Baltimore Bldg. and Const. Trades Council AFL-CIO v. Barnes, AFL-CIO

• Decision Date: 02 April 1981
• Docket Number: No. 32,AFL-CIO,32
• Citation: 427 A.2d 979,290 Md. 9
• Parties: , 24 Wage & Hour Cas. (BNA) 1333, 94 Lab.Cas. P 55,341 BALTIMORE BUILDING AND CONSTRUCTION TRADES COUNCILv. J. Gordon BARNES et al.
• Court: Maryland Court of Appeals

Page 9

290 Md. 9

427 A.2d 979, 24 Wage & Hour Cas. (BNA) 1333,

94 Lab.Cas. P 55,341

BALTIMORE BUILDING AND CONSTRUCTION TRADES COUNCIL AFL-CIO v. J. Gordon BARNES et al.

No. 32.

Court of Appeals of Maryland.

April 2, 1981.

Howard J. Schulman, Baltimore (Peter G. Angelos, Baltimore, on the brief), for appellant.

Leland S. Van Koten, Baltimore (H. Emslie Parks and Wright & Parks, Baltimore, on the brief), for J. Gordon Barnes.

Stephen H. Sachs, Atty. Gen., and Henry R. Wolfe, Asst. Atty. Gen., Baltimore, on the brief for Commissioner of Labor and Industry.

Before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

We shall here hold that a labor union council composed of a number of unions is not an "interested person" within the meaning of Maryland Code (1957, 1979 Repl. Vol.) Art. 100, § 101(c) pertaining to a hearing before the Commissioner of Labor and Industry on a complaint that the employer has violated Art. 100, §§ 96-107A, the Maryland Prevailing Wage Law (the Act), as to the rate of wages to be paid on a public works project. ¹ Accordingly, we shall affirm the judgment of the Court of Special Appeals in Barnes v. Comm'r of Labor & Indus., 45 Md.App. 396, 413 A.2d 259 (1980).

Section 101(c) states in pertinent part:

(c) Hearing; filing of order. Within thirty (30) days after an investigation has been completed, the Commissioner shall order a hearing thereon at a time and place to be specified and shall give notice thereof ... (to) all interested persons, including the interested public body. Every interested person shall have an opportunity to be heard in respect to the matters complained of .... The Commissioner in such an investigation and hearing shall be deemed to be acting in a judicial capacity and shall have the right to issue subpoenas, administer oaths, and examine witnesses.... (U)pon such hearing and investigation, the Commissioner shall determine the issues thereon and shall make and file an order in his office stating such determination and forthwith serve a copy of such order, together with notice of filing upon the public body interested, and the parties to such proceeding ....

The controversy here grows out of two public school construction projects, one in Harford County and the other in Baltimore County, both of which were subject to the Act. As a result of a complaint to the Commissioner that Barnes was not paying the proper wage rate to persons doing steam fitting work, the Commissioner undertook an investigation as provided in § 101(a).

Baltimore Building and Construction Trades Council, AFL-CIO (the Council), according to its petition for intervention in the Circuit Court for Baltimore County, "is composed of all construction trade unions in the Baltimore Metropolitan area and other localities within the State of Maryland." Its membership includes the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Plumbers Local No. 48 and Steamfitters Local No. 438.

Barnes is a non-union contractor. Its employees have no collective bargaining representative. There is no indication in the record here that a union which is a member of the Council in fact represents any of the employees of Barnes.

The Commissioner designated a hearing examiner to conduct the hearing. An attorney for the Council was present. Barnes' attorney objected to this presence, citing Hyson v. Montgomery County, 242 Md. 55, 217 A.2d 578 (1966), in which he said we "specifically held that an interested person within the meaning of the Administrative Act means only an aggrieved person entitled to appeal," which he said the Council was not. The hearing examiner declared the Council to be "an interested person" and allowed its representative to remain, to participate in the hearings, to cross-examine witnesses, and to present argument. At the end of the third day of the hearing it appeared that the Commissioner, acting through an assistant Attorney General, had concluded his case. When the hearing examiner inquired of Barnes' attorney whether he wished a continuance before commencing his client's case, counsel for the Council indicated his desire to subpoena certain records and witnesses from Barnes. The Commissioner issued subpoenas pursuant to this request. At the time designated for their return Barnes advised that it would not comply. The stated grounds for noncompliance, among others, were that the subpoenas were issued solely at the request of the union which was not an "interested person" within the meaning of the statute, that it therefore was not entitled to participate in the proceeding, and that the subpoenas were not issued for any legitimate purpose of the Commissioner. The Commissioner enlisted the aid of the Circuit Court for Baltimore County to compel compliance with the subpoenas. That court directed compliance. The Court of Special Appeals reversed in a comprehensive and well-reasoned opinion by Judge Wilner, concluding We ... see a significant difference between wage rate determination proceedings under §§ 98 and 99 and specific compliance proceedings under § 101(c). The former, as noted, has broad economic implications for many different groups and entities; the latter is for the particular benefit of the employees directly affected those allegedly being paid less than the law requires. The sole purpose of a § 101(c) proceeding is to secure to those employees working on the public project the wages to which they are entitled.

In this regard, there is another distinction to be drawn. When a union actually represents the employees involved, its interest in a compliance proceeding is primarily a derivative one; it is the employees' interest being represented and asserted, not that of the union itself. The union thus assumes, vicariously, the status of the employees themselves; that is what would make it, under that circumstance, an "interested person." This, of course, is not true where the union does not represent the affected employees. In that instance, the interest being asserted by the union is purely a personal one of its own. That interest may or may not be consistent with the interest of the employees on the job, depending upon the overall circumstances of the case; but regardless, the union, in that situation, is a complete stranger to the parties, to the transaction, and to the object of the proceeding.

For these reasons, we find that the Commissioner and the Circuit Court erred in deeming the unions to be "interested persons" in the administrative proceeding. They had no right to participate in the proceeding, no right to initiate the subpoenas, and no right to the records sought by the subpoenas. Accordingly, under the facts before us, we conclude that the subpoenas were improperly issued .... [Id. 45 Md.App. at 413, 413 A.2d 259 (emphasis in original).]

We granted the writ of certiorari.

The Council presents the question as:

The Court of Special Appeals erred by applying an improper and unconstitutional standard of review to the action of an administrative agency so as to substitute its judgment for that of the Commissioner of Labor and Industry that building and construction trade unions are "interested persons" within the meaning of Md.Ann.Code Art. 100, Section 101(c)."

It claims the Commissioner applied longstanding rules of statutory construction in reading the phrase here in pari materia with other sections of the Act. It suggests that the issue is whether there was proper deference to the Commissioner's interpretation.

The Council misunderstands the standard of review. We pay great deference to findings of fact of an administrative agency since it has heard and observed the witnesses. The standard for review of the decision of an administrative agency was stated for the Court by Chief Judge Hammond in Insurance Comm'r v. Nat'l Bureau, 248 Md. 292, 309, 236 A.2d 282 (1967), as "whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." (Emphasis added.) This has been repeated in a host of cases since then. See, e. g., Resetar v. State Bd. of Education, 284 Md. 537, 554, 399 A.2d 225 (1979); Folly Farms I, Inc. v. Trustees, 282 Md. 659, 670, 387 A.2d 248 (1978); Shell Oil Co. v. Supervisor, 278 Md. 659, 670, 366 A.2d 369 (1976); and Pemberton v. Montgomery County, 275 Md. 363, 367-68, 340 A.2d 240 (1975). Here, however, the review is one of law. It is true that as we stated in Holy Cross Hosp. v. Health Services, 283 Md. 677, 685, 393 A.2d 181 (1978), in the matter of statutory construction it is well understood that the view taken of a statute by administrative officials soon after its passage is strong, persuasive influence in determining the judicial construction and should not be disregarded except for the strongest and most urgent reasons. See, e. g., F. & M. Schaefer v. Comptroller, 255 Md. 211, 218, 257 A.2d 416 (1969); Smith v. Higinbothom, 187 Md. 115, 132-33, 48 A.2d 754 (1946); and John McShain, Inc. v. Comptroller, 202 Md. 68, 73, 95 A.2d 473 (1953), and cases cited in each. However, as Judge Delaplaine said for the Court in Rogan v. Baltimore & O. R. R., 188 Md. 44, 58, 52 A.2d 261 (1947), "(W)here the language is plain and unambiguous, the judicial construction cannot be controlled by extraneous considerations. No custom, however venerable, can nullify the plain meaning and purpose of a statute." Schaefer could be cited for the latter proposition because we there held, despite the prior construction by the Comptroller, that his "rule as (t)here sought to be applied (was) an invalid attempt to render taxable that which the General Assembly ha(d) precisely defined as not taxable." 255 Md. at 219, 257 A.2d 416.

This Court has stated the rules for statutory construction many times. The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent. In...