Baltimore Building & Construction Trades Council v. Barnes

Smith, J., delivered the opinion of the Court. Eldridge, J., dissents and filed a dissenting opinion at page 29 infra. 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 judg ¹¹ ment 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. .. . [Ulpon 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 ¹² 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: ¹³ 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 (emphasis in original).] ¹⁴ 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’lBureau, 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 ¹⁵ urgent reasons.

See, e.g., F. & M. Schaefer v. Comptroller, 255 Md. 211, 218 , 257 A.2d 416 (1969); Smith v. Higinhothom, 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 ftjhere 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 . 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 determining that intent the Court considers the language of an enactment in its natural and ordinary signification. A corollary to this rule is that if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly. A court may not insert or omit words to make a statute express an intention not evidenced in its original form.

Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory. See Police Comm’r v. Dowling, 281 Md. 412, 418-19 , 379 A.2d 1007 (1977), citing a number of our cases for these propositions and, more recently, Dorsey v. Beads, 288 Md. 161, 175-76 , 416 A.2d 739 (1980), and Messitte v. Colonial Mortgage Serv., 287 Md. 289, 293-94 , 411 A.2d 1051 (1980). The Council’s pari materia argument is derived from a reference to § 98 (a) dealing with the initial determination of prevailing wage rates by the Commissioner and § 99 (a) providing for an evidentiary reconsideration of a prevailing ¹⁶ wage determination made by the Commissioner pursuant to § 98. In § 98 (a) the Commissioner is required to "give notice by mail of all determinations of prevailing wage rates made pursuant to th[at] section to any representative of any classification, any employer, or any representative of any group of employers who in writing requests the Commissioner so to do.” Section 99 (a) provides that among others "any representative of any classification of workmen... may file with the Commissioner a verified petition, which sets forth the facts upon which it is based, to review the determination of any prevailing wage rate or rates.” Then the Commissioner is obliged to give notice to, among others, "the recognized collective bargaining representatives for the particular classifications involved, and also to all persons entitled to receive notice pursuant to subsection (a) of § 98 ....” The section then goes on to provide, "The Commissioner or any interested parties thereafter may introduce any evidence that is material to the issues.” It will be seen at once that in §§ 98 (a) and 99 (a) the General Assembly referred to "any representative of any classification” and to "the recognized collective bargaining representatives for the particular classifications involved,” while the reference here is to "interested persons” and "interested person.” The Council’s pari materia argument proves too much.

The reference to interested persons appears in the following context in subsection (c) of the "investigations” section (§ 101 (c)): Within thirty (30) days after an investigation has been completed, the Commissioner shall order a hearing . .. and shall give notice thereof.. . which notice shall be served ... on all interested persons, including the interested public body. Every interested person shall have an opportunity to be heard .... [Emphasis added.] For the words "[e]very interested person” to include "any representative of any classification,” as the latter phrase is used in preceding sections, then "[e]very interested person” would necessarily embrace the requesting public body and ¹⁷ "any employer, or any representative of any group of employers” who in writing request the Commissioner to give them notice of a determination, under the determination section (§ 98 (a)). This construction also would embrace, as enumerated in the review section (§ 99 (a)), "the petitioner, the public body authorizing the public work, and the recognized collective bargaining representatives for the particular classifications involved, and also ... all persons entitled to receive notice pursuant to” the determination section. Under an analysis whereby each "interested person” includes the categories described in the preceding sections, the express inclusion of the "interested public body” in the investigations section is merely surplusage.

The more reasonable interpretation is that, in the context of the investigations section, the interested persons basically are the immediate payor and payees of the wages. Under this reading the phrase "including the interested public body” becomes a term of expansion. The public body which will pay for the work, whether under a lump sum, cost plus, units of materials or other type of contract, is also a proper party to the investigation hearing. For this reason the Commissioner has exceeded the limitations of the statute in his administrative interpretation.

In support of its position the Council points to the fact that under § 101 (d) "[t]he Commissioner is . . . authorized and empowered to make any and all rules and regulations from time to time, that may be necessary to effectuate the purposes of th|at] subtitle” and the fact that §§ A, B, C, D, F, G, H, I, J, K, and L of COMAR .09.12.51.03, .09.12.51.04, and .09.12.51.05 are identical. COMAR .09.12.51.05 reads in pertinent part: .05 Rules of Procedure for Hearing on Non-compliance with Provisions of Prevailing Wage Law. D. Counsel for any interested party may be heard on any preliminary objections, exceptions, or ¹⁸ motions, and any stipulations entered into by interested parties at the hearing shall then be received. H. Any party of interest may introduce any testimony or other evidence in rebuttal or of any affirmative nature.

Any witness so introduced shall be subject to cross-examination. I. Any party of interest may directly or through his attorney make any statement or argument relevant to the hearing. The regulations must be read in the context of that to which they apply, in this instance to procedures for a hearing concerning alleged noncompliance with provisions of the prevailing wage law. An "interested party” or "party of interest” in the initial determination of prevailing wage rates or the reconsideration of a prevailing wage determination which would apply to all employers of specific work classifications on public works projects in a given area, to all unions in that area whose members held that classification and who were so employed on public works, and to all employees of such classifications on such projects in that area is not necessarily an "interested person” in a determination as to whether a specific employer has failed to comply with the law.

The Commissioner may no more expand by rule the definition or meaning of "interested person” as it appears in the statute than the Comptroller by rule may "render taxable that which the General Assembly has precisely defined as not taxable.” Schaefer, 255 Md. at 219 . Hence, we turn elsewhere in our analysis of the problem. The Federal counterpart of our prevailing wage law is the Davis-Bacon Act, 40 U.S.C. §§ 276a — 276a-5 (1976). It has no provision similar to Art. 100, § 101 (c) relative to an administrative determination upon complaint that an employer is not paying the prescribed wage.

Enforcement is under § 276a-l providing that if it is found by the contracting officer that the prescribed wages are not being paid the contract may be terminated for "work as to which there has been a failure to pay said required wages” with the ¹⁹ contractor’s being liable to the Government for any excess costs occasioned thereby. See also § 276a-2 pertaining to payment of wages by the Comptroller General from withheld payments and a listing of contractors violating their obligations. Provisions for enforcement are set out in Labor, 29 C.F.R. §§ 7.1-7.8 (1980), pertaining to the Wage Appeals Board. Section 7.2 (a) pertains to the right of an interested person to seek a modification or other change in a wage determination.

Accordingly, § 7.2 (b) is of interest here since it states: (b) For purpose of this section, the term "interested person” is considered to include, without limitation: (1) Any .. . labor organization which represents a laborer or mechanic, who is likely to be employed or to seek employment under a contract containing a particular wage determination .... It will be recalled that there is no indication in the record here that any of the employees of Barnes were members of a union which is a member of the Council at the time of the complaint and that the employees of Barnes have not chosen one of such unions as their collective bargaining representative. Given this broad definition that a union representing a laborer "likely to be employed or to seek employment under a contract” would be an interested person and the further fact that cases upon which the Council relies such as North Georgia Bldg. & Const. Trades v. Goldschmidt, 621 F.2d 697 (5th Cir. 1980); Anchorage Bldg.

Tr. Coun. v. Department of H. & U. D., 384 F. Supp. 1236 (D. Alaska 1974); and International U. of Operating Eng., Local 627 v. Arthurs, 355 F. Supp. 7 (W.D. Okla. 1973), arise in contexts different from the case at bar, the Federal cases are not persuasive. (Emphasis added.) In situations analogous to that in the case at bar two State courts have held unions not to be interested persons or parties, Yerry v. Goodsell, 4 A.D.2d 395 , 166 N.Y.S.2d 224 (1957), and Chauffeurs, Teamsters & Helpers v. WERC, 51 Wisc. 2d 391, 187 N.W.2d 364 (1971). In Yerry a school board ²⁰ had undertaken the reconstruction and repair of a public school building, using its regular maintenance employees, who were paid their regular salaries.

A union charged the board with violations of a statute relative to prevailing wages. The court said on administrative appeal from a dismissal of the complaint that the statute made clear "that only an employee or a person acting on his behalf is a 'person interested’ entitled to file a complaint . . . upon the basis of which the fiscal officer is required to hold a hearing.” Id. at 230. It held that a "person interested” authorized to file a verified complaint "must be a person who may become entitled to recover as a complainant.. ..” Id. at 230-31. The court there said further: Notice of hearing is required to be given under subdivision 8 to "any person or corporation affected thereby.” This term has been strictly construed to mean only the employee filing the complaint and the person or corporation employing him (Heaney v. McGoldrick, 286 N.Y. 38 , 35 N.E.2d 641 ; Campbell v. City of New York, 291 N.Y. 461 , 52 N.E.2d 949 , supra).

In the Heaney case, it was held that even a fellow employee, who had failed to file a complaint of his own, was not a person "affected thereby” and hence it was held that he was not entitled to notice of the hearing ( 286 N.Y. at page 44 , 35 N.E.2d at page 644 ). A fortiori, it must be held that a stranger to the employment relationship is not a person "affected” within the meaning of the statute. The statute provides for review of the determination of the fiscal officer by any "aggrieved” party but a stranger could not be "aggrieved” by the determination, since it could not possibly affect any right of action or any liability on his part. Hence, if a stranger were allowed to file a verified complaint as an interested person under subdivision 7, we would have the anomalous situation that he would not be entitled to a notice of hearing because he would not be a persom "affected” and he would not ²¹ be entitled to review any determination because he would not be "aggrieved” and, obviously, he could not seek a recovery as a "complainant” under subdivision 8 since he could not have any possible basis for a claim for loss of wages. ¡Id. at 231.] In the Wisconsin case a union filed an unfair labor practice charge against an employer alleging that he was not paying the prevailing wage as required by a Wisconsin statute.

The court there said: Obviously Local 200 has an interest in Gerovac’s employment practices in this case. But is it of such a nature that it must bring an unfair labor practice charge before the WERC in order to protect it? And is it unreasonable for the WERC to hold that Local 200 may not do so? The WERC holds that it interprets sec. 111.07 (2) (a), Stats., a jurisdictional statute, as limiting "parties in interest” to those engaged in "controversy as to employment relations,” defining such controversies as those involving an employer and his employees or their representational labor organization.

Further, the WERC, under some circumstances, extends "party in interest” status to a labor union that is seeking representation. However, it will not extend such status to Local 200, who neither represents nor purports to represent Gerovac’s employees. Despite Local 200’s admitted