The opinion
VAN HOOMISSEN, J.,
dissenting.
This case is about workload. Workload has been treated by the Employment Relations Board (ERB), the administrative agency that is responsible for the collective bargaining law, ORS 243.650 et seq, as being an “other condition * * * of employment,” which is a subject for mandatory bargaining. 1 ERB held that Tigard Education Association’s (Teachers) proposal to limit the number of students in classrooms and the number of handicapped and exceptionally gifted students assigned to individual teachers is a “workload” issue and, derivatively, an “other condition * * * of employment” about which Tigard School District 23J (District), 2 must bargain collectively. The Court of Appeals *288 affirmed. Tualatin Valley Bargaining v. Tigard School Dist., 106 Or App 381 , 808 P2d 101 (1991).
I would hold that ERB correctly applied the principles set forth in Springfield Education Assoc. v. School Dist., 290 Or 217 , 621 P2d 547 (1980), and Portland Fire Fighters Assoc. v. City of Portland, 305 Or 275 , 751 P2d 770 (1988). There is substantial evidence in the record to support ERB’s finding that Teachers’ proposal relates to workload. I also agree with ERB’s legal conclusion that workload is a “condition * * * of employment” under ORS 243.650(7). Accordingly, I would affirm ERB’s order.
ERB concluded:
“[Teachers] presented ample evidence for [ERB] to conclude that class size is one appropriate measure of workload for teachers. Each student assigned to a teacher requires a certain amount of work by that teacher beyond group instruction; for example, in such areas as grading of tests and other papers, preparation of materials, parent-teacher conferences and individual assistance. The number of pupils assigned, then, does affect the amount of work required of a teacher in a defined period — e.g., a day, a week or a term. Under [ERB’s] holding in OPEU v. State of Oregon, [10 PECBR 51 (1987)], therefore, a proposal to set limits on the number of students assigned to teachers addresses a matter concerning workload and must be bargained about in good faith.”
That conclusion is supported by substantial evidence and must be affirmed.
In reaching its conclusion in this case, ERB interpreted 3 ORS 243.650(7) to include workload as being a matter of “like character” to the specifically enumerated subjects in the statute. 290 Or at 233 . ERB’s legal conclusion was:
“Workload * * * is of general application to all public employes, just as are the [other five] subjects listed in [ORS 243.650(7)]. The measures of workload, of course, may vary from group to group of employes; but so may the measures of a legislatively-specified subject such as monetary benefits; *289 e.g., hourly wage, piece-work rate, monthly salary, or — in the case of school teachers — yearly salary.”
ERB’s choice was not a different choice from the legislative policy; it was a replication of the same choice “by regarding as ‘employment relations’ [a subject] which embod[ies] the same characteristics as ‘monetary benefits, hours, vacation, sick leave, [and] grievance procedures[.]’ ” 290 Or at 233 . ERB’s interpretation of law was permissible, and we must affirm it. ORS 183.482(8)(a).
The majority reads what ERB did as having been done on a categorical, rather than a case-specific, basis. The majority concludes that ERB erred in its interpretation of ORS 243.650(7) and holds that it is now for ERB to decide whether Teachers’ class size proposal concerns a condition of employment, “considering the proposal’s effect on working conditions in the workplace that is the subject of the proposal.” 314 Or at 286. 4 ERB is directed to “consider the individual factual circumstances presented” by this case. Id. at 286. ERB already has done that.
In this case, ERB first looked at the subject of Teachers’ proposal, i.e., workload. ERB found that workload is a mandatory subject of bargaining. ERB next looked at Teachers’ specific proposal and to its effect on working conditions in the workplace that is the subject of the proposal, i.e., District’s schools. ERB concluded that, because class size affects a teacher’s workload, Teachers’ proposal concerns an “other condition * * * of employment.” In its analysis, ERB decided this case on its own facts. I read what ERB did as being case-specific.
The legislative policy behind ORS 243.650 is to direct potential labor disputes into the negotiations process. ERB’s order to bargain the issue of class size furthers this legislative policy. ERB’s order does not dictate an outcome. ORS 243.650(4). It simply requires the parties to “confer in good faith” about the proposal. Id. If the subject of the proposal is appropriate for mandatory bargaining as it is here, the merits and wisdom of the proposal must be left to the parties. ERB’s *290 interpretation is consistent with both the policy of chan-nelling potential disputes into the bargaining process and with this court’s analysis of OES 243.650 in Springfield and Portland Fire Fighters.
I respectfully dissent.
Fadeley and Unis, JJ., join in this opinion.
ORS 243.650 provides in part:
“As used in ORS 243.650 to 243.782, unless the context requires otherwise:
<<* * * * *
“(4) ‘Collective bargaining’- means the performance of the mutual obligation of a public employer and the representative of its employees to meet at reasonable times and confer in good faith with respect to employment relations, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party. However, this obligation does not compel either party to agree to a proposal or require the making of a concession.
<<$ ‡ * ‡ *
“(7) ‘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.”
The District’s refusal to bargain on the proposal, thus, was an unfair labor practice. ORS 243.672 provides in part:
“(1) It is an unfair labor practice for a public employer or its designated representative to do any of the following:
it* * * * *
“(e) Refuse to bargain collectively in good faith with the exclusive representative. ’ ’
The effect of a proposal on an employer does not affect its status as mandatory if, in fact, it addresses a matter concerning “other conditions of employment.” Portland Fire Fighters Assoc. v. City of Portland, 305 Or 275, 284 , 751 P2d 770 (1988).
The question whether any subject is like or unlike the matters listed in ORS 243.650(7) is “one of interpretation, not of discretion.” Springfield Education Assoc. v. School Dist., 290 Or 217, 233 , 621 P2d 547 (1980).
District does not argue that ERB made an inaccurate factual determination as to whether Teachers’ class size proposal related to workload or that the proposal was “a sham.” Portland Fire Fighters Assoc. v. City of Portland, supra, 305 Or at 285 .