Portland General Elec. Co. v. Bureau of Labor and Industries
| Decision Date | 20 April 1993 |
| Citation | 842 P.2d 419,116 Or.App. 356 |
| Parties | PORTLAND GENERAL ELECTRIC COMPANY, Petitioner, v. BUREAU OF LABOR AND INDUSTRIES, Respondent. 03-89; CA A51280. * |
| Court | Oregon Court of Appeals |
John R. Faust, Jr., Portland, argued the cause for petitioner. With him on the brief were Schwabe, Williamson & Wyatt and Mary Ellen Hoffman, Portland.
Timothy J. Vanagas, Gresham, argued the cause for respondent. With him on the brief were Jennings & Vanagas, Gresham, Lawrence I. Evans, Michael S. Evans, and Grenley, Rotenberg, et al., Portland.
Monica A. Smith, Elizabeth McKanna and Bennett & Durham, Portland, filed a brief amicus curiae for IBEW Local 125, Oregon Educ. Ass'n, AFSCME Council No. 75 and Oregon AFL-CIO.
DE MUNIZ, Judge.
Petitioner seeks review of an order of the Commissioner of the Bureau of Labor and Industries (BOLI) that held that petitioner had engaged in an unlawful employment practice. ORS 659.360. It assigns error to BOLI's conclusion that an employee was entitled to use his accrued paid sick leave as parental leave, even though he was not "sick" within the definition of his employment agreement or company policy. 1 We affirm.
The employee is a service inspector and a member of the International Brotherhood of Electrical Workers (IBEW). In March, 1988, he requested 12 weeks of parental leave, composed of two weeks of accrued vacation leave, three days of accrued sick leave available for elective surgery and nine weeks and two days of other accrued sick leave. Petitioner denied the request, because the collective bargaining agreement in effect between petitioner and IBEW provides that sick leave is to be used only when an employee is actually sick or injured. 2 Petitioner later granted the employee's amended request for 10 weeks of parental leave, which substituted seven weeks and two days unpaid leave for the nine weeks and two days paid sick leave.
BOLI's decision was based on ORS 659.360(3), which provides:
(Emphasis supplied.)
Petitioner argues that the emphasized language means that an employee may use paid sick leave during parental leave only if the employee is sick, as defined by the collective bargaining agreement. 3 BOLI concluded that the employee's right to take that leave is not subject to the preconditions for use of sick leave contained in the collective bargaining agreement.
We begin with the language of the statute. Whipple v. Howser, 291 Or. 475, 479, 632 P.2d 782 (1981). It says that an employee "shall be entitled to utilize any accrued * * * sick leave * * * during the parental leave." (Emphasis supplied.) "Entitled to utilize" must mean "has a right to use." The only limit on that right to use sick leave during a parental leave is that the leave have accrued. Period. The provision simply says that, if the leave is accrued, the employee has a right to use it during the parental leave. That should be the end to a simple statutory question.
However, petitioner argues, and the dissenters agree, that the right to use paid sick leave during the parental leave is subject to the preconditions for use of the leave provided in the collective bargaining agreement. The easy answer to that contention is that the statute does not include that limitation, and we are not at liberty to add it. ORS 174.010. In addition, careful review of the statutory language, both in isolation and in context, leads inescapably to the conclusion that that interpretation is inconsistent with legislative intent.
The sole modifier before "vacation leave" and "sick leave" is "accrued." That modifier has a definite meaning in the employment context. As the amicus brief so ably explains, there is a difference between "accrued" leave, which is the maturation or vesting of the right to a benefit, usually based on completion of periods of employment; "eligibility" for leave or other benefits, which is the meeting of the threshold legal requirements, such as permanent employment versus temporary employment; and "entitlement" to use benefits, which is the result of fulfillment of preconditions to use, such as illness in the case of sick leave. 4 By providing a single precondition for use of sick leave during parental leave, that the leave have accrued, the legislature did not limit the use of that leave to sick leave the employee would otherwise be entitled to use under a collective bargaining agreement. 5
Furthermore, the contrast between the two sentences in subsection (3) makes it patently clear that the employee's right to use accrued sick leave is not otherwise limited by the collective bargaining agreement. The first sentence, which sets out the employee 's right to use accrued leave, does not refer to employment agreements:
"The employee seeking parental leave shall be entitled to utilize any accrued vacation leave, sick leave or other compensatory leave, paid or unpaid, during the parental leave." (Emphasis supplied.)
In contrast, the second sentence says:
"The employer may require the employee seeking parental leave to utilize any accrued leave during the parental leave unless otherwise provided by an agreement of the employer and the employee, by collective bargaining agreement or by employer policy." (Emphasis supplied.)
Thus, the employer's right to require an employee to use accrued leave is specifically limited by any contrary agreement. When the legislature includes limiting language in one sentence of a subsection and excludes it in another, we can divine an intent that the limitation apply only as specified.
Our reading of ORS 659.360(3) comports with ORS 659.360(6):
"The parental leave required by subsection (1) of this section is not required to be granted with pay unless so specified by agreement of the employer and employee, by collective bargaining agreement or by employer policy."
The subsection shows the distinction between a new kind of mandated leave, parental leave, and other types of leave that an employee may have accrued. Although parental leave per se need not be paid, an employee is entitled to use other types of leave, paid or unpaid, during the 12-week parental leave period. Subsection (6) makes clear that an employer need not provide a new type of paid leave in addition to the other types of leave already provided, unless required by an employment agreement. Regardless of the employment agreement, however, the employer must allow an employee a 12-week period for parental leave, which is unpaid unless the employee has accrued other paid leave that the employee elects to take or that the employer requires the employee to take during that period.
Finally, to the extent that there is any ambiguity, the legislative history supports BOLI's and our reading. The original draft of the bill provided that "[t]he leave required by subsection (1) of this Act may be unpaid leave or any other leave the employer and employe agree upon or any leave specified or allowed by any collective bargaining agreement." That language was changed to say: "The leave, with preference given to accumulated sick leave and vacation leave, required by subsection (1) of this section may be paid or unpaid leave or any other leave the employer and employe agree upon or any leave specified or allowed by any collective bargaining agreement." Finally, that subsection was changed and subsection (6) added, to read essentially as it now reads. Representative Kopetski explained that the final change was to clarify the meaning in the second version:
Tape Recording, House Committee on Labor, March 18, 1987, Tape 61, Side B. (Emphasis supplied.)
The language of the first draft allowed the leave to be unpaid unless otherwise agreed. Under the second draft language, the legislature indicated a preference for accumulated sick leave and vacation leave, or any other leave agreed on by the employer and employee. Clearly, it was anticipated that the employee would use accumulated sick and vacation leave during the parental leave, i.e., concurrently with, rather than as a replacement for, the mandated leave. The changes in the final draft added the employer's right to require the employee to use that leave, if the employee did not elect to do so, in order to prevent extended absences beyond 12 weeks. It also clarified that the legislature did not intend a newly mandated paid parental leave, but that an employment agreement could provide for paid parental leave.
A careful reading of the Parental Leave Law persuades us that the legislature found a balance between the employee's need for time off to care for new family members during the critical first weeks and the employer's need for a stable work force. The law provides that an employee must be granted up to 12 weeks leave, if requested, and can elect to use any accrued leave, paid or unpaid, during that 12-week period. On the other hand, if the employee does not make the election to use accrued leave, the employer can force the employee to use the leave, subject to any agreement limiting that right. The purpose was to eliminate the danger that the employee might take 12 weeks of unpaid parental leave, during which time a replacement might need to be found, and then...
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Portland General Elec. Co. v. Bureau of Labor and Industries
...accrued paid sick leave as part of the parental leave that he was authorized to take under ORS 659.360. 1 PGE v. Bureau of Labor and Industries, 116 Or.App. 356, 842 P.2d 419 (1992). The issue is whether ORS 659.360 allows an employee to utilize accrued paid sick leave as part of parental l......
- Portland General Elec. Co. v. Bureau of Labor and Industries