Jefferson Consol., Etc. v. Ind. Ed. Emp. Rel. Bd.

380 N.E.2d 93 (1978) THE BOARD OF SCHOOL TRUSTEES OF THE WORTHINGTON-JEFFERSON CONSOLIDATED SCHOOL CORPORATION, Appellant (Plaintiff below), v. INDIANA EDUCATION EMPLOYMENT RELATIONS BOARD, Franklin K. Dewald, As Chairman of the Indiana Education Employment Relations Board, and Steven Walton, Donald Terrell, and Billie Hunter, Appellees (Defendants below). No. 1-1277A308. Court of Appeals of Indiana, First District. September 5, 1978. *94 William M. Evans, Bose & Evans, Indianapolis, Harvey K. Ramsey, Ramsey & Black, Vincennes, for appellant. Theodore L. Sendak, Atty. Gen., William G. Mundy, Deputy Atty. Gen., for IEERB and DeWald. Jonathan L. Birge, Richard J. Darko, Bingham Summers Welsh & Spilman, Indianapolis, for Steven Walton, Donald Terrell and Billie Hunter. LOWDERMILK, Judge. ON PETITION FOR REHEARING Petitions for rehearing and briefs in support thereof have been filed by the defendants-appellees, the Indiana Education Employment Relations Board (IEERB), and Steven Walton, Donald Terrell, and Billie Hunter (Teachers). A brief in opposition to the petition for rehearing was filed by plaintiff-appellant, Board of School Trustees of Wortington-Jefferson Consolidated School Corporation (School Board). In their petitions for rehearing IEERB and Teachers both contend that this court erred in holding that the IEERB is without power to make final orders of reinstatement. They also contend that this court erred in seemingly not acknowledging that the trial court has the power to order that back wages be paid to the illegally discharged teachers. This court in its opinion of May 9, 1978, which is found at 375 N.E.2d 281, set forth the law governing the legislative empowering of administrative agencies. In that opinion we stated that an administrative agency can be given a power only by specific grant from the legislature. We held in our opinion of May 19, 1978 that IC 1971, 20-7.5-1-11 (Burns Code Ed.) contains no language which could reasonably be construed to grant the IEERB the power to issue final orders reinstating aggrieved teachers with or without back pay. Both the IEERB and Teachers take exception to that holding. The IEERB and Teachers both contend that the following emphasized portions of IC 20-7.5-1-11, supra, specifically grant the IEERB the power to issue final orders of reinstatement with or without back pay: "Prevention of unfair practices. — Unfair practices shall be remediable in the following manner: (a) Any school employer or any school employee who believes he is aggrieved by an unfair practice may file a complaint under oath to such effect, setting out a summary of the facts involved and specifying the section of this chapter [20-7.5-1-1 - 20-7.5-1-14] alleged to have been violated. (b) Thereafter, the board shall give notice to the person or organization against whom the complaint is directed and shall determine the matter raised in the complaint, and appeals may be taken in accordance with IC 1971, 4-22-1 [4-22-1-1 - X-XX-X-XX]. Testimony may be taken and findings and conclusions may be made by a hearing examiner or agent of the board who may be a member thereof. The board, but not a hearing examiner or agent thereof, may enter such interlocutory orders after summary hearing as it deems necessary in carrying out the intent of this chapter. [IC 1971, 20-7.5-1-11, as added by Acts 1973, P.L. 217, § 1, p. 1080.]" (Our emphasis) The IEERB and Teachers argue that the use of the word "remediable" gives the IEERB the right to redress a wrong, that the use of the phrase "shall determine the matter" empowers the IEERB to administer a remedy, as well as to determine the facts, in order to completely resolve the dispute, and that by allowing appeals to be taken under IC 1971, 4-22-1-1, et seq. (Burns Code Ed.), the legislature implies that the IEERB has the power to make final orders or determinations. *95 The use of the above emphasized language gives no conclusive resolution to the issue in the case at bar. For example, "remedy" implies relief as well as cure, "determine the matter" can simply mean "decide whether or not a school employer or employee has been aggrieved by an unfair labor practice," and a final order or determination for the purposes of bringing an appeal under IC 4-22-1-1 et seq., supra, equally applies to final determinations of facts, as well as to final orders of specific relief. The key factor in determining whether the legislature makes a specific grant of power to an administrative agency is the specificity of the language. Two examples are worthy of note: (1) In IC 20-7.5-1-11(b), supra, the statute under scrutiny in the case at bar, the legislature specifically granted the IEERB the power to issue interlocutory orders of reinstatement; such is a specific grant of power. (2) In IC 1971, 22-6-4-8(a)(2) (Burns Supp. 1977), part of a statute, which for other reasons, has been declared unconstitutional,[1] but is illustrative for the purpose of resolving the point at issue in the case at bar, it states in part: "... If upon the preponderance of the testimony taken the board shall be of the opinion that any person named in the complaint has engaged in or is engaging in an unfair labor practice, then the board shall state its findings of fact and shall issue and cause to be served on that person an order requiring that he cease and desist from these unfair labor practices, and that he take such affirmative action, including reinstatement of employees with or without back pay as will effectuate the policies of this chapter [22-6-4-1 - XX-X-X-XX]: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or employees' organization, as the case may be, responsible for the discrimination suffered by him. Such order may further require such person to make reports from time to time showing the extent to which he has complied with the order." IC 22-6-4-8(a)(2) is illustrative of the fact that when the legislature wants to make a specific grant of power to an administrative agency, it knows how to do so. Ironically, the board that was specifically granted the power to reinstate with or without back pay a person aggrieved by an unfair labor practice under that act is the same IEERB which is a party in the case at bar. It should be noted, however, that certificated employees of school corporations are specifically excluded from the coverage of that act. See IC 1971, 22-6-4-1(c) (Burns Supp. 1977). This court is of the opinion that if the legislature had intended to make a specific grant of power to the IEERB, enabling it to issue final orders of reinstatement for certified employees of school corporations with or without back pay under IC 20-7.5-1-11, it would have clearly done so. In that it did not we must assume that no such power was granted. In our opinion of May 9, 1978 we stated that after reviewing the factual determinations of the IEERB the trial court should "fashion a remedy to cure whatever injustice has taken place" and "should give whatever other relief is just and equitable." Both the IEERB and Teachers have expressed concern that we have made no provision for the trial court to make an award for back pay. In order to avoid future confusion we now state that the trial court has the power to award back pay,[2] and from the record with which we have been presented such would appear to be merited. *96 For the reasons stated herein the petitions for rehearing of the IEERB and Teachers are hereby denied. LYBROOK, P.J., and ROBERTSON, J., concur. NOTES [1] See Indiana Education Employment Relations Board v. Benton Community School Corporation (1977), Ind., 365 N.E.2d 752. [2] In Jones Drilling Corporation v. Rotman (1964), 245 Ind. 10, 195 N.E.2d 857, 860, it states: "Where an essential part of a cause is exclusively of equitable jurisdiction, the whole case is drawn into equity. This is true, even though certain elements of the case may involve proceedings at law...." Although money damages are traditionally legal remedies, they may be awarded under a court's equitable powers where, as in the case at bar, the nature of the action is essentially equitable.