Barbour v. D.C. Dept. of Employment Services, 83-123.

• Decision Date: 08 October 1985
• Docket Number: No. 83-123.,No. 83-127.,83-123.,83-127.
• Citation: 499 A.2d 122
• Parties: Thomas BARBOUR, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPART-MENT OF EMPLOYMENT SERVICES, Respondent. Maloney Concrete Co., et al., Intervenors. MALONEY CONCRETE CO., et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Metropolitan Washington Council, AFL-CIO, Intervenor.
• Court: D.C. Court of Appeals

Page 122

499 A.2d 122

Thomas BARBOUR, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPART-MENT OF EMPLOYMENT SERVICES, Respondent.

Maloney Concrete Co., et al., Intervenors.

MALONEY CONCRETE CO., et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Metropolitan Washington Council, AFL-CIO, Intervenor.

No. 83-123.

No. 83-127.

District of Columbia Court of Appeals.

Argued December 4, 1984.

Decided October 8, 1985.

Oliver Denier Long, Bethesda, Md., and Kenneth Henley, Philadelphia, Pa., were on brief, for petitioner in No. 83-123.

William H. Willcox, Washington, D.C., with whom Gary L. Melampy, Washington, D.C., was on brief, for petitioners in No. 83-127 and intervenors in No. 83-123.

Grace Lockett Rosner, Washington, D.C., for respondent.

Jonathan G. Axelrod, Washington, D.C., with whom William W. Osborne, Jr., Washington, D.C., was on brief, for intervenor, Metropolitan Washington Council, AFLCIO.

Before PRYOR, Chief Judge, and NEW-MAN and BELSON, Associate Judges.

NEWMAN, Associate Judge:

Barbour, et al. (employees) seek review of the decision by the Department of Employment Services (DOES) which denied their applications for unemployment compensation based on a finding that they voluntarily left their jobs without good cause connected with the work under D.C.Code § 46-111(a) (Supp. 1982). The employees claim that since their unemployment was a result of a strike, their eligibility can only be determined by the "labor dispute" section, D.C.Code § 46-111(f) (1981).¹ Maloney Concrete Co., et al. (employers) seek review of that portion of the decision which applied the definition of "labor dispute" promulgated by the District of Columbia Unemployment Compensation Board (Board) in 18 DCRR § 4604.13 (1983) (regulation) to be "any controversy concerning terms, tenure, or conditions of employment under an existing collective bargaining agreement." Maloney argues that this definition is unreasonable because it is inconsistent with the statute and would not apply to the majority of "labor disputes", i.e., strikes that occur after the expiration of the contract. We agree with the employees that § 46-111(f) is the exclusive means of dealing with eligibility determinations where the unemployment is due to labor disputes. We agree with the employers that the definition of "labor dispute" contained in the regulation is inconsistent with the statute and thus outside the authority of the Board to adopt. We affirm the determination of disqualification, albeit on grounds different from those on which DOES relied.

The facts are undisputed. The employees are members of Teamsters Local 639. The employers are two of six concrete companies that bargain jointly with Local 639. The contract between them expired on May 15, 1982. Negotiations for a new contract began before that date but were fruitless. After the contract expired, the union went on strike. The strike ended in July 1982. The employees sought unemployment compensation benefits for the period during which they were on strike.

An examiner determined that the strike was not a labor dispute within the meaning of the regulation since it did not occur during the term of a collective bargaining agreement; therefore, the statutory "labor dispute" exclusion of § 46-111(f) did not apply. The examiner next determined that the employees left their work voluntarily, without good cause connected with the work and thus were disqualified for benefits under § 46-111(a). The employees filed an interagency appeal. Upon being notified by DOES of this appeal, the employers sent a letter in response thereto, stating that the employers agreed with the determination of disqualification but disagreed with the "labor dispute" definition contained in the regulations and applied by DOES. While acknowledging that this letter met all the requirements of an appeal save for formally captioning it as such, DOES held that the employers had not perfected an interagency appeal. Thus, DOES did not review the labor dispute definition; it only reviewed the finding of ineligibility under § 46-111(a) (voluntarily quit without good cause connected with the work) as requested by the employees. DOES affirmed the decision of the examiner.²

Where an administrative agency is delegated broad authority to administer a statutory scheme, we give deference to reasonable constructions of such regulatory statute by the agency. Nova University v. Educational Institution Licensure Commission, 483 A.2d 1172, 1190 (D.C. 1984); Hager v. District of Columbia Department of Consumer and Regulatory Affairs, 475 A.2d 367, 368 (D.C. 1984). We have cited with approval for this proposition Supreme Court cases such as Red Lion Broadcasting Company v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969), and SEC v. Chenery Corp., 332 U.S. 194, 207-08, 67 S.Ct. 1760, 1582-83, 91 L.Ed. 1995 (1947). See Gomillion v. District of Columbia Department of Employment Services, 447 A.2d 449, 451 (D.C. 1982). Thus we now turn to the question: is the construction given to the "labor dispute" disqualification provision by the regulation a reasonable one?

Insofar as relevant here, the "labor dispute" disqualification of § 46-111(f) has remained basically unchanged since 1935. See National Broadcasting Co. v. District Unemployment Compensation Board, 380 A.2d 998, 999-1000 n. 2 (D.C. 1977). We have had previous occasions to consider the meaning of that term as included in § 46-111(f). We first were called on to address this provision in Washington Post Co. v. District Unemployment Compensation Board, 377 A.2d 436 (D.C. 1977). In that case, we attempted no definition of "labor dispute" but rather "[for the purposes of [that] appeal acceptled] the Appeals Examiner's definition. . . ." Id. at 440 n. 9. That Appeals Examiner had defined a labor dispute as:

any controversy concerning wages, hours, working conditions, or terms of employment, arising out of the respective interest of an employer and employee, or a dispute over such matters arising between the parties regardless of whether they stand in the proximate relation of employer and employee.

Id. at 437 n. 1.³ Our second case examining the provision was Washington Post Co. v. District Unemployment Compensation Board, 379 A.2d 694 (D.C. 1977). In that case, the Board awarded compensation to a member of one union who refused to cross a picket line posted by another union which was on strike. Relying on decisions from other jurisdictions, e.g., Pennsylvania, Maryland, New Jersey and Connecticut, we held that a "voluntary failure or refusal by a member of a non-striking union to pass through a picket line at his place of employment . . . constitute[s] active participation in a labor dispute . . . [which] necessitates a claimant's disqualification from the receipt of unemployment compensation." Id. at 697 (footnotes and citations omitted). Our next case evaluating the "labor dispute" disqualification was National Broadcasting Co. v. District Unemployment Compensation Board, supra. There, we reversed a ruling by the Board that employees who were locked out by an employer after the expiration of a collective bargaining agreement and while negotiations about a new agreement were in process were not disqualified from receiving benefits by the "labor dispute" provision. While noting that the statute does not define "labor dispute", id., 380 A.2d at 999 n. 2, we held that the lockout involved in that case was a "labor dispute" within the meaning of the statutory disqualification.⁴ Finally, in Adams v. District Unemployment Compensation Board, 414 A.2d 830 (D.C. 1980), we approved the Board's use of the definition of "labor dispute" found in the National Labor Relations Act. That definition is as follows:

The term "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

29 U.S.C. § 152(9).

In determining the meaning of the term "labor dispute" we must first look to the statute for a definition. Where, as here, none is given, we next look at the language of the statute itself to see if it is plain and can rationally bear only one meaning, Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc), for generally the intent of the legislature can be found in the language used in the statute. Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, 64 (D.C. 1980) (en banc). Words of a statute must be construed by their common meaning and their ordinary sense. Davis v. United States, 397 A.2d 951, 956 (D.C. 1979). See generally Caminetti v. United States, 242 U.S. 470, 485-86, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). We also examine the legislative history. Peoples Drug Stores v. District of Columbia, supra, 470 A.2d at 753-55. In the final analysis:

it must be remembered that statutory interpretation is an "imperfect science," Schiaffo v. Helstoski. 492 F.2d 413, 428 (3d Cir. 1974), and "generalities about statutory construction help us little. They are not rules of law but merely axioms of experience." United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952).

Gonzalez v. United States, 498 A.2d 1172, 1176 (D.C. 1985).

We are satisfied that the common meaning and ordinary sense of the term "labor dispute" would include strikes whether during the term of a collective bargaining agreement or after its expiration. We are reinforced in that view by the fact that the definition of labor disputes contained in the regulation would virtually nullify the statutory exclusion of § 46-111(f), since strikes during the term of a collective bargaining agreement are rare in light of the...