Indianapolis Educ. Ass'n v. Indianapolis Pub. Sch.

• Decision Date: 27 January 2012
• Docket Number: No. 49A02-1101-PL-27,49A02-1101-PL-27
• Parties: INDIANAPOLIS EDUCATION ASSOCIATION And PRESIDENT ELDEN WOLTING,Appellants, v. INDIANAPOLIS PUBLIC SCHOOLS, Appellee.
• Court: Indiana Appellate Court

INDIANAPOLIS EDUCATION ASSOCIATION And PRESIDENT ELDEN WOLTING,Appellants, v. INDIANAPOLIS PUBLIC SCHOOLS, Appellee.

No. 49A02-1101-PL-27

COURT OF APPEALS OF INDIANA

January 27, 2012

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before

any court except for the purpose of

establishing the defense of res judicata,

collateral estoppel, or the law of the

case.

ATTORNEYS FOR APPELLANTS:

ERIC M. HYLTON

JAMES B. CHAPMAN, II

Benesch Friedlander Coplan &

Aronoff, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

HUDNALL A. PFEIFFER

JON LARAMORE

JOHANE J. DOMERSANT

Baker & Daniels, LLP

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Theodore M. Sosin, Judge

Cause No. 49D02-0907-PL-34845

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge

STATEMENT OF THE CASE

Indianapolis Education Association and its president, Elden Wolting, (collectively "IEA") appeal the trial court's order setting aside the Indiana Education Employment Relations Board's ("IEERB") decision that Indianapolis Public School ("IPS") had engaged in an unfair labor practice when IPS failed to collectively bargain the addition of twenty-five instructional days to the school calendar for four IPS schools.

We dismiss this appeal as moot.

ISSUE

Whether this appeal should be dismissed as moot.

FACTS¹

The relevant facts, as stipulated by the parties before the IEERB, are as follows:

1. [IEA] is a "school employee organization" as that term is defined in Ind. Code § 20-29-2-14 and is located at 6910 North Shadeland Avenue, Suite 100, Indianapolis, Indiana 46220.

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3. [IPS] is a "school employer" as that term is defined in Ind. Code § 20-29-2-15 and is located at 120 East Walnut Street, Indianapolis, Indiana 46204.

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5. IEA is the "exclusive representative" of the IPS school employees as that term is defined in Ind. Code § 20-29-2-9.

6. Dr. Eugene White is a "supervisor" for IPS as that term is defined in Ind. Code § 20-29-2-19 and is employed as the Superintendent of IPS as defined in Ind. Code § 20-29-2-18.

7. Dr. Jacqueline Clency is a "supervisor" for IPS as that term is defined in Ind. Code § 20-29-2-19 and is employed as the Assistant Superintendent, Middle School Education for IPS.

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9. The Professional Relations Group ("PRG") is composed of representatives of IPS and IEA and is scheduled to meet monthly to talk about issues and concerns of both parties. The topics on the agenda may be referred for "meaningful" discussion. Other topics may be noted as topics for bargaining. Other topics are for information only.

10. The School Improvement Plan/Superintendent's Advisory Group ("SIP/SAG") is composed of representatives of IPS and IEA and is scheduled to meet monthly for the purpose of "meaningful discussion" on the topics listed in Ind. Code § 20-29-6-7.

11. In the 2006-2007 school year, John Marshall Middle School ("Marshall") and Emma Donnan Middle School ("Donnan") were at Year three of School Improvement under No Child Left Behind ("NCLB"), meaning that they had not made Adequate Yearly Progress ("AYP") for four consecutive years. In addition to school choice, school improvement planning/technical assistance, and professional development, IPS implemented new curriculum, decreased management authority, and appointed an outside expert.

12. In the 2006-2007 school year, Henry Wadsworth Longfellow Middle School ("Longfellow") was at Year six of School Improvement, meaning that it had not made AYP for more than six consecutive years. In addition to school choice, school improvement planning/technical assistance, professional development, and supplemental educational services, IPS implemented restructuring and an alternative calendar with additional voluntary intercession days.

13. In the 2006-2007 school year, Riverside Elementary #44 ("Riverside") was in Year four of School Improvement, meaning it had not made AYP for five consecutive years. In addition to school choice, school improvement planning/technical assistance, professional development, and supplemental educational services, IPS replaced the principal, implemented new curriculum, and appointed an outside expert.

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15. For the 2007-2008 school year, Marshall, Donnan, Longfellow, and Riverside moved to the next level of school improvement.

16. At the PRG meeting on Wednesday, March 14, 2007, at approximately 8:30 a.m., Dr. White informed IEA of the action IPS planned to implement under NCLB at Marshall, Donnan and Longfellow middle schools. IPS, as the local education agency, planned to place the schools on an alternative calendar, including adding an additional 25instructional days of mandatory school attendance for students and teachers. At Riverside, IPS informed IEA that it would be implementing restructuring, including replacing the principal and all the certified staff and placing the school on an alternative calendar, including adding an additional 25 instructional days of mandatory school attendance for students and teachers; the new certified staff who chose to work at this school would also be mandated to work the additional 25 instructional days a year.

17. Dr. White informed IEA that, immediately after school on Wednesday, March 14, 2007, the teachers at Marshall, Donnan, and Longfellow would be advised of their option to stay at their school and work the additional 25 days or be involuntarily transferred to a school on the traditional calendar.

18. Making the transfers involuntary meant that those teachers would have a priority for reassignment. All teachers from Marshall, Donnan, and Longfellow who sought reassignment were reassigned to schools on the traditional calendar.

19. Dr. Clency presented a calendar during the March 14th PRG meeting that showed the days that the teachers at the middle schools on the alternative calendar would be required to work and that students would be in attendance . . . .²

20. On March 14, 2007, IEA delivered a letter to Dr. White objecting to IPS'[s] implementation of Level IV sanctions under NCLB without having meaningful discussion with IEA . . . .³

21. On or about March 28, 2007, and March 29, 2007, the teachers at Donnan, Marshall, and Longfellow received a letter from IPS'[s] Human Resources division that stated, "I understand that by choosing to teach at [name of school] during the 2007-2008 School Year I am obligated to work the following alternative calendar schedule . . . ." The letter also said, "I understand that I will receive no additional paid personal or sick days in the alternative calendar schedule," and, "I understand that I will not be able to utilize paid personal or sick days during the intercessions." . . . .⁴

22. The letter delivered to the three middle schools had places for the teachers to sign and date their agreement to the terms and said, "Please fax this completed form to 3650 by 3/30/07."

23. On March 29, 2007, IEA delivered a letter to Dr. White, which stated that IPS had violated P.L. 217 by failing to bargain the number of days a teacher must work, by failing to discuss the change to the Alternative Calendar, and by failing to bargain concerning leave days . . . .⁵

24. IPS and IEA had previously discussed an alternative calendar that was in effect for five (5) schools consisting of 190 mandatory teacher days spread over the whole calendar year with voluntary intercession days for the teachers and students.

25. IPS did not discuss the placement of the 25 additional days on the Alternative Calendar for Marshall, Donnan, Longfellow, and Riverside for the 2007-08 school year. IPS also did not discuss with IEA the replacement of all certified staff at Riverside.

26. IPS did not bargain or discuss with IEA the addition of 25 days at the four schools, or additional sick or personal leave days for teachers who teach the additional 25 days.

27. Also, prior to issuing the March 28/29 letter to teachers, IPS did not bargain or discuss with IEA the use of sick or personal leave days during the intercessions.

28. Ultimately, after conversations between representatives of IPS and IEA, IPS agreed that teachers would be allowed to use sick days and personal days during the intercessions in compliance with the parties' collective bargaining agreement.

29. At its action session on May 15, 2007, the Board of School Commissioners for the City of Indianapolis unanimously approved the Superintendent's recommendation to extend the school year for Donnan, Marshall, Longfellow, and Riverside for the 2007-2008 school year. . . .⁶

(App. 26-30). Additionally, IPS and IEA had a collective bargaining agreement that was in effect for the 2005-2006 and 2006-2007 school years and continued in effect for the 2007-2008 school year until a new agreement was reached.⁷ The collective bargaining agreement contained the following provisions:

ARTICLE VII

SUMMER SCHOOL, INTERSESSION AND ADULT EDUCATION

Section 1: Teachers of summer school, intersession and adult education classes shall be issued a Supplemental Services Teachers Contract. The teachers shall be paid at an hourly rate which is computed by dividing the teacher's annual base salary by the number of contract days (190 contract days). This equals the daily rate, which divided by six (6), equals the teacher's hourly rate.

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ARTICLE IX

PROFESSIONAL COMPENSATION

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Section 9: In the event that a member of the certified staff is required to work on authorized IPS programs or activities beyond the regular school calendar, such days of work shall be compensated at his/her daily rate unless otherwise specified in this Agreement.

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ARTICLE XVI

HOURS

Section 1: The regular teacher workday shall be 7.5 hours with a duty-free lunch of at least 30 minutes between 10:00 a.m. and 2:00 p.m.

Section 2[:] Beginning with the 2002-2003 school year, all designated service agreements will be calculated on a 6-hour day of service, except as otherwise required by law.

(App. 67, 69, 81).

On May 7, 2007, IEA filed with IEERB a...