Digest Correction
January 31, 2003
HOUSE BILL No. 1568
_____
DIGEST OF HB 1568
(Updated January 28, 2003 6:19 PM - DI 96)
Citations Affected: IC 20-7.5; IC 20-17.
Synopsis: Collective bargaining for school employees. Allows
noncertificated school employees to engage in collective bargaining.
Provides for disciplinary procedures for noncertificated employees of
a school corporation. Provides certain procedural requirements before
a noncertificated employee of a school corporation may be discharged.
Effective: July 1, 2003.
Kersey
January 16, 2003, read first time and referred to Committee on Labor and Employment.
January 30, 2003, reported _ Do Pass.
Digest Correction
January 31, 2003
First Regular Session 113th General Assembly (2003)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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HOUSE BILL No. 1568
A BILL FOR AN ACT to amend the Indiana Code concerning
education.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 20-7.5-1-1; (03)HB1568.2.1. -->
SECTION 1.
IC 20-7.5-1-1
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 1.
Intent. The Indiana
general assembly
hereby declares that:
(a) (1) the citizens of Indiana have a fundamental interest in the
development of harmonious and cooperative relationships
between school corporations and their
certificated employees;
(b) (2) recognition by school employers of the right of school
employees to organize and acceptance of the principle and
procedure of collective bargaining between school employers and
school employee organizations can alleviate various forms of
strife and unrest;
(c) (3) the state has a basic obligation to protect the public by
attempting to prevent any material interference with the normal
public school educational process;
and
(d) (4) the relationship between school corporation employers and
certificated school employees is not comparable to the
relation
relationship between private employers and employees among
others for the following reasons:
(i) (A) A public school corporation is not operated for profit
but to insure ensure the citizens of the state rights guaranteed
them by the Indiana State Constitution of the State of
Indiana.
(ii) (B) The obligation to educate children and the methods by
which such education is effected will change rapidly with
increasing technology, the needs of an advancing civilization,
and requirements for substantial educational innovation.
(iii) (C) 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. and.
(iv) (D) Public school corporations have different obligations
with respect to certificated school employees under
constitutional and statutory requirements than private
employers have to their employees.
SOURCE: IC 20-7.5-1-2; (03)HB1568.2.2. -->
SECTION 2.
IC 20-7.5-1-2
, AS AMENDED BY P.L.100-2001,
SECTION 23, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 2. As used in this chapter:
(a) "School corporation" means any local public school corporation
established under Indiana law and, in the case of public vocational
schools or schools for children with disabilities established or
maintained by two (2) or more school corporations, shall refer to such
schools.
(b) "Governing body" means:
(1) the board or commission charged by law with the
responsibility of administering the affairs of the school
corporation; or
(2) the body that administers a charter school established under
IC 20-5.5.
(c) "School employer" means:
(1) the governing body of each:
(A) school corporation; or
(B) charter school established under IC 20-5.5; and
(2) any person or persons authorized to act for the governing body
of the school employer in dealing with its employees.
(d) "Superintendent" shall mean:
(1) the chief administrative officer of any:
(A) school corporation; or
(B) charter school established under IC 20-5.5; or
(2) any person or persons designated by the officer or by the
governing body to act in the officer's behalf in dealing with school
employees.
(e) "School employee" means any 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,
and employees performing
security work.
and noncertificated employees.
(f) "Certificated employee" means a person:
(1) whose contract with the school corporation requires that the
person hold a license or permit from the
Indiana state board of
education or a commission thereof as provided in IC 20-6.1; or
(2) who is employed as a teacher by a charter school established
under IC 20-5.5.
(g) "Noncertificated employee" means any school employee whose
employment is not dependent upon the holding of a license or permit
as provided in IC 20-6.1.
(h) "Supervisor" means any individual who has:
(1) authority, acting for the school corporation, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or
discipline school employees;
(2) responsibility to direct school employees and adjust their
grievances; or
(3) responsibility to effectively recommend the action described
in subdivisions (1) through (2);
that is not of a merely routine or clerical nature but requires the use of
independent judgment. The term includes 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.
(i) "Confidential employee" means a school employee whose
unrestricted access to confidential personnel files or whose functional
responsibilities or knowledge in connection with the issues involved in
dealings between the school corporation and its employees would make
the confidential employee's membership in a school employee
organization incompatible with the employee's official duties.
(j)
"Employees "Employee performing security work" means any
school employee whose primary responsibility is the protection of
personal and real property owned or leased by the school corporation
or who performs police or quasi-police powers.
(k) "School employee organization" means:
(1) for certificated employees, any organization which has
school employees as members and one (1) of whose primary
purposes is representing school employees in dealing with their
school employer; and
(2) for noncertificated employees, an organization that has
school employees as members;
and includes any person or persons authorized to act on behalf of such
organizations.
(l) "Exclusive representative" means the school employee
organization which has been certified for the purposes of this chapter
by the board or recognized by a school employer as the exclusive
representative of the employees in an appropriate unit as provided in
section 10 of this chapter, or the person or persons duly authorized to
act on behalf of such representative.
(m) "Board" means the Indiana education employment relations
board provided by this chapter.
(n) "Bargain collectively" means 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. Such
obligation shall not include the final approval of any contract
concerning these or any other items. Agreements reached through
collective bargaining are binding as a contract only if ratified by the
governing body of the school corporation and the exclusive
representative. The obligation to bargain collectively does not require
the school employer or the exclusive representative to agree to a
proposal of the other or to make a concession to the other.
(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, and 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. A failure to reach
an agreement on any matter of discussion shall not require the use of
any part of the impasse procedure, as provided in section 13 of this
chapter. 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, nor shall either such obligation prevent the
school employer or the superintendent from conferring with any
citizen, taxpayer, student, school employee, or other person considering
the operation of the schools and the school corporation.
(p) "Strike" means concerted failure to report for duty, willful
absence from one's position, stoppage of work, or abstinence in whole
or in part from the full, faithful, and proper performance of the duties
of employment, without the lawful approval of the school employer, or
in any concerted manner interfering with the operation of the school
employer for any purpose.
(q) "Deficit financing" with respect to any budget year shall mean
expenditures in excess of money legally available to the employer.
SOURCE: IC 20-7.5-1-5; (03)HB1568.2.3. -->
SECTION 3.
IC 20-7.5-1-5
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 5. (a) 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:
(1) Working conditions, other than those provided in section 4 of
this chapter.
(2) Curriculum development and revision.
(3) Textbook selection.
(4) Teaching methods.
(5) Hiring, promotion, demotion, transfer, assignment, and
retention of certificated employees, and changes to any of the
requirements set forth in
IC 20-6.1-4.
(6) Student discipline.
(7) Expulsion or supervision of students.
(8) Pupil-teacher ratio.
(9) Class size or budget appropriations.
However, any items included in the 1972-1973 agreements between
any employer school corporation and the employee organization shall
continue to be bargainable.
(b) A school employer shall discuss with the exclusive
representative of noncertificated employees and may (but is not
required to) bargain collectively, negotiate, be subject to, or enter
into impasse procedures, or enter into a written contract
concerning the following matters:
(1) Working conditions, other than those provided in section
4 of this chapter.
(2) Selection, assignment, or promotion of personnel.
Any items included in the 2001-2002 agreements between an
employer school corporation and an employee organization
continue to be bargainable.
(c) Nothing shall prevent a superintendent or his designee from
making recommendations to the school employer.
(c) (d) This chapter may not be construed to limit the rights of the
school employer and the exclusive representative to mutually agree to
the matters authorized under
IC 20-6.1-4-14.5.
SOURCE: IC 20-17; (03)HB1568.2.4. -->
SECTION 4. IC 20-17 IS ADDED TO THE INDIANA CODE AS
A
NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2003]:
ARTICLE 17. EMPLOYMENT PROTECTION FOR
EDUCATIONAL EMPLOYEES
Chapter 1. Definitions
Sec. 1. The definitions in this chapter apply throughout this
article.
Sec. 2. "Board" refers to the Indiana education employment
relations board established by
IC 20-7.5-1-9.
Sec. 3. "Classification seniority" means the length of the most
recent continuous service in an employee's classification with a
single employer.
Sec. 4. "Employee" refers to a noncertificated employee (as
defined in
IC 20-7.5-1-2
(g)) of a school corporation.
Sec. 5. "Employer" means a school employer (as defined in
IC 20-7.5-1-2
(c)).
Sec. 6. "Just cause", as the term pertains to the discipline of
employees, includes any of the following:
(1) Falsification of an employment application to obtain
employment through subterfuge.
(2) Knowing violation of a reasonable and uniformly enforced
rule of an employer.
(3) Unsatisfactory attendance, if the employee is unable to
show cause for the employee's absences or tardiness.
(4) Damaging the employer's property through willful
negligence.
(5) Refusing to obey lawful instructions.
(6) Reporting to work under the influence of alcohol in a state
of intoxication or a controlled substance (as set forth in
IC 35-48-2
), consuming alcohol or a controlled substance on
the employer's premises or while operating the employer's
vehicles, or while driving a commercial motor vehicle
committing a disqualifying offense under
IC 9-24-6-8.
(7) Conduct endangering the safety of the employee or any
other employee.
(8) Any breach of a duty in connection with the employee's
employment that is reasonably owed the employer by an
employee.
(9) Conduct endangering the safety of students.
(10) Commission of child molesting (IC 35-42-4-3), child
exploitation (IC 35-42-4-4), vicarious sexual gratification
(IC 35-42-4-5), child solicitation (IC 35-42-4-6), child
seduction (IC 35-42-4-7), or sexual misconduct with a minor
(IC 35-42-4-9).
Sec. 7. "School corporation" has the meaning set forth in
IC 20-7.5-1-2
(a).
Chapter 2. Classification
Sec. 1. An employee may not attain classification seniority until
completion of a probationary period of thirty (30) days, at which
time classification seniority relates back to the employee's date of
hire.
Sec. 2. If a permanent or prolonged reduction within any
classification of employees is determined necessary by an
employer, classification seniority shall be the determining factor in
making the reduction and any subsequent recall from reduction.
Chapter 3. Representation
Sec. 1. An employee is entitled to representation by an employee
organization or legal counsel, or both, during any proceeding
under this article.
Chapter 4. Discipline and Discharge of Employees
Sec. 1. An employee may be disciplined before suspension or
discharge only for just cause as enumerated in
IC 20-17-1-6
(1)
through
IC 20-17-1-6
(8) and must be:
(1) informed in writing of all details of any offense or
violation:
(A) with which the employee is charged; and
(B) that would constitute just cause for discipline; and
(2) given a reasonable time to correct the behavior
constituting the identified offense or violation described in
clause (A).
Sec. 2. A discharge may not take effect unless, at least ten (10)
days before the effective date of the discharge, the employer:
(1) provides the employee with written notice of all offenses or
violations for which the employee is being discharged; and
(2) affords the employee an opportunity to request, in writing,
a hearing before an impartial hearing examiner under
IC 20-17-5.
Sec. 3. A request for a hearing under
IC 20-17-5
must be made
by an employee before the effective date of the discharge. If the
employee fails to request the hearing, the employee is considered
discharged on the effective date of the employer's written notice.
Sec. 4. If an employee requests a hearing under
IC 20-17-5
, the
employer may suspend the employee with pay upon the effective
date of discharge, pending the determination of the hearing
examiner.
Sec. 5. The employer may, without notice, suspend with pay an
employee pending discharge if:
(1) the employer reasonably believes the nature of the
employee's misconduct warrants immediate suspension; or
(2) the suspension is for just cause as enumerated in
IC 20-17-1-6
(9) through
IC 20-17-1-6
(10).
In this case, the employer shall afford to the employee, after the
suspension, the formal procedures described in section 1(1) of this
chapter.
Chapter 5. Hearings
Sec. 1. Upon receipt of a written request by an employee subject
to discharge as described in
IC 20-17-4-2
, the employer shall
request the board to appoint a hearing examiner to preside over
the hearing.
Sec. 2. A hearing examiner has the following duties:
(1) To give the notice provided in section 3 of this chapter.
(2) To schedule the hearing at a specified date, time, and
place, with the authority to postpone the date and time or
change the place for any good cause.
(3) To take full charge of the hearing in accordance with
IC 4-21.5-3-25
and
IC 4-21.5-3-26
, subject to this chapter.
(4) To render a written decision in the matter, including
findings of fact and conclusions of law, that is binding on all
parties as of the date of the decision and that contains a notice
of the right to seek review of the decision before the board.
(5) To file the original of the hearing examiner's findings,
conclusions, and decision, along with the record in the case,
with the board.
(6) To cause a copy of the hearing examiner's findings,
conclusions, and decision to be served upon each of the
parties.
Sec. 3. The following constitutes the hearing procedures by
which an employee may be discharged:
(1) The hearing examiner, not more than five (5) days after
the hearing examiner's appointment, shall send notice to the
parties of the date, time, and location set for the hearing.
(2) The hearing examiner shall conduct the hearing under
IC 4-21.5-3-25
and
IC 4-21.5-3-26.
Sec. 4. Any party to the hearing who is aggrieved by the decision
of the hearing examiner may appeal the decision to the board as
follows:
(1) Not more than twenty (20) days after the date the hearing
examiner files the hearing examiner's findings, conclusions,
and decision, the party aggrieved by the decision may file a
petition for review of the hearing examiner's findings,
conclusions, and decision. The filing and pendency of a
petition for review shall operate to stay the effectiveness of the
decision unless otherwise ordered by the board.
(2) The petition for review must be in writing and be filed
with the board. At the same time, a copy of the petition for
review must also be filed with the opposing party. The petition
must specifically set forth the reasons for the objections of the
aggrieved party to the decision of the hearing examiner.
(3) Not more than ten (10) days after the date on which the
petition for review is filed with the board, any party to the
proceeding before the hearing officer may file a reply to the
petition for review on the board, with simultaneous service
upon the opposing party. The reply must specifically set forth
the party's reply to the objections of the aggrieved party to
the decision of the hearing examiner.
(4) Not more than fifteen (15) days after the filing of a reply
to the petition for review, if any, the board shall render a final
decision consisting of the board's findings of fact, conclusions
of law, and final order in the matter.
(5) A party to the board's final decision may seek judicial
review under
IC 4-21.5-5.
Sec. 5. The board may enforce the board's orders and to take
other appropriate action, including reinstating an employee with
back pay.
Chapter 6. Construction
Sec. 1. This article may not be construed to limit the application
of an agreement negotiated between an employer and the
recognized representative of employees with a particular employer.