizing, and legal expenses unrelated to collective bargaining

from the amount of dues members are required to pay. The court specifically

upheld charges to individual teachers for services provided by the state and

national affiliates of the local association.^^'

In New Prairie Classroom Teachers Ass'n v. Stewart^^ the Association
again filed small claims actions against teachers who failed to pay the represen-
tation fee. The court upheld judgments against each individual non-paying

teacher, but held that the bargaining representative has the burden of proving the

proportion of its funds that it expends for political or ideological purposes.
^^^

It cited with approval the Supreme Court's decision in Abood, concluding that in

the public sector, related budgetary and appropriation decisions form an integral

part of the bargaining process^^'* and, thus, the bargaining representative may

collect fees for such lobbying activities.

The court next rejected as inadequate a rebate procedure that allowed the

temporary use for political purposes of non-member representation fees.^^^

Following the United States Supreme Court, the court held that even this

temporary use of involuntary fees represented a violation of teachers' First

Amendment right of freedom of association.^"'^ The rebate procedure was a

stringent one; only by complying with its precise terms could a teacher recover

money wrongfully collected.^^^ The court concluded that although the payroll

deductions were not a condition of employment, the payment itself was

mandatory which meant that the Association was in fact extracting an involun-

Steamship Clerks v. Allen, 373 U.S. 1 13 (1963).

230. 489 N.E.2d 533, 539 (Ind. Ct. App. 1986), cert, denied, 480 U.S. 905 (1987).

231. See also New Prairie Classroom Teachers Ass'n v. Stewart, 487 N.E.2d 1324 (Ind.
Ct. App. 1986), cert, denied, 480 U.S. 917 (1987) (approving charges for the services of lawyers,

expert negotiators, economists, and research staff employed by the state and national affiliates of

the local, and expenditures by the state and national affiliates for lobbying governmental agencies

other than the school corporation).

232. Id.

233. Id. at 1328.

234. Id. at 1329. See supra note 229.

235. Fort Wayne Educ. Ass'n v. Aldrich, 527 N.E.2d 201 (Ind. Ct. App. 1988), trans,
granted, 585 N.E.2d 6 (1992).

236. Id. at 206-08 (citing Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986) and

Ellis V. Brotherhood of Ry. Workers, 466 U.S. 435 (1984)).

237. Id. at 206. For a more complete discussion, see Terry A. Bethel, Labor and

Employment Law, Recent Employment Law Decisions of the Seventh Circuit and the Indiana
Courts, 26 iND. L. Rev. 1065, 1073-75 (1993).



1994] TEACHER BARGAINING 1027

tary loan during the current year.^^^

The Indiana Supreme Court resolved a conflict between the courts of

appeals over proof of chargeable expenses in Fort Wayne Education Ass'n v.

AldrichP"^ The Court adopted the Second District's opinion in Albro v.

Indianapolis Education Ass'n?^^^ As a result, the exclusive representative has

the burden of proving chargeable, as well as nonchargeable expenses.^"*'

IX. Review of Arbitration Awards

Indiana courts have reviewed the substance of arbitration awards and have

intervened to safeguard the statutory prerogatives of school corporations by

finding arbitration awards encroaching upon Section 6(b) rights void as against

public policy. This is true regardless of whether the objecting party files a

timely motion to vacate or to modify the award ninety days after its issuance

under the Uniform Arbitration Act.^"^^

Indiana has adopted a version of the Uniform Arbitration Act.^"*^ A
written agreement to arbitrate is valid and enforceable unless it can be revoked

on the same grounds as any other contract.^"^"^ The method for appointing the

arbitrators must be determined by the terms of the arbitration agreement, if

specified therein, or the court, in the absence of such an agreement, may appoint

an arbitrator."^"*^ The Uniform Arbitration Act provides that the arbitration

award must be in writing and signed by all the arbitrators concurring therein.
^"^^

Parties to the arbitration may apply to modify or correct the award,^'^'' to

confirm the award,^'*^ or to vacate the award.
^'''^ Under Indiana law, the trial

238. The court reaffirmed Fort Wayne in Ake v. National Educ. Ass'n-South Bend, 531

N.E.2d 1178 (Ind. Ct. App. 1988). The court rejected an argument that teachers' failure to give

notice under the State Tort Claims Act invalidated their lawsuit protesting an inadequate rebate

procedure. The court reaffirmed that the rebate procedure improperly collected fair share fees for

use for political purposes with which non-member teachers disagreed.

239. 594 N.E.2d 781 (Ind. 1992).

240. 585 N.E.2d 666 (Ind. Ct. App. 1992).

241. Id. at 669. The Indiana Supreme Court remanded Fort Wayne Educ. Ass'n v. Aldrich

for further proceedings in accordance with its opinion. Aldrich, 594 N.E.2d 781.

242. On whether a school board may arbitrate a permanent teacher's dismissal, see also
Board of Sch. Comm'r of Indianapolis v. Haynes, Case No. 49A02-9012-CV-756 (filed Sept. 26,
1991, marked "not for publication").

243. iND. Code §§ 34-4-2-1 to -2-22 (1993).
244. Ind. Code § 34-4-2-1 (1993).
245. Ind. Code § 34-4-2-4(1993).

246. Ind. Code § 34-4-2-9 (1993).
247. Ind. Code § 34-4-2-10 (1993).
248. Ind. Code § 34-4-2-12 (1993).
249. Ind. Code § 34-4-2-13 (1993). "[T]he court shall vacate an award where: (1) the

award was procured by corruption or fraud; (2) there was evident partiality by an arbitrator

appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights

of any party; (3) the arbitrators exceeded their powers and the award cannot be corrected without

effecting the merits of the decision upon the controversy submitted; (4) the arbitrators refused to



1028 INDIANA LAW REVIEW [Vol. 27:989

court must order the parties to proceed with arbitration upon a showing that there

is an agreement to arbitrate between the parties, but the court also may stay an
arbitration where there is no agreement to arbitrate.^^" Implicit is the rule that

the court rather than the arbitrator makes the final determination on whether

there is in fact an agreement to arbitrate.

In DeKalb County Eastern Community School District v. DeKalb County

Eastern Education Ass'n,^^^ the court applied the private sector standard for

determining arbitrability. A number of school boards formed a special education
cooperative to be administered by the DeKalb Board of Education. The

cooperative contract provided that teachers would bring grievances to their own
local school board. However, the cooperative contract also provided that the

DeKalb Board was responsible for contractual obligations to teachers. Teachers

filed a grievance under the grievance procedure of the DeKalb collective

bargaining agreement. These teachers were not employed specifically by nor did

they teach in DeKalb. The court held that there was no basis for the trial court

to have concluded that the agreement to arbitrate in question was "susceptible of

an interpretation that cover[ed] the grievances for the special ed co-op teach-

ers."^^^

The phrase "susceptible of an interpretation" evokes the Steel Workers

Trilogy of the United States Supreme Court.^^^ Under the Trilogy, "[u]nless

the parties expressly provide that the arbitrator is to determine arbitrability, that

determination rests with the courts."^^'* However, the court need only deter-

mine whether the claim on its face is governed by the contract. Even if the

court believes that the grievance is frivolous or baseless, doubts should be

resolved in favor of arbitration. The key language is that the court must be able

to say with positive assurance that the arbitration clause is not "susceptible to an

interpretation that covers the dispute."^^^ After the arbitrator has issued an

award, the award is presumed legitimate so long as it draws its essence from the

postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence

material to the controversy or otherwise so conducted the hearing, contrary to the provisions of

section 6 of this chapter, as to prejudice substantially the rights of a party; or (5) there was no

arbitration agreement and the issue was not adversely determined in proceedings under section 3

of this chapter and the party did not participate in the arbitration hearing without raising the

objection."

250. IND. Code § 34-4-2-3 (1993).
251. 513 N.E.2d 189 (Ind. Ct. App. 1987).

252. Id. at 193.

253. The Steel Workers Trilogy consists of United Steelworkers v. American Mfg. Co.,

363 U.S. 564 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574
(1960); and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

254. Frank Elkouri and Edna A. Elkouri, How Arbitration Works 27 (4th ed.
1985).

255. Id.



1994] TEACHER BARGAINING 1029

collective bargaining agreement. The court should not review the merits of

grievances.
^^^

Although the Uniform Arbitration Act itself does not define the terms

"arbitrator" or "arbitration award," a court has held that a school principal's

disposition of a teacher grievance at an interim step in the grievance procedure

did not represent an arbitration award under the Uniform Arbitration Act. In

Prairie Heights Education v. Board of School Trustees of Prairie Heights

Community School Corp.^^^ special education teachers who belonged to a
special education cooperative including DeKalb disputed the manner in which

their salary was calculated when they were reassigned from one member of the
cooperative to another. School principals handled the teachers' grievance and

agreed to restore the pay without interest. After the school superintendent

rescinded that decision, the teachers filed a complaint requesting that the court

enforce the principals' grievance setdement under the Uniform Arbitration Act.

The court held that the principals had no authority to fix or set salaries and

compensation for teachers and rejected the argument that the grievance

settlement was an arbitration award under the Uniform Arbitration Act.^^^

The Indiana Court of Appeals has upheld an arbitrator's power to decide

whether additional responsibilities for a specific position are subject to the

posting and negotiation rights under a collective bargaining agreement on

Eastbrook Community School Corp. v. Eastbrook Education Ass'n,^^*^ the

school corporation argued that it had a statutory power to assign duties to

specific positions such as the head basketball coach, that these duties were

administrative and not subject to the collective bargaining agreement.^^" The

Association filed a grievance, arguing that the school corporation's failure to post

and fill certain positions in accordance with a procedure contained in the contract

represented a breach of contract. There was a past practice of negotiating both

the duties and pay scales for extra-curricular jobs. The arbitrator ordered that

jobs be posted and filled in accordance with the contract. The school corpora-

tion moved to vacate the award, arguing that the arbitrator had essentially made

256. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960).
See generally HARDIN, supra note 53, at 955-67.

257. 585 N.E.2d 289 (Ind. Ct. App. 1992).

258. Id. at 293. An alternative way to analyze this case would be to treat it as an example
of repudiation of a grievance settlement, which is a refusal to bargain in good faith under

traditional labor law principles. However, in order for the rules on repudiation grievance

settlements to apply, the teachers must show that the principals' decision represented such a

settlement. Ordinarily, the mere issuance of a disposition at an interim step of the grievance

procedure is not enough. The contract itself must provide that, in the absence of any appeal,

interim disposition becomes a final and binding settlement of the grievance. In this instance, the

case indicates that the principals' decision did not have that effect, but was instead rescinded by

the superintendent, presumably in a timely fashion.

259. 566 N.E.2d 63 (Ind. Ct. App. 1990).

260. Id. at 65.



1030 INDIANA LAW REVIEW [Vol. 27:989

a bargaining unit determination outside the scope of his jurisdiction because the

duties attached to the positions in question were supervisory and administrative.

The court rejected this argument and reasoned that the dispute centered on

whether the vacancies were certified positions within the meaning of the

contracts. Since the parties were free to agree by contract that such questions

would be arbitrated, the court would not interfere.^^' The court also rejected

the argument that the arbitrator exceeded his authority and essentially amended

the agreement. The court noted that an arbitrator's award is void and subject to

collateral attack if the arbitrator awards a form of relief upon which public

policy does not permit the parties voluntarily to agree.^''^ However, that was

not the case in Eastbrook. The arbitrator did not determine the makeup of the

bargaining unit, but merely defined the term "certified" for purposes of the

contract's posting provisions.^^^

Most cases involve arbitration awards that are overturned because the

arbitrator exceeded the scope of his or her authority or issued an award that was

void as against public policy. In School City of East Chicago v. East Chicago

Federation of TeacherSy^^^ the court held that an arbitration award was void as

against public policy because it contained an order that the employer pay

punitive damages. The court paid lip service to the prevailing rule that

arbitrators are not generally bound by principles of substantive law since the

parties bargain for a common sense solution.^^^ However, the court reasoned
that it could intervene when public policy demanded.^^^ Moreover, since the

Indiana legislature expressly declared that there were four grounds upon which

the relationship between school corporations and teachers associations were not

comparable to the private sector, the court held it was not bound by federal

policy on the finality of arbitration awards. Instead, where an arbitrator has not

followed the law, a reviewing Indiana court may: (1) disregard the error as

within the authority of the arbitrator; (2) use the error to vacate or modify the

award; or (3) render the award void as being beyond the arbitrator's jurisdic-

tion.^^^ The latter was the case in East Chicago. The arbitrator had no power

to award punitive damages and this remedy rendered the arbitration award

void.2^«

In Gary Teachers Union, American Federation of Teachers v. Gary

Community School Corporation of Indiana,^^^ the arbitrator attempted to

261. Id. (citing School City of E. Chicago v. East Chicago Fed'n of Teachers, 422 N.E.2d

656 (Ind. Ct. App. 1981)).

262. Id. at 66.

263. Id.

264. 422 N.E.2d 656, 663 (Ind. Ct. App. 1981).

265. Id. at 662.

266. Id.

267. Id.

268. Id. at 663. See Archer, supra note 8, at 233 for a more complete discussion.

269. 512 N.E.2d 205 (Ind. Ct. App. 1987).



1994] TEACHER BARGAINING 1031

exercise authority under the contract "to fashion an appropriate remedy.
"^^"

The court again vacated the arbitration award, holding that the contract was void

as against public policy as defined by the Act because it was beyond the

arbitrator's scope of authority .^^' The arbitrator had awarded punitive damages

in the amount of 10% of wages.

In Tippecanoe Education Ass'n v. Board of School Trustees of Tippecanoe

School Corp.,^^^ the court vacated an arbitration award where the arbitrator had

determined that a teacher's transfer was not for the general welfare of the school

corporation. The court held that the arbitrator had usurped a function delegated

to the local school corporation under section 6(b) of the Act which provides that

only the school corporation can determine the general welfare for the school

district.^^^ The arbitrator interpreted contract language which provided that

"the Board reserves the right to make involuntary transfers for the general

welfare of the corporation."^^'* According to the court, the award violated

public policy as codified in the Act which essentially prohibits a school board

from delegating to an arbitrator the authority to decide such a dispute if it

conflicts with the responsibility entrusted to the school board in its sole

discretion under the statute. However, the Court agreed that a school board and

teacher association could, under section 5 of the Act, mutually agree to bargain

procedures and criteria relative to decisions such as the hiring and transfer of

teachers, and a school board may bind itself to observe these procedures by

express contractual provisions.^^^

An arbitrator was found to have no authority to prioritize building needs and
seniority or length of service in transfer or reassignment decisions in Fort Wayne

Education Ass'n v. Board of School Trustees of Fort Wayne Community

Schools?^^ The arbitrator denied the grievance of a teacher who complained
another teacher had benefitted from favoritism, reasoning that there had been no

violation of the contract and that, in considerations of transfer and reassignment,

building needs outweigh seniority or length of service. The court modified the

award by deleting the language on building needs and seniority because such

issues were rendered moot by the arbitrator's determination that no prohibited

reassignment had occurred. In Michigan City Education Ass'n v. Board of

School Trustees of the Michigan City Area Schools^^^ the court held that a

school corporation may bind itself to grievance arbitration and may bargain over
procedures and standards for dismissing teachers, but it may not delegate to an

270. Id. at 206.

271. Id. at 201.

272. 429 N.E.2d 967, 975 (Ind. Ct. App. 1981). See Archer, supra note 8, at 237 for a

more detailed discussion.

273. Tippecanoe, 429 N.E.2d at 973.

274. Id. at 969.

275. Id. at 974-75.

276. 569 N.E.2d 672 (Ind. Ct. App. 1991).

277. 577 N.E.2d 1004 (Ind. Ct. App. 1991).



1032 INDIANA LAW REVIEW [Vol. 27:989

arbitrator the power to rule on teacher dismissals.^^* However, in Southwest

Parke Education Ass'n v. Southwest Parke Community School Trustees Corp.,

the trial court had remanded a teacher dismissal case to the arbitrator for a

determination of whether the school board discriminated against the teacher for

union activities.

X. Conclusion

By adopting a dual obligation to bargain and to discuss, Indiana set the
courts and the Board on a less traveled road to woods where it is sometimes

harder to see the broader forest of labor relations policy for the specific statutory

trees of the Act. The courts and the Board have departed from traditional

models for labor relations in certain areas, largely in an attempt to reconcile

competing statutory commands regarding the duty to bargain, the duty to discuss,

and the duty to maintain managerial prerogative. All collective bargaining laws

balance the interests of the parties. Where to draw the line between respective

parties' rights and obligations merits continuing re-examination. Now that
Indiana has had twenty years of experience with teacher bargaining, it may be
time to consider whether the current narrow scope of mandatory bargaining and

broad scope of mandatory discussion represent the best balance. Many districts
continue to bargain over subjects that would otherwise be discussable, or even

matters of management prerogative, because of the grandfather clause. A
broader scope of bargaining, combined with a brighter line as to managerial

prerogative, might enhance labor relations and serve the public interest.

278. See also Anderson Fed'n of Teachers v. Alexander, 416 N.E.2d 1327 (Ind. Ct. App.

1981).

279. 427 N.E.2d 1 140 (Ind. Ct. App. 1981), reh'g denied, 429 N.E.2d 675 (1981).