State of Oregon, Department of Human Resources, Mental Health & Developmental Disability Services Division v. AFSCME Council 75

866 P.2d 498, 125 Or. App. 625, 1994 Ore. App. LEXIS 18
CourtCourt of Appeals of Oregon
DecidedJanuary 5, 1994
DocketDR-1-92; CA A78077
StatusPublished

This text of 866 P.2d 498 (State of Oregon, Department of Human Resources, Mental Health & Developmental Disability Services Division v. AFSCME Council 75) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Oregon, Department of Human Resources, Mental Health & Developmental Disability Services Division v. AFSCME Council 75, 866 P.2d 498, 125 Or. App. 625, 1994 Ore. App. LEXIS 18 (Or. Ct. App. 1994).

Opinion

EDMONDS, J.

Petitioner, State of Oregon, appeals from a declaratory ruling, ORS 183.410, by the Employment Relations Board (ERB) that behavioral group home employees are guards at a mental hospital within the meaning of ORS 243.736(1) and, therefore, are prohibited from striking. The apparent motivation for the petitioner seeking a declaration in its favor is that it would not be required to enter into binding arbitration with respondent if the bargaining unit members do not fall within the purview of the statute. ORS 243.742. We affirm.

ORS 243.736(1) provides:

“It shall be unlawful for any emergency telephone worker, police officer, firefighter or guard at a correctional institution or mental hospital to strike or recognize a picket line of a labor organization while in the performance of official duties.”

ERB made extensive findings of fact about behavior group homes and what their employees do at the homes, which petitioner acknowledges are supported by substantial evidence.1 It found that petitioner, through the Mental Health and Developmental Disability Services Division, operates three “behavioral” group homes for individuals with developmental disabilities.2 The facilities are called behavioral because the residents have histories of various “inappropriate and unacceptable behaviors.” One of the purposes of the facilities is to attempt to manage and modify those behaviors.

The group homes, which are located in residential communities, are considered treatment facilities and operate 24 hours a day, seven days a week. They are equipped with a [628]*628security system that is connected to interior and exterior doors and windows. If a door or window is opened, an alarm sounds. The alarm is generally off during the day. An alarm control panel indicates specifically which door or window has been opened. The security system includes an intercom system, which is connected to the residents' bedrooms and can be used to monitor the residents while they are in their rooms. In addition, the windows are made of extra-thick shatterproof glass; the walls are backed by plywood; the doors are solid-core metal framed; and each home is enclosed by a six-foot chain link fence with a single unlocked gate.

Each of the three homes has five residents. All fifteen residents came from Fairview Training Center (Fairview). Thirteen of those were from secure cottages at Fairview, and most have been in other community programs but were returned to Fairview because of misconduct or because they could not adapt to a less-structured environment. Two of the residents are in the homes involuntarily. The others are there on a voluntary basis and have the legal right to leave the program.3 ERB found that all five residents at one of the homes are not considered any less dangerous than when they lived at Fairview, and that they “are considered risks to the community.” They have histories of sexual assaults, particularly on children, and most are repeat offenders. ERB found that these residents

“can become noncompliant and physically aggressive * * * [including] striking other clients and staff; kicking; biting; scratching; throwing furniture or other objects. These behaviors are unpredictable.”4

[629]*629Each group home has approximately 18 employees, including a manager who is excluded from the bargaining unit. All current bargaining unit members have worked at Fairview. Twenty-one of the employees have worked in “guard” positions while at Fairview. Respondent is the exclusive representative of employees who work in the group homes. There are three job classifications in the bargaining unit at the group homes: habilitative training technician 2 (HTT2); agency program trainer (behavior specialist); and manual arts instructor (vocational specialist). All staff members, regardless of classification, are required to monitor residents’ behavior and location, to be familiar with residents’ behavior prescriptions,5 to be alert to actions that indicate an escalation of inappropriate resident behavior, and to be prepared to intervene to quell the behavior. Although considered a last resort, staff “regularly” physically restrain residents through the use of personal holds.

Petitioner argues that ERB erred in concluding that the group homes are “mental hospitals” and that the bargaining unit members are “guards” within the meaning of ORS 243.736(1). We review ERB’s order to determine whether the agency held correctly that the statute applies to the bargaining unit’s members. In construing statutes, our task is to ascertain the intention of the legislature when it enacted ORS 243.726(1). In determining the intent of the legislature, we begin with the text and context of the provision. Other provisions of the same statutory scheme are part of that context. Whenever possible, provisions of a statute are construed so as to give effect to each. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993).

We hold that the words “guard” and “mental hospital” within the meaning of ORS 243.736(1) are inexact terms. See Springfield Education Assn. v. School Dist., 290 Or 217, 224, 621 P2d 547 (1980); see also AFSCME v. Executive Dept., 52 Or App 457, 474, 628 P2d 1228, rev den 291 Or 771 (1982); Fairview Training Center v. AFSCME, 8 PECBR 6666, 6682 (1984). Our task on review of agency orders construing inexact terms is to discern and apply the [630]*630legislative policy that inheres in the term by its use in the statute. 290 Or at 225. To that end, an agency interpretation

“may be given an appropriate degree of assumptive validity if the agency was involved in the legislative process or if we infer that it has expertise based upon qualifications of its personnel or because of its experience in the application of the statute to varying facts.” 290 Or at 227.

We first consider petitioner’s argument that ERB erred in concluding that the behavioral group homes are “mental hospitals” within the meaning of ORS 243.736(1). Petitioner argues that the legislature intended the term “mental hospital” to cover only facilities containing dangerous mentally ill or mentally retarded residents with security tantamount to that of a prison. It also argues that the legislature’s purpose underlying the authorization of group homes precludes their classification as mental hospitals. We disagree with both arguments.

In AFSCME v. Executive Dept., supra,

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Related

American Federation of State v. Executive Department
628 P.2d 1228 (Court of Appeals of Oregon, 1981)
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859 P.2d 1143 (Oregon Supreme Court, 1993)

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Bluebook (online)
866 P.2d 498, 125 Or. App. 625, 1994 Ore. App. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-oregon-department-of-human-resources-mental-health-orctapp-1994.