OFFICIAL OPINION No. 31

OFFICIAL OPINION No. 31 Public Employe Relations Act---Publi c School Code-Sabbatical leave-Col· lective bargaining 1. Sabbatical leave benefits for public school employes come within the permitted areas for collective bargining negotiations. However any provisions of a collective bargiuing agreement on sabbatical ' leave which are in conflict with tlle statuto;'Y requirements on the subject are void and unenfo1·ceable. 2. Certain of the statutor_y provisi_ons on sabl;atical leave are non-bargin· able since such prov1s10ns specifically state in detail the requirements OPINIONS OF THE ATTORNEY GENERAL 75 for ~ligibility in the granting of leave and specifically spell out the bene11ts that a re to be provided while on leave. Honorable John C. Pittenger Secretary Department of Education Harrisburg, Pennsylvania Dear Secretary Pittenger: Harrisburg, Pa. April 9, 1973 You have asked whether or not the provisions of the Public Employe Relations Act, 1970, July 23, P.L. 563, 43 P .S. §1101.101 et seq., limit the ability of the parties to a collective bargaining agreement to enlarge or modify the sabbatical leave benefits provided by the General Assembly in Sections 1116 to 1171 of the Public School Code of 1949, 24 P.S. §§11-1166 to 11-1171. You are advised that provisions of a collective bargaining agreement on sabbatical leave are void and unenforceable to the extent that they are in violation of, in conflict with, or inconsistent with the statutory provisions on sabbatical leave. The permitted areas for collective bargaining negotiations under the Public Employe Relations Act are stated in Article VII on "The Scope of Bargaining," Section 702 of the Act: "Public employers shall not be required to bargain over matters of inherent managerial policy, which shall in- clude but shall not be limited to such areas of discretion or policy as the functions and programs of the public employer, standards of services, its overall budget, u- tilization of technology, the organizational structure and selection and direction of personnel. Public employ- ers, however, shall be required to meet and discuss on policy matters affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by public employe representatives." 43 P.S. §1101.702." Sabbatical leave benefits come within the permitted areas for collective bargaining negotations since they qualify as an ele- ment of "terms and conditions of employment." However, all of the permitted areas for collective bargaining are subject to the restrictions of Section 703 of the Act which provides that: "The parties to the collective bargaining process shall not effect or implement a provision in a collective bar- gaining agreement if the implementation of that pro- vision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsyl- vania or the provisions of municipal home rule chart- ers." 43 P.S. §1101.703 It is clear that the legislature intended Section 703 to refer to and to act as a limitation on the areas open for collective bar- 76 OPINIONS OF THE ATTORNEY GENERAL gaining negotiations found in Section 702. o.f the Act, since Sec- tion 702 is the only section of the Act defimmg those areas prop- er for bargaining. Thus, although sa~batical l~a:i-e benefi~s ~ome within the permitted areas for colle.ct~ve bargammg negotiati~ns, any provisions of a collective bargam~ng agreef!lent ?n sabbatical leave must be examined for a possible conflict with the stat- utory requirements on that subject. Where a conflict exists, the provisions of the collective bargaining agreement are void and unenforceable. The non-bargainable nature of certain sabbatical leave pro- visions is illustrated by the Pennsylvania Supreme Court in the case of Halco v . Township School Disitrict, 374 Pa. 269, 97 A. 2d 793, 794 ( 1953). In that case, a teacher first took a leave of ab- sence for one year, and then the school district granted him an extension for two more years. The Supreme Court held that: "Under the circumstances outlined by the Act he was not entitled to a three year leave of absence in success- ive periods of one year each. VI e cannot rewrite the statute: Commonwealth ex rel. Cartwright, 350 Pa. 638, 644, 40 A. 2d 30, 155 A.L.R. 1088. Therefore, when the plaintiff was absent for three consecutive years with- out statutory authority, the seniority rights began only when he was reemployed by the Board, to wit, Sept- ember 1, 1945." Sabbatical leave is an employee benefit created by the legis- lature for employees of the public school system, 24 P.S. §11- 1166 to 11-1171. Certain of the statutory provisions on sabbati- cal leave are quite specific, stating in detail the requirements for eligibility for granting the leave, and spelling out the bene- fits that are to be provided while on leave. These non-bargain- able provisions are as follows: ( 1) To qualify for sabbatical leave, a person must complete ten ( 10) years of satisfactory service in the public school sys- tem of the Commonwealth. 24 P.S. §11-1166; ( 2) Subsequent to the granting of the first sabbatical leave, one sabbatical leave of absence "shall be allowed after each seven years of service." 24 P.S. §11-1166; ( 3) To qualify for sabbatical leave, a person must agree "to return to his or her employment with the school district for a period of not less than o!1e school term immediately following such leave of absence." 24 P.S. §11-1168; ( 4) A person on sabbatical leave "shall receive one-half of his or her regular salary" while on sabbatical leave. 24 P.S. §11-1169·; and ( 5) Appli.cations for sabbatic.al l~ave "shall be given prefer- ence, according to years of service smce the previous sabbatical leave of applicant." 24 P.S. §11-1167. OPINIONS OF' THE ATTORNEY GENERAL 77 Other of the relevant statutory provisions leave the board of school directors of a school district certain areas of discretion. The school board has the discretionary power to grant sabbatical leave for purposes other than those specified; to waive the re- quirement of five years of consecutive service in the local dis- trict; and to extend the sabbatical leave up to one full term where the employee becomes ill while on leave, 24 P .S. §11-1166. The school board has the discretionary power to make regulat- ions governing the granting of the leave ( 24 P .S. §11-1167 ) and requiring compliance with the terms of the leave ( 24 P.S. §11- 1171) . In addition, the school board has the power to waive the requirement that the employee must return to service at the completion of the leave, 24 P .S. §11-1168. You are advised, therefore, that certain of the statutory pro- visions on sabbatical leave are non-bargainable since such pro- visions specifically state in detail the requirements for eligibility in the granting of leave and specifically spell out the benefits that are to be provided while on leave. Those provisions on sabbatical leave which give the board of school directors of a school district discretion are bargainable. Very truly yours, LILLIAN B. GASKIN Deputy Attorney General ISRAEL P ACKEL Attorney General