Oregon Advisory Opinions January 01, 1975: OP 7135

Advisory Opinion Text

DEPATRMENT OF JUSTICE

100 STATE OFFICE BUILDING

SALEM,OREGON 97310

TELEPHONE:(503)378-6368

January 6, 1975

No. 7135

This opinion is issued in response to a question submitted by Jesse Fasold, Superintendent of Public Instruction.

QUESTION PRESENTED

May a collective bargaining agree­ment between a County Intermediate Education District and the local Education Association validly provide for transfer of an unlimited number of sick leave days from another Oregon school district, or from a school district in another state, for a teacher who taught in such other district the previous year?

ANSWER GIVEN

Yes.

DISCUSSION

The Oregon Public Employe Bargaining Act, ORS 243.650(18), defines "public employer" as "the State of Oregon or any political subdivison therein, including cities, community colleges, school districts , special districts and public and quasi-public corporations, . . . ." (emphasis supplied). ORS 243.656 provides the "policy statement" of the act and subsection (5) states:

"It is the purpose of ORS 243.650 to 243.782 to obligate public employers, public employes and their representatives to enter into collective negotiations with willingness to resolve grievances and disputes relating to employment relations and to enter into written and signed contracts evidencing agreements resulting from such negotiations "....

ORS 243.650(7) provides that the term "employment relations":

"... includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave , grievance procedures and other conditions of employment." (emphasis supplied) It is an "unfair labor practice" for the public employer or its designated representative to refuse ". . .to bargain collectively in good faith with the exclusive representative . . ." ORS 243.672 (1) (e) .

It is clear from a reading of these sections of the Public Employe Bargaining Act that school districts as "public employers" are required to bargain in good faith with the recognized or certified exclusive employe representative or labor organization on all matter of "employment relations" including "direct or indirect monetary benefits" and specifically including "sick leave." The act also makes it clear that the duty to bargain does not carry with it the obligation to come to agreement or to make involuntary concessions. ORS 243.711(4) in defining "collective bargain­ing" states:

"However, this obligation does not compel either party to agree to a proposal or require the making of a concession."

The act also recognizes that the subjects of collective bargaining and the agreements arrived at must be both within the authority of the public employer and lawful in the sense of not violating any prohibitions set forth by statute. ORS 243.702 provides:

"(1) In the event any provision of a collective bargaining agreement is declared to be invalid by any court of competent jurisdiction, by ruling by the board or by inability of the employer or the employees to perform to the terms of the agreement, then upon request by either party all or any part of the entire collective bargaining agreement shall be reopened for negotiation."

In discussing the "arbitration procedure", which may be voluntarily agreed to by the parties and which is required in certain instances of labor dispute, ORS 243.746 requires that an arbiter's award be based upon certain factors including "... the lawful authority of the employer."

It is settled administrative law in Oregon that a statute which creates an administrative agency and invests it with its powers restricts the agency to the powers granted.

Gouge v. David , 185 Or 437, 202 P2d 489 (1949).

ORS 334.125 defines the "status and power" of the Intermediate Education District and Board as follows:

"(1) The intermediate education district is a body corporate.

"(2) The intermediate education district board is authorized to transact all business coming within the jurisdiction of the intermediate education district and may sue and be sued.

"(3) The intermediate education district board shall perform all duties required by law, including but not limited to:

" (a) distribution of such school funds as it is impowered to apportion; "...

"(d) budget and tax levying duties;

"...

" (4) The intermediate education district board may employ and fix the compensation of such personnel as it considers necessary for carrying out duties of the board ..." (emphasis supplied) Since Intermediate Education Districts are authorized to set the "compensation" of their employes and are required by the Public Employe Bargaining Act to negotiate on "direct and indirect benefits including sick leave," the ultimate issue presented is whether there are any statutory mandates or prohibitions which would invalidate the collective bargaining agreement provisions described in the question which is the subject of this opinion.

ORS 342.595 to 342.663 permits and mandates many terms and conditions of employment of school personnel.

ORS 342.595 specifically makes provision for sick leave for teachers. Subsection (2) requires each school district to ". . . allow each teacher at least ten days sick leave at full pay during each year." (emphasis supplied) Subsection (4) requires that annual sick leave not taken shall be allowed to accumulate to at least one hundred days. Subsection (4) states in part:

"Unless the district school board authorizes a greater number, no teacher is entitled to more than one hundred days of accumulated sick leave at full pay." (emphasis supplied) Our reading of this section is that the right to accumulate sick leave is mandatory and the "one hundred days" is a minimum and not a maximum requirement. Nothing in the provision would prevent a district school board from "authorizing a greater number" of days of accumulated sick leave through the medium of collective bargaining or otherwise.

ORS 342.595(4) further provides:

"A district school board is required to permit a teacher to take not to exceed ten days of sick leave at full pay accumulated in another Oregon district." (emphasis supplied) Our reading of this provision is that while a district school board is "required" to permit a teacher to take at least ten days sick leave accumulated in another Oregon district, it is not prohibited by the phrase "not to exceed ten days" to allow, through the medium of collective bargaining or otherwise, a teacher to transfer more than ten days of sick leave at full pay accumulated in another Oregon district. Again, it is our opinion that the provision for "not to exceed ten days of sick leave"

is a minimum requirement and not a maximum limitation.

Lastly, subsection (4) provides that:

"However, no school district shall grant such leave to a teacher who was not employed as a teacher during the preceding school year."

In contrast to the other provisions discussed, this is clearly a prohibition and therefore a limitation on the scope of collective bargaining.

Based upon our reading of subsection (4), it follows that a collective bargaining agreement negotiated in accordance the Oregon Public Employe Bargaining Act, and providing that a teacher may transfer an unlimited number of sick leave days from an Oregon school district after having taught in that district the previous year, is legally valid and binding because it does not conflict with any prohibition set forth by ORS 342.595.

Subsection (4) is silent on the issue of whether a school district is required to allow the transfer of any sick leave accumulated in a school district outside of Oregon. The provision requiring employment as a teacher during the preceding school year does not require such employment to have been in Oregon. Inasmuch as the statute contains no specific prohibition against the transfer of sick leave accumulated in school districts outside of Oregon and the school district has the obligation to bargain on matters of "sick leave," we conclude that a collective bargaining agreement, which provides that a teacher may transfer sick leave accumulated in a school district outside of Oregon after having taught in that district the previous year, is also valid.

While it might be argued that the specific authorization of Intermediate Education District sick leave policy contained in ORS 342.595 limits the school board's discretion to grant, through the collective bargaining process or otherwise, additional or more liberal sick leave benefits, it should be noted that the strict construction of ORS chapter 342 previously adhered to in several opinions of the Attorney General was superseded by a later opinion that a district school board or area education district could pay premiums on life insurance policies for employes of community colleges as a part of the employes' "compensation." 34 Op Atty Gen 807 (1969). That opinion stated in part:

"By the same token the authority granted by ORS 332.505 to district school boards to define the duties, terms and conditions of employment and to 'fix the compensation' of its employes contains a broad grant of authority. It does not appear that the the legislature intended the forms of insurance provided in ORS 342.598(1) to be exclusive of all others which the board might deem to be appropriate compensation for its employes."

This opinion was followed by a later opinion concerning the authority of the board of directors of a rural fire protection district to enter into a contract to provide funds for medical and hospital insurance coverage for employes of the district and their dependants. 34 Op Atty Gen 1103 (1970) . The opinion states in part:

"Thus, the determination of whether a rural fire protection district wishes to extend insurance coverage beyond that indicated in ORS 478.335 [1] or to include coverage for dependants is a matter within the sound discretion of the board. In our opinion there is no legal prohibition against providing such a fringe benefit as a portion of compensation fixed by the board."

Questions of sick leave and transfer of sick leave are validly included within the scope of collective bargaining on compensation and related matters, and on agreement relating to such matters which does not violate any statutory prohibition is accordingly valid.

LEE JOHNSON Attorney General

LJ:WFH:kmb