Smith v. SCHOOL DIST. NO. 1, MULTNOMAH CTY.

578 P.2d 820 (1978)

34 Or.App. 435

Rodney R. SMITH, Respondent, v. SCHOOL DISTRICT NO. 1, Multnomah County, Oregon, Appellant.

Court of Appeals of Oregon.

Decided May 15, 1978.

Argued and Submitted March 20, 1978.

*821 Graham M. Hicks, Portland, argued the cause for appellant. With him on the brief was Mark C. McClanahan, Portland, and Miller, Anderson, Nash, Yerke & Wiener, Portland.

Vincent G. Ierulli, Portland, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and JOHNSON, GILLETTE and ROBERTS, JJ.

JOHNSON, Judge.

Plaintiff, an employee of defendant School District, served on active duty with the Oregon Air National Guard for three five-day periods, Monday through Friday, between March 1 and March 21, 1976. The School District paid plaintiff's wages for the eleven working days missed during the period between March 1 and March 15, but declined to pay him for the additional four missed working days between March 16 and March 21. Pursuant to the collective bargaining agreement between the School District and the employees, plaintiff first pursued his claim for the four days pay as a grievance which eventually was submitted to arbitration. The arbitrator affirmed the School District's action, and plaintiff then instituted this action for damages. The trial court concluded that plaintiff was entitled to 15 working days of military leave under ORS 408.290(1) and awarded him $114 in damages together with costs and attorney's fees. The School District appeals.

Assuming arguendo that plaintiff's action was not barred by the arbitrator's decision, the trial court erred in its interpretation of ORS 408.290(1). That statute provides that public employees are entitled "for all periods of annual active duty for training * * to a leave * * * for a period not exceeding 15 days * * * without loss of pay * * *." (Emphasis supplied.) Originally enacted in 1951, the statute was amended in 1955 to increase the number of days from 14 to 15. Oregon Laws 1951, ch. 407; Oregon Laws 1955, ch. 104. It was again amended in 1969 by inserting the words "annual" and "for training" and including service in the National Guard Reserve as a qualifying form of military duty. Oregon Laws 1969, ch. 368. While the reference in the statute to "a leave * * * for a period not exceeding 15 days," (emphasis supplied), supports the School District's contention that the statute entitles public employees to only one military leave for a period of not more than 15 consecutive calendar days, in another context it is arguable that the statute was intended to cover 15 working days. However, administrative practice since 1951 of both the state and the defendant School District has been consistent with the School District's position here. See Oregon Administrative Rules, ch. 105, § 74-300 (Executive Department, Personnel Division Rules); 25 Op.Att'y Gen. 219 (Or. 1951); 33 Op.Att'y Gen. 100 (Or. 1966); 37 Op.Att'y Gen. 702 (Or. 1975). This longstanding administrative practice, coupled with the legislative history, indicates that the legislature was aware of the practice and acquiesced in it. See 2A Sutherland, Statutory Construction, § 49 (4th Ed. 1973); Civil Rights Div. v. Williams, 280 Or. 595, 573 P.2d 270 (1977); Allen v. Multnomah County, 179 Or. 548, 173 P.2d 475 (1946).

Reversed.