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Fratus v. Marion Community Schools Board of Trustees12/27/1999
retention of membership therein. (2) cause or attempt to cause a school employer to discriminate against an employee in violation of subsection (a); (3) refuse to bargain collectively with a school employer, if the school employee organization is the exclusive representative; (4) fail or refuse to comply with any provision of this chapter.
Thus, the question at hand is whether the Teachers' claims come within the purview of the foregoing statutes, and if so, whether they were required to file their claims with the IEERB as a jurisdictional prerequisite to filing their Complaint. If the Teachers were required to file their claims with the IEERB, the trial court's order was correct as " party's failure to exhaust its administrative remedies creates a jurisdictional defect and makes a T.R. 12(B)(1) motion to dismiss for lack of subject matter jurisdiction appropriate." Common Council of City of Hammond, 691 N.E.2d at 1328-1329. However, we must first determine if their claims come within the jurisdiction of the IEERB.
A. The Teachers' Claim Against the Association
The Teachers' claim that the Association breached its duty of fair representation by negotiating a new Master Contract for 1998 which greatly reduced their early retirement benefits. The Teachers also claim that the Association colluded with the School Board to deprive them of these benefits. In renegotiating the Master Contract for 1998, the Teachers assert that the Association had an obligation to preserve the early retirement benefits the Teachers elected in 1997.
Additionally, the Teachers contend that they were not required to file their claims against the Association with the IEERB because a breach of the duty of fair representation is not an "unfair practice" listed in the CEEBA. Ind. Code § 20-7.5-1-7.
In response, the Association acknowledges that it owes the Teachers a duty of fair representation; however, the Association contends that the Teachers are required to file their claim with the IEERB because the IEERB has assumed jurisdiction over such claims in the past. The Association argues that:
It is well-settled principle of law that an agency's interpretation of the statutory scheme it administers is entitled to judicial deference. Another recognized rule of statutory construction is that if the legislature fails to change a statute administered by a state agency, then this inaction indicates the legislature's acquiescence in and satisfaction with the administrative construction. A long adhered to administrative interpretation dating from the legislative enactment, with no subsequent change having been made in the statute involved, raises a presumption of legislative acquiescence which is strongly persuasive upon the courts.
Board of School Trustees of Marion Community Schools v. Marion Teachers Ass'n, 530 N.E.2d 309, 311 (Ind. Ct. App. 1988)(citations omitted).
In support of their position, the Teachers rely on Fort Wayne Education Association, Inc. v. Aldrich, 527 N.E.2d 201 (Ind. Ct. App. 1988). In Aldrich, we held that: "we find no grant of authority for the IEERB to intervene in disputes between employees and employee organizations." Id., at 217. The Association contends that the Aldrich case is distinguishable because it dealt with a dispute regarding the collection of fair share fees between a teachers' union and school employees. The Association further argues that the Aldrich court held that the IEERB could not intervene in the dispute because the portion of the CEEBA that prohibits the encouraging or discouraging of membership in school employee organizations, Ind. Code § 20-7.5-1-7(a)(3), only pertains to claims against a school
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