Evansville-Vanderburgh School Corp. v. Roberts
| Decision Date | 01 October 1979 |
| Docket Number | EVANSVILLE-VANDERBURGH,No. 1-179A13,1-179A13 |
| Citation | 395 N.E.2d 291 |
| Parties | SCHOOL CORPORATION, Appellant, v. Mike ROBERTS and Indiana Education Employment Relations Board, Appellee. |
| Court | Indiana Appellate Court |
Evansville-Vanderburgh School Corporation has filed a petition for rehearing in this cause and, upon examination of the same, said petition is hereby granted and the opinion heretofore rendered in this cause 1 is vacated.
Appellant Evansville-Vanderburgh School Corporation (EVSC) appeals from a judgment in favor of Mike Roberts (Roberts) and the Indiana Education Employment Relations Board (IEERB).
This cause was initiated by Roberts on behalf of the Evansville Teachers Association (ETA) by the filing of an unfair practices complaint with the IEERB. 2 The action was precipitated by the implementation of a teacher evaluation plan without, the ETA alleged, any discussion with the ETA. EVSC was also charged with an unfair practice on the grounds that the plan was promulgated by a committee of school teachers chosen by the Administration without consultation with the ETA.
At the outset, we deem it appropriate to enunciate the proper standard of review, this being an appeal from an administrative agency that is within the purview of the Administrative Adjudication Act. See Ind.Code 20-7.5-1-11. It is the function of the IEERB to conduct a De novo proceeding to ascertain whether an unfair practice has been committed (See Indiana Education Employment Relations Board v. Board of School Trustees of Delphi Community School Corporation (1977), Ind.App., 368 N.E.2d 1163), and on appeal to the trial court, such court acts in a Reviewing capacity.
The board or agency, not the court determines the issues of fact. The court cannot weigh conflicting evidence, which appears in the record of the hearing, for the purpose of determining for whom it preponderates. If there is any substantial evidence to support the finding of the board or agency, the court may not disturb the board's or agency's decision. Indiana Ed. Emp. Rel. Bd. v. Board of School, Etc. (1976), Ind.App., 355 N.E.2d 269.
We first deal with the correctness of the conclusion of the Hearing Officer, the IEERB, and the trial court that EVSC violated IC 20-7.5-1-7(a)(5) for the failure to discuss the teacher evaluation plan with the ETA prior to implementation. This statute declares that an employer commits an unfair practice for the refusal to discuss matters encompassed by IC 20-7.5-1-5, which 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: working conditions, other than those provided in Section 4; curriculum development and revision; textbook selection; teaching methods; selection, assignment or promotion of personnel; student discipline; expulsion or supervision of students; pupil-teacher ratio; class size or budget appropriations . . . .
This obligation to discuss is more fully defined in IC 20-7.5-1-2(O ):
'discuss' means the performance of the mutual obligation of the school corporation through its superintendent and the exclusive representative to meet at reasonable times to discuss, to provide meaningful input, to exchange points of view, with respect to items enumerated in Section 5 (immediately above) 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. A failure to reach an agreement on any matter of discussion shall not require the use of any part of the impasse procedure . . . .
Collectively, these statutes provide that an employer commits an unfair practice under these sections if he refuses to meet at reasonable times with the exclusive bargaining representative and "provide meaningful input, (and) exchange points of view," with respect to working conditions, curriculum development, teaching methods, Et cetera. Therefore, at least two issues are of critical import: (1) is the matter embraced within the "discussable" items of IC 20-7.5-1-5, and (2) did the parties discharge their obligations pursuant to IC 20-7.5-1-2(O )?
With respect to the former, both parties have concentrated their efforts on whether the teacher evaluation plan was within the meaning of "working conditions." In construing a statute, we are ever-mindful that the words used are to be given their usual and ordinary meaning, and "we should not so construe a statute as to willfully and unnecessarily narrow or emasculate its provisions." White v. White (1975), Ind.App., 338 N.E.2d 749, 754 (citation omitted). We believe the teacher evaluation plan in issue is indeed within the plain and ordinary meaning of "working conditions." The " philosophy" of the plan is to maintain high teacher competence by means of self-evaluation forms, classroom observation by "evaluators," and an evaluation conference. The entire process may result in a recommendation for a change of assignment or dismissal, and appeal procedures are provided for. The guidelines for evaluators include "Instructional Skills," such as adapting teaching methods to individual abilities of pupils, and using "approved methods of correspondence, notes, (and) home visitation . . . ." Teacher guidelines also include consideration of whether he or she eliminates outmoded teaching styles; eliminates busy work; trains students in the proper care and use of school supplies and equipment; prepares a written lesson plan in case a substitute teacher is required; gives classroom discipline appropriate to the " offense;" communicates and cooperates with parents; "display(s) emotional stability;" exercises "care and good taste in personal appearance;" "belong(s) to and participate(s) in professional organizations;" supports extracurricular and parent-supported activities, Et cetera. We believe these factors significantly touch and concern the everyday activities of school teachers and, therefore, are within the ordinary understanding of "working conditions." 3
EVSC nevertheless complains that since the statute does not establish a "time frame" for discussions, it discharged its obligation by its willingness to discuss the issue After the plan was implemented. We agree with the IEERB below that "meaningful input" requires a willingness to discuss Prior to implementation of the plan. 4
EVSC next contends that the ETA waived its rights to a discussion for the failure to request an opportunity to meet prior to the implementation of the plan. This contention, even if we were to accept that a waiver could apply, is without merit. The trial court, in its special findings of fact below, stated:
11. There is substantial evidence in the record to support the hearing examiner's two additional findings of fact, which are as follows:
a. Robert Kraft was Vice-President of the ETA at the time of his appointment to chair the Evaluation Committee. He resigned as Vice-President of the ETA in February, 1975, months before the Committee completed work on the evaluation instrument and guide. His resignation precipitated a breakdown in communication between the ETA leadership and the Evaluation Committee.
b. Randall Harris, former President of the ETA, and Norma Kacen, Executive Director of the ETA, were not aware that the Evaluation Committee had finished its project and had produced a new evaluation instrument and guide until they received the agenda for August 28, 1975, School Board Meeting . . . . Although the ETA received the agenda from one to three days prior to the School Board Meeting, it was not unreasonable for the ETA to wait until the school board meeting to request discussion * * *
As these findings are supported by the record, the knowledge of ETA herein was not, in our opinion, sufficient to support EVSC's contention of waiver.
It is further alleged that the trial court failed to adopt as fact that "(t)he Evansville Teachers Association knew before August 28, 1975, of the existence of the evaluation committee and that an instrument and guide were being prepared." Assuming that such a finding should have been made, it would be incumbent upon this court to liberally construe findings of fact Together, consistent with the resulting judgment. In re Marriage of Miles (1977), Ind.App., 362 N.E.2d 171. In considering the findings recited above, the proffered finding of fact could only be construed as referring to the "knowledge" obtained either by Kraft, or by the ETA three days prior to the meeting. Since these facts were otherwise established, the omitted finding would have been merely cumulative. Accordingly error, if any, is harmless. Ind.Rules of Procedure, Trial Rule 61.
EVSC next argues that the trial court erred in failing to find, as did...
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