Barnes v. Commissioner of Labor and Industry, Division of Labor and Industry, Maryland Dept. of Licensing and Regulation

• Decision Date: 15 April 1980
• Docket Number: No. 996,996
• Citation: 45 Md.App. 396,413 A.2d 259
• Parties: , 24 Wage & Hour Cas. (BNA) 1325 J. Gordon BARNES et al. v. COMMISSIONER OF LABOR AND INDUSTRY, DIVISION OF LABOR AND INDUSTRY, MARYLAND DEPARTMENT OF LICENSING AND REGULATION, et al.
• Court: Court of Special Appeals of Maryland

Page 396

45 Md.App. 396

413 A.2d 259, 24 Wage & Hour Cas. (BNA) 1325

J. Gordon BARNES et al. v. COMMISSIONER OF LABOR AND INDUSTRY, DIVISION OF LABOR AND INDUSTRY, MARYLAND DEPARTMENT OF LICENSING AND REGULATION, et al.

No. 996.

Court of Special Appeals of Maryland.

April 15, 1980.

H. Emslie Parks, Towson, and Leland S. Van Koten, Baltimore, with whom were Wright & Parks, Towson, on the brief, for appellants.

Henry R. Wolfe, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Francis X. Pugh, Asst. Atty. Gen., on the brief, for appellee, Commissioner of Labor and Industry, Division of Labor and Industry, Maryland Dept. of Licensing and Regulation.

Howard J. Schulman, Baltimore, with whom was Peter G. Angelos, Baltimore, on the brief, for other appellees.

Argued before THOMPSON, WILNER and MacDANIEL, JJ.

WILNER, Judge.

Appellant M. Nelson Barnes & Sons, Inc. (Barnes, Inc.) was a subcontractor on two public school construction projects Fallston Senior High School in Harford County and Owings Mills High School in Baltimore County. Both projects were deemed subject to the State Prevailing Wage Law (Md. Ann. Code art. 100, § 96, et seq., hereafter referred to as "PWL"), ¹ and, accordingly, prevailing wage rates for each job classification had been determined by the Commissioner of Labor and Industry. At some point, one or more of its employees complained to the Commissioner that Barnes, Inc. was violating PWL by failing to pay the prevailing rate for steamfitters to employees doing steamfitting work. Specifically, it was alleged that appellant had misclassified persons doing steamfitting work as plumbers or mechanics and had paid them the prevailing rate for plumbers, which was lower than that for steamfitters.

After investigation, the Commissioner designated an examiner to conduct a hearing into the matter. ² Present at the hearing were counsel for Local 438 of the Steamfitters union, Local 48 of the Plumbers union, and the Baltimore Building & Construction Trades Council (the Trades Council), an umbrella organization composed of the various construction trade unions (hereafter collectively referred to as "the unions"). Barnes, Inc., a non-union contractor, objected to their presence because none of the unions represented any of its employees; but the hearing examiner nevertheless declared them to be "interested persons," and thus allowed them not only to remain but to participate in the hearing through the cross-examination of witnesses and the presentation of argument.

The evidence was presented chiefly by an Assistant Attorney General assigned to the Commissioner. See COMAR 09.12.51.05F. At the end of the third day of hearing, it appeared that he had concluded his case; and the hearing examiner turned to counsel for Barnes, Inc., asking if he wished a continuance before commencing his client's case. At that point, counsel for the Trades Council indicated his desire to subpoena certain records and witnesses from Barnes, Inc. After some discussion as to the Trades Council's authority to initiate such a subpoena, the Assistant Attorney General decided that "as a party of interest, they (the Trades Council) have a right to subpoena themselves, so if they make a request for subpoenas, they will be issued by the Commissioner, and as such, they will be honored. So it's not a question of whether the State is doing it." The examiner then concluded that such evidence as the Trades Council desired to present would be deemed "part of the Commissioner's case," and that, as a result, "the State hasn't completed its case." The hearing was then recessed.

On November 24, 1978, the Commissioner issued identical subpoenas to appellants, Barnes, Inc. and its president J. Gordon Barnes, directing them to appear at the continued hearing on December 6, 1978, and to bring with them virtually all writings and documents pertaining to the two construction projects. Each subpoena stated that its recipient was being called "to testify as a witness . . . at the request of the (Trades Council)."

Appellants made no move to quash these subpoenas. At the appointed time, their counsel appeared, requested (and received) permission to call a witness "out of turn," and proceeded to examine that witness. Counsel then announced that neither of the appellants intended to comply with the subpoenas, upon the advice of counsel, because (1) they were improperly issued, and (2) they were overbroad. The gravamen of the first objection was that the subpoenas were issued solely at the behest of the unions, who were not "interested persons" and were therefore not entitled to participate in the proceeding, rather than for any legitimate purpose of the Commissioner. The second complaint was that the subpoenas sought records that were irrelevant, non-existent, or already in the Commissioner's possession.

Faced with this circumstance, the Commissioner petitioned the Circuit Court for an order compelling compliance with the subpoenas. Over appellant's objection, the unions were permitted to intervene in the Circuit Court action. After a non-evidentiary hearing, the court directed appellants to comply with the subpoenas, and this appeal followed.

We turn now to the issues, as we see them.

I. Jurisdiction

There is an underlying question in this appeal, of jurisdictional dimension, that none of the parties has raised: Is an order enforcing an administrative subpoena, in an action brought solely for that purpose, a final judgment from which an appeal will lie under Md.Ann. Code, Courts article, § 12-301? The Maryland appellate courts have, in fact, entertained such appeals (see, for example, Equitable Tr. v. State of Md. Comm'n, 42 Md.App. 53, 399 A.2d 908, rev'd --- Md. ---, 411 A.2d 86 (1980); but it does not appear that they have ever considered and discussed their jurisdiction to do so. It is, perhaps, time that the question be addressed and resolved.

Based largely upon clear pronouncements from the United States Supreme Court and a number of the Federal Courts of Appeals, ³ we conclude that the order before us is in the nature of a final, and thus appealable, order. The reason for this, as expressed by Mr. Justice Holmes in Ellis v. Int. Com. Comm., 237 U.S. 434, 442, 35 S.Ct. 645, 646, 59 L.Ed. 1036 (1915), is that "(i)t is the end of a proceeding begun against the witness." In that proceeding, there is nothing further for the court to do, nothing further to be litigated.

II. Intervention in the Circuit Court Proceeding

Intervention in judicial proceedings is governed by Maryland Rule 208. Section a thereof permits intervention as of right "when the representation of the appellant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action." Section b allows intervention, discretionarily, when the applicant's claim or defense "has a question of law or fact in common with the action."

Here, of course, the sole issue was whether appellants should be compelled to comply with the Commissioner's subpoenas. As noted, the subpoenas were issued at the request and on behalf of the unions, and the unions would be the principal beneficiaries of their fruits. In this circumstance, at the very least, their claim was in common with the Commissioner's action; and we therefore cannot conclude that the court abused its discretion in permitting intervention under section b. We need not, therefore, consider whether they had a right to intervene under section a.

III. Status of the Unions at the Administrative Proceeding

Appellants do not challenge the Commissioner's authority to issue subpoenas of this type; that is specifically provided by § 101(c) of art. 100. The thrust of their complaint, aside from the breadth of the subpoenas, is that, in issuing them, the Commissioner was not acting on his own behalf but rather as a mere conduit for the unions, who had no legal standing in the proceeding. The records sought, they contend, were not needed or wanted as evidence by or for the Commissioner, but as evidence for other persons (the unions) who had no right to present evidence.

The Commissioner conceded at oral argument that he had indeed concluded his case prior to the unions' request, that he had no need or desire for the records sought by the unions, and that the subpoenas were issued solely at the request and for the benefit of the unions. Both he and the unions further conceded that, in that circumstance, the validity of the subpoenas vel non depends upon whether the unions were lawfully entitled to participate in the proceeding whether, in other words, they were "interested persons." The real point of dispute between the parties, in this regard, is whether the unions qualify as "interested persons"; this is the core issue and therefore must be addressed and resolved by us. ⁴

A. Definition "Interested Person"

Article 100, § 101(c) permits "interested persons" to participate in compliance proceedings under the PWL, but does not define the term. Logically, then, in order to determine whether the unions were properly allowed to initiate these subpoenas, we must first define what the law means by "interested persons" and then see if, as to that type of proceeding, the unions qualify for that status.

In Hyson v. Montgomery County, 242 Md. 55, 69, 217 A.2d 578, 587 (1966), a zoning case, the Court defined "interested persons" as "the same class of persons who can qualify as 'aggrieved persons' under our decisions relative to qualifications to be entitled to appeal," which would seem to require an "interest or right of property" in the pending matter. See Pattison v. Corby, 226 Md. 97, 101, 172 A.2d 490 (1961), also a zoning case.

The requirement of a "property" interest may be suitable to zoning proceedings, which peculiarly affect property; but it seems to be unduly restrictive, and we think unintended by the Court of Appeals, in the context of other types of...