Espasas Dairy, Inc. v. Minimum Wage Board

Mr. Justice Santana Becerra,

with whom Mr. Chief Justice Negrón Fernández, Mr. Justice Hernández Matos, and Mr. Justice Dávila concur, dissenting on reconsideration.

San Juan, Puerto Rico, January 14, 1969

On June 20, 1967, speaking for a majority of five justices of this Court, I rendered an opinion sustaining the validity of Mandatory Decree No. 27 applicable to the Dairy and Cattle Industry, Third Revision (1965).

On July 10 and 14, 1967 petitioner-enterprises filed motions for reconsideration. On July 21, 1967 the Minimum Wage Board opposed the reconsideration requested and moved for a hearing. On January 8, 1968 when the motion for reconsideration had not yet been decided, Mr. Justice Emilio S. Belaval, who took part in the majority opinion, retired. Now, with the intervention of Mr. Justice Torres Rigual, appointed to fill the vacancy, the case is decided on reconsideration, setting aside the original judgment of June 20, 1967 of the majority, and decreeing the nullity of subdivisions 2 and 3 of Mandatory Decree No. 27 concerning the fixing of minimum wage per hour worked by the driver-salesmen and the assistant-salesmen.

I believe the opinion on reconsideration is affected by the same error, which was brought down from the minority opinion in the original decision of the case, confusing and mystifying two entirely different concepts in the sphere of work, which are: (1) the concept of the minimum wage with (2) the concept of the minimum workday and working standards and conditions. In my opinion it is also affected by the error, like in the preceding minority opinion, of attributing to Act No. 114 of June 30, 1965 a purpose it did not have and the scope it does' not have.

*804The legal authority of the Minimum Wage Board created by Act No. 96 of June 26, 1956, to fix a minimum wage alternatively, as it did in the Mandatory Decree challenged, for the driver-salesmen, is clearly sanctioned by § 16 of said Act, as amended by Act No. 105 of June 26, 1964. Said section expressly provides that under certain circumstances mentioned therein, “as well as in any other economic activity, the committees may recommend and the Board may fix minimum wages by units of work instead of wage rates per hour, or alternatively, whenever they may deem it advisable due to the nature of the work to be done.” With this stipulation the lawmaker permitted the Committees and the Board to depart from the basic unit of minimum wage of the Act, which is the hour, and authorized them to use another unit, or alternatively.

It was thus deemed advisable by the Committee which adopted Mandatory Decree No. 27 and the Board which approved it, considering that the worker was more favorably protected by fixing the minimum wage rate in the alternative of the unit or the hour, in the light of certain typical peculiarities in the distribution of milk.

It is proper to bear clearly in mind, since Act No. 114 of 1965 is invoked to annul the Decree, that the Minimum Wage Board created by Act No. 96 of 1956 has nothing to do with labor conditions and standards. It exercises authority only and solely in the minimum wage rate. Any provision in connection with labor standards appearing in the mandatory decrees approved by the present Minimum Wage Board are additional statements, in force under the former legislation of 1941, which by express provision of § 40(b) of the Act of 1956 should remain in force except what concerns minimum wage rates.1

*805Mandatory Decree No. 27, which is challenged, was adopted by the Committee who investigated the Dairy and Cattle Industry on March 5, 1965. On April 2 and 5, 1965 petitioners challenged before the Board the approval of the draft of the Decree. Their original position was to the effect that the drivers who distributed the milk should not be considered as covered by Act No. 379 of 1948, under the provision of said law which excludes the salesmen from maximum wage rates and other standards. These objections — which did not refer to the minimum wage — did not prosper and on April 24, 1965 the Minimum Wage Board published the approval of Decree No. 27.

On May 3 and 4, 1965 petitioners requested the reconsideration of the approval of the Decree, as provided by law. — Section 29(d), Act No. 96 of 1956. At this stage, the reconsideration being pending, petitioners notified the Board of the presentation, on March 10, 1965, of House Bill No. 135 which excluded the driver-salesmen and milkmen helpers in the Dairy Industry from the application of the laws and decrees concerning the maximum working hours. Bill No. 135 became Act No. 114 of June 30, 1965. Petitioners then requested the Board to remand the Decree to the Committee for action in the light of said legislation. The Board refused to do so and Mandatory Decree No. 27 was definitively approved. Petitioners challenged the Decree in the present appeals.

In the original opinion of the Court Act No. 114 is discussed. In view of the motives and scope which are attributed to said statute in the opinion on reconsideration, I deem it necessary to comment on the history of said Act.

(1) House Bill No. 135 was presented by Representative Milán Padró on March 10, 1965 and it was originally entitled : “To decree the nonapplicability of the laws and decrees on maximum working hours to milkmen and their helpers, in their peddling of fresh milk and other dairy products; *806and to authorize the Milk Industry Committees to recommend and the' Minimum Wage Board to approve minimum commissions for such employees.” (Italics ours.) 19-2 Journal of Proceedings 398.

(2) As originally presented, the Bill consisted of a Statement of Motives and two sections. Section 1 provided that the laws and decrees establishing the maximum working periods for employees or regulating the maximum working hours of employees shall not be applicable to milkmen and their helpers, in their peddling of fresh milk and other dairy products. Section 2 provided that the minimum wage committees may recommend and the Minimum Wage Board may approve minimum commissions to be paid to peddlers of fresh milk and other dairy products, and to their helpers.

(3) As to the rationale of the Bill the Statement of Motives stated that some doubt had arisen as to whether or not the salesmen and peddlers of fresh milk and other dairy products were covered by the exemption granted to traveling salesmen traditionally established by the laws in regard to extra hours. (This refers to the payment of extra hours and the working day of Act No. 379 of 1948.) That it was desirable in order not to detain the continuous development and expansion of the dairy industry to clarify, definitively, any doubt there could be as to the applicability of the laws and decrees concerning extra hours to these peddlers and their helpers. It also stated that the commission plan to pay the peddlers and their helpers had proved to be fair and reasonable and that said workers could be protected by the Minimum Wage Board by the fixing of minimum commissions based on the recommendations of the Committees appointed. 19, Part 4 Journal of Proceedings 1666.

(4) As a ground for the doubt, the Statement of Motives also indicated that the enterprises did not have direct control or. the necessary supervision of the peddlers’ work for the purpose of computing extra hours.

*807(5) The Bill having been submitted by the Labor Committee, the original Statement of Motives was drafted as it appears in Act No. 114, preserving the motives of the Bill already stated.

(6) The Bill was amended to include the matter contained in § 3 of the Act approved. There was nothing in the discussion of the Bill in the House to alter the original purpose of its presentation, which, as has been said, was to clarify, to dispel doubts, in the sense that the provisions of the law in force in relation to the maximum working hours and extra hours would not apply to said driver-peddlers.

(7) On the other hand, for the purpose of not leaving them unprotected as to leave of absence, day of rest, sick leave and other working conditions guaranteed to other employees of those industries not related to the maximum working hours and extra hours, § 3, not originally in the Bill, was included. 19, Part 4 Journal of Proceedings 1666, 1678-1686.2

There is nothing in Act No. 114 against the actions of the Committee and the Board. The law dispelled the doubts and fears of the dairy enterprises and proceeded to exclude the driver-salesmen of the guarantees offered by other legislation as to the maximum working hours and extra hours, like the traveling salesmen had been excluded from said provisions by Act No. 379 of 1948. The reason in both cases: the same — the enterprises’ difficulty in exercising the necessary control and supervision of the work, as to maximum working hours and extra hours, because of the nature of the work.

Act No. 114 did not deprive the Committee or the Board *808of the authority expressly granted to both to fix a minimum wage rate alternatively. The Committee and the Board were aware, on the basis of the evidence before them, that situations could arise in which a wage fixed only on the basis of a commission could be destructive of the worker’s right to a minimum wage; this was one of said situations in which, according to the legislative expression in Act No. 96 it was deemed advisable and desirable to fix the wage alternatively. Factors not under the control of the employee, like the breaking down of the vehicles, unforeseen events, could deprive the worker of pay, even when he had been working, solely on the unit basis. The Decree only fixes a minimum wage rate irrespective of any contingency for which the worker is not responsible.

With this determination of the Committee and the Board we do not find it lawful for us to intervene without violating the provision of law governing the judicial review of the Mandatory Decrees. On the other hand, the Decree challenged does not ignore Act No. 114, since it fixes minimum wages for said workers on the basis of unit or commission.

Section 1 of Act No. 96 provides that it is the policy of the Legislature of Puerto Rico that the proceedings authorized by this act for the fixing and revision of minimum wages be conducted in a quasi-legislative manner. Although not stated therein, a Mandatory Decree is a legislative provision, a regulation of positive law which arises from the weighing of a situation of fact which has been under the consideration of the Committee.

To render effective said public policy, the Legislature itself carefully outlined the ambit of the judicial review of a Decree and determined: (Section 29)

1. The findings of fact at which a Minimum Wage Committee, acting within its powers, may arrive, shall, in the absence of fraud, be conclusive.

*809The conclusion of the Committee as to the existence of a situation of fact which made it advisable, under § 16 of Act No. 96, amended by Act No. 105 of 1964, to fix a wage rate alternatively, should be conclusive for the court.

2. The court may affirm, annul or remand a Decree, but the annulment or remand of a Decree shall be only:

(a) because the Committee acted without authority or ultravires, provided said question has been expressly raised before the Committee and later before the Board, or before the latter;

(b) because the Board acted without authority or ultra-vires, if the question was expressly raised before the Board;

(c) because the decree was procured through fraud.

None of the facts previously stated, which authorize this Court to annul a Decree, occurred in the case at bar. After the approval of Mandatory Decree No. 27, which is challenged, Act No. 114 was approved. The Board understood that it should not remand the Decree to the Committee considering that the Decree and Act No. 114 subsequently approved were not incompatible. The Board was right, because they are not incompatible, and Act No. 114 did not refer to minimum wages, but minimum working days and working conditions. At no time whatsoever did Act No. 114 deprive the Committee and the Board of the power to fix a wage rate alternatively, expressly granted by Act No. 96.

But even if the determination of the Board in refusing to remand the Decree were debatable and would admit opposition, in the absence of plain illegality it should carry great weight with the Court under well-established rules of judicial review of the administrative and quasi-legislative acts; and in deference to the administrative body designated by law as the one specially empowered to make such determinations of minimum wages and in compliance with the legislative public policy which expressly fixed the limitations of this Court in the judicial review of a Decree.

Contrary to the foregoing, the new majority opinion sub*810stitutes the view and the administrative interpretation of Act No. 114 made by the Board for the view and interpretation suggested by the enterprises, which the Court adopts, without apparent reasons of weight compelling such action except a difference of opinion as to the scope of the statute. The Decree being a piece of legislation, and if Act No. 114 were subject to two different interpretations, one annulling the Decree and the other reconciling it, I deem it our duty to choose the second, as the Board did.

In organizing the Minimum Wage Committee an excellent, intelligent, and democratic body was created. Three of its members represent the employers’ interest, three the workers’ interest, and three represent the public interest who .serve as stabilizing agent between the two other parties. The product of the Committee, which is the Decree, is fundamentally well-balanced, fair, reasonable, and equitable for all the interests involved. Hence, the Legislature provided that the findings of fact of the Committee, in the absence of fraud, be untouchable, even by the Board. The court would not be better qualified than the Committee for weighing the findings of fact of the latter, but even if it were, the legislative order was not to alter them.3

Finally in view of the problem involved herein, the fact of the economic situation of the dairy enterprise to which marked emphasis is given in the opinion on reconsideration is unsubstantial.

The purpose of Act No. 114, which appears from its face, was not to meet or remedy the commercial situation of the dairy enterprises. To meet that problem, the Legislature has been approving a set of laws and appropriate *811measures. See: a recital of these laws and aid measures in my majority opinion in Industria Lechera v. Sec. of the Treasury, 95 P.R.R. 819 (1968). The fact that Mandatory Decree No. 27, Third Revision of 1965, has been in full force and effect has not brought the downfall of the dairy enterprises, judging from the fact that Mandatory Decree No.- 27, Fourth Revision of 1968 was adopted by the Committee in the sáme alternative manner as the fixing of minimum wages for said employees. As a question of reality, the Industry as a whole did not always function on the unit basis.

For the reasons stated above I dissent as to the annulment of Mandatory Decree No-. 27, Third Revision, 1965, now on reconsideration:

Hereafter see Act No. 116 of June 21, 1968: leave of absence and sick leave.

There was ample discussion in the House motivated by certain amendment by the Labor Committee which established a difference between the union workers and the non-union workers of the Dairy Industry. The amendment was defeated. Journal of Proceedings-, id. • ■

In his separate opinion in the case of People v. Santos Cornier, decided April 2, 1969, Mr. Justice Rigau stated that “this Court should exercise its power to reverse on the facts with a- great sense of self-discipline.” In the circumstances under which by law this Court is permitted to review a Decree, said call to self-discipline attains its most profound meaning.