Hotel Ass'n of Washington v. District of Columbia Minimum Wage & Industrial Safety Board

REILLY, Chief Judge

(dissenting) :

In upholding a wage order increasing the minimum rate of wages for hotel, restaurant, and apartment employees, from $1.60 to $2.25, the majority opinion — in my view — has written out of the D.C. Minimum Wage Act (D.C.Code 1973, §§ 36-401 to 36-419) an explicit provision depriving the Board of any authority whatsoever to raise the statutory wage floor in this industry. As I deem such provision disposi-tive of the case, I would set aside the challenged order on the ground that its issuance was beyond the scope of Board jurisdiction, thus making it unnecessary to pass upon petitioners’ other contentions.

As the majority of my colleagues disagreed with me on this basic statutory issue, they found it necessary to examine such contentions. These were directed at several procedural irregularities not compatible with the Administrative Procedure Act and a serious conflict of interest on the part of one of the three Board members participating in the proceedings and the final order. In rejecting all these objections, the majority has placed so narrow a construction upon the Administrative Procedure Act that virtual immunity from its procedural safeguards and from judicial oversight of fundamental fairness has been granted the Minimum Wage Board. I regard such construction of the Act at odds with prior decisions of this court. Accordingly, I am constrained to dissent on the following grounds:

I

The Statutory Exclusion of the Industry from Wage Orders.

*313(a) The Wording of the Act. Prior to the effective date of the District of Columbia Minimum Wage Act of October 15, 1966 (D.C.Code 1973, §§ 36-401 to 36-419 inch), the statute providing for minimum wage regulation in this jurisdiction— a 1918 enactment invalidated in 1923 by the Supreme Court in Children’s Hospital v. Adkins, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 and resuscitated years later by West Coast Hotel v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) — covered only women and children. Under this earlier statute, the agency was authorized to set different minima for particular occupations. Pursuant to this authority, wage orders were issued from time to time, each bearing a different number for the occupational group to which it applied, e. g., laundresses, hairdressers, office clericals, hospital workers, etc. In 1964 there was issued Minimum Wage Order No. 10, requiring the payment of not less than $1.10 an hour in “Hotel, Restaurant, and Allied Occupations.” This is the same occupational group involved here.

This old statute was scrapped by the enactment of the 1966 act, which inter alia covered male as well as female employees, set certain maximum work week standards, and specific statutory wage floors beginning in particular years. In these respects, the new act followed the general scheme of the cognate federal statute, the Fair Labor Standards Act, in which the wage and hour standards are set by Congress rather than by an administrative agency. Unlike the Federal Act, however, the new local law permitted administrative determinations of minimum wages higher than the statutory minima by the technique of issuing wage orders. One industry group, however, was exempt from the general requirement of complying with wage orders setting a level of wages above the designated statutory minima, viz., the very group covered by the order drawn into issue by this case. The key section of the Act1 — § 3(a), which states the basic obligations of covered employers with respect to wage payments— makes this clear:

Sec. 3. (a)(1) Except as otherwise provided in paragraph (2), every employer shall pay to each of his employees (A)the wage established for each such employee in a wage order issued under this Act, or (B) wages at the following rates:
(i) not less than $1.25 an hour during the year beginning February 1, 1967,
(ii) not less than $1.40 an hour during the year beginning February 1, 1968, and
(iii) not less than $1.60 an hour thereafter, whichever is higher.
(2) Every employer shall pay to each of his employees whose wage rates are governed by Minimum Wage Order Numbered 10 (effective August 15, 1964), as revised under subsection (c)(2) of this section, wages at the following rates:
(A) not less than $1.25 an hour during the year beginning August 1, 1967,
(B) not less than $1.40 an hour during the year beginning August 1, 1968, and
(C) not less than $1.60 an hour thereafter. (Italics supplied.)

In other words, the employers (petitioners for review here) to whom § 3 (a) (2) applies were exempted by this paragraph from the contingent obligation imposed upon employers covered by the preceding paragraph of paying wages higher than the specified minima by reason of some future wage order. I am therefore at a loss to understand how my colleagues reached the conclusion that all Congress intended was “to delay for a period of six months the application of the new minimum wage rates to employees affected by MWO-10.” *314If this was the sole Congressional objective, why was clause A of paragraph (a)(1) referring to wage orders, and the significant phrase “whichever is higher,” in subparagraph (a) (1) (iii) completely omitted from the requirement set forth for hotel and restaurant employees in paragraph (a) (2) ? By making the effective dates for the accelerating statutory minima applicable to MWO-IO employers effective on August rather than February dates, Congress did indeed grant their employers a six-month delay in each of the three years such rates were to become effective. But since any reference to compliance with wage orders does not appear in the paragraph prescribing different wage conditions for the hotel and restaurant industry, it is apparent that the six-month reprieve was only one of the Congressional objectives with respect to this industry.2

Nor do the provisions of § 36-406 relied upon by the majority support its theory. The authority to revise upward a “wage rate within a wage order” after it has been in effect for a year clearly applies only to occupations to which such wage orders are applicable' — not occupations in hotels and restaurants, where the only obligation of employers by reason of § 36-403 (a) (2) is to conform to the wage rates set by statute in contradistinction to wage orders.

(b) Legislative History. As the text of § 36-403(a)(l) and (2) is clear and unambiguous and as nothing inconsistent with it appears elsewhere in the statute (including the § 406 provisions respecting agency revision of administrative wage determinations), resort to legislative history to ascertain meaning is irrelevant under well established canons of statutory construction. But inasmuch as the majority have attempted to buttress their view with excerpts from the committee reports and the Senate debate, a brief comment on these matters seems appropriate.

To put the matter into perspective, it should be noted that in 1965 during the first session of the 89th Congress, the District of Columbia Committee of the House after holding hearings on two entirely different bills, H.R. 648 and H.R. 6494 for amending the local minimum wage law, reported out a set of amendments to the 1918 Act in a “clean print”, H.R. 8126. One of these numerous amendments provided that employees in occupations already covered by minimum wage orders should be paid not less than $1.15 an hour on the effective date of the Act, and not less than $1.25, beginning September 3, 1966. With regard to occupations not as yet covered by order, the bill set minimum rates of $1.00, $1.15 and $1.25 (beginning September 3, 1967). A separate provision made the corresponding minima for employees covered by MWO-10, $1.15 on August 15, 1967, and $1.25 on August 15, 1968.3

Whether or not this provision was intended to foreclose the possibility of wages *315in the hotel and restaurant industry being raised by agency action above these new statutory rates is not altogether clear, for the bill as passed by the House did not completely repeal procedures for wage conferences and Board orders embodied in §§ 11 and 12 of the existing Act. Neither the House bill nor the reference in the committee report to this subsection (H.R.Rep. No. 522) deals with this question.

What the majority really relies upon in its account of the legislative history are the changes made in H.R. 8126 when it reached the Senate. There, the committee struck out the entire House bill (S.Rep. No. 864, 3d paragraph, page 1) and reported out a wholly new measure in the nature of a substitute for the 1918 Act. It was from § 5 of that bill that agency authority to revise wage orders in effect for one year is derived — the provision which eventually became § 36-406 of the new Act, cited by the majority to justify the challenged action by the Board in revising MWO-10 to set a rate higher than the statutory minimum. The managers of the Senate bill, as the majority opinion makes plain, successfully resisted efforts not only to give special treatment to the hotel and restaurant industry, but also a proposed amendment preventing wage orders from exceeding the statutory floor. I readily concede that if the Senate bill had been enacted into law, the Board would have been vested with statutory authority to do what it did in this case.

Far from “shedding . . . brighter light on this aspect of the controversy”, however, the Senate history is totally irrelevant to the issue. The text of the Senate bill did not give the hotel and restaurant industry even a short moratorium from the general provisions respecting wages and maximum work weeks. In fact, it contained no reference whatsoever to Wage Order No. 10 or to the industry covered thereby. Accordingly, the history of the Senate bill on this particular issue is meaningless, for in conference several months later H.R. 8126 was again completely rewritten (H.Rep.No. 2175, 89th Cong., 2d Sess. (1966)).

It was in conference that the language now codified as § 36-403(a)(l) and (2) was first written.4 The conference bill was then adopted in both houses without explanation on the floor of either chamber by the managers of the legislation with respect to the compromise on MWO-10.

The original House bill contained no provision for periodic review and readjustment of wage orders which now appears in § 36-406. This was taken from the Senate bill. Thus, there is nothing in the cryptic language of the report of the House conference managers which supports the opinion. It should be noted that even this reference in the House conference report is somewhat inaccurate, as the escalated statutory wage rates in the conference substitute were higher than those in the House or Senate bills providing for successive annual minima in excess of old MWO-10, of $1.25, $1.40, and $1.60, as compared to $1.-15 and $1.25 in the first House version (§ 9(c)(2), H.R. 8126).

The reason for this discrepancy is that during the several months that elapsed between the passage of the Senate substitute and the date the conference bill was enacted (October 15, 1966), Congress had passed a set of comprehensive amendments to the Fair Labor Standards Act (Act of September 23, 1966) 5 which, inter alia, (1) raised the minimum for previously covered employees from $1.20 to $1.60, and (2) removed the prior plenary exemption for hotel and restaurant employees — mitigating such coverage, however, by permit*316ting the newly covered employers to “catch up” over a five-year period by paying $1.-00 the first year, $1.15 the second, $1.30 the third, $1.45 the fourth, and $1.60 thereafter. There can be no doubt that the action taken by Congress with respect to the newly covered industry at the national level had its impact on the managers of the D.C. bill, and that is why they raised their sights above $1.25 in setting a new statutory floor when the local bill was revised in conference. It also explains the fact that with the hardship cited by employers in the hotel and restaurant industry in readjusting pay scales to catch up to the national standard the conferees decided that for this industry, $1.60 should be the eventual highest minimum under both the national and local wage amendments.

It should be noted that from the very inception of national wage-hour legislation, Congress displayed considerable reluctance to impose minimum wages on hotels and restaurants. In the original Fair Labor Standards Act of 1938, hotels and restaurants were excluded because of a broad exemption for “local retail and local service establishments.” When this exemption was taken away from the bulk of the retail and service industry by the 1962 amendments to such Act, Congress wrote a specific exception for employers in hotels and restaurants which persisted until the 1966 amendments. Even then, the coverage applied was subject to a gradual five-year extension. In view of this long exclusion, when Congress in 1966 extended the Federal Act to this industry, it is understandable that in revising the District of Columbia Act contemporaneously Congress decided that special and similar treatment for hotel and restaurant employees was also called for in the local statute.

II

The Erroneous Construction of the Administrative Procedure Act.

(a) The Board’s Denial of Procedural Safeguards.

One of the major objections raised by petitioners was the refusal of the Board to conform to the procedural safeguards of the D.C. Administrative Procedure Act, D.C.Code 1973, § 1-1501 et seq., particularly the provisions of Section 1509 which, inter alia, require the agency in its notice of hearing to provide opportunity to present evidence and argument on all issues, to permit the parties to conduct cross-examination, to make findings of fact upon each contested issue of fact, and to base its findings “in accordance with the reliable, probative and substantial evidence.” They argue that because of the Board’s failure to conform to this section of the Act, they were aggrieved by—

(1) Imposition of conditions of employment in the final wage order concerning matters not mentioned in the notice of hearing, thereby depriving petitioners of an opportunity to be heard on such issues.

(2) Introduction of and reliance upon documentary exhibits relating to living costs without opportunity to cross-examine.

(3) The use of such hearsay material to support a finding that $2.40 was necessary to provide a single employee adequate maintenance and health protection in violation of the requirement that such findings be based on reliable and substantial evidence and in disregard of countervailing evidence, thus failing “to make a finding on each contested issue of fact.”

(4) The absence of any evidence whatsoever to support a finding that the fair and reasonable value of the work is in the range of $1.90 to $2.06 an hour.

(b) Contrary to the Majority Opinion, the Board Proceedings Were Subject to the Administrative Procedure Act.

The Board does not deny these allegations of administrative unfairness. It defends its conduct of the proceedings, however, on the startling theory that a minimum wage determination is not a “contested case” and consequently the Board was *317free to deprive petitioners of the fundamental safeguards provided by § 1-1509 against arbitrary agency action. What is even more startling is the acceptance of this proposition in the majority opinion. — a view which flies in the face of a holding of this court on the precise issue, Allen-tuck v. District of Columbia Minimum Wage and Industrial Safety Board, D.C. App., 261 A.2d 826, 832 (1969). The rationale of the majority is that there is a distinction between adjudication and rule-making, termed a legislative or quasi-legislative function of an administrative body. In support of this thesis, the opinion quotes at length from an elementary hornbook on administrative law, a decision6 of the United States Court of Appeals for this circuit made prior to the enactment of the local Administrative Procedure Act, and a citation to another circuit decision affirming an order of the Civil Aeronautics Board.7

I am quite aware of the difference between rule-making and adjudication, but what the majority overlooks is that the kind of rule-making involved in a minimum wage determination has been specifically held by both our circuit court and this court to require the procedural safeguards prescribed for adjudicatory proceedings, Wirtz v. Baldor Electric Company, 119 U.S.App.D.C. 122, 125, 337 F.2d 518, 521 n. 4 (1964), and Allentuck, supra 261 A.2d at 832. In the latter case, we said:

For rule-making proceedings, both the Administrative Procedure Act and the District of Columbia Administrative Procedure Act, effective October 21, 1969, require that findings of fact and conclusions of law adhere to the standards applicable to the agency adjudicatory process. We apply these standards to the Wage Board’s findings and conclusions in these cases. We think all interested parties are entitled to know, and this court on review must know, the basis and reasons for the Wage Board’s action. (Footnotes omitted.)

In making this observation, we referred specifically to § l-1509(c).8 As none of the provisions in § 1-1509 is applicable except in “contested” cases, this was obviously a holding that a minimum wage proceeding fell within this category. Hence petitioners’ assumption that the Board was “engaged in the conduct of a contested case” is supported by a considered holding of this court with respect to that very agency.

Although the majority opinion does not purport to overrule Allentuck, it is plain that it does so, because it rejects the Allen-tuck thesis that § 1-1509, being applicable to minimum wage proceedings, requires that findings of fact by the Board “be supported by . reliable, probative, and substantial evidence.” How such findings can possibly be made in the absence of an evidentiary hearing escapes me.9

*318The majority opinion also relies upon certain procedural provisions of the Minimum Wage Act itself, particularly § 36-407, to bolster its conclusion that the Act did not contemplate a full evidentiary hearing with the right, of cross-examination. Conceivably this might have been the situation prior to the subsequent enactment of the local Administrative Procedure Act. But as we have consistently held until today, agency procedures which do not comply with the APA have been superseded. Wallace v. District Unemployment Compensation Board, D.C.App., 289 A.2d 885 (1972); Woodridge Nursery School v. Jessup, D.C.App., 269 A.2d 199 (1970). Thus, the test of whether a particular proceeding before an administrative agency is a “contested case” depends upon the wording of the APA, not the organic act creating the agency.

Moreover, the narrow construction placed on the Administrative Procedure Act by the majority cannot be reconciled with our decision in Capital Hill Restoration Soc. v. Zoning Commission, D.C.App., 287 A.2d 101 (1972), which petitioners did cite. There, we rejected the notion that the term “contested case” was always synonymous with “adjudication” quoting the Commissioners on Uniform State Laws to the effect that “. . . under the Model Act it is desired to apply the contested case procedures to rate-making”. (287 A.2d 101, 104).

We went on to hold that if the statute or regulation authorizing rule-making requires the agency after hearing to make certain findings of fact as a condition precedent to its ultimate determination, such proceedings fall within the definition of a contested case in contradistinction to a legislative action predicated not on evidentiary findings but considerations of broad policy.10 Obviously the determination of a minimum hourly wage rate is a form of “rate-making” and must — under the Minimum Wage Act — be guided by preliminary findings of fact with respect to the three criteria which the majority opinion concedes are “spelled out” in § 36-406 (e) of that statute. The wording of Section 1509(b) of the APA on which petitioners rely makes it crystal clear that this section of the Code applies to rule-making—

(b) In contested cases . . . the proponent of a rule or order shall have the burden of proof. . . . (Italics supplied.)

In this particular determination, failure of the Board to accord their statutory procedural rights to opponents of the proposed rule — a 40% increase in the minimum rate —was no mere technicality falling under the head of harmless error. The inflationary nature of the order 11 was largely due to a finding with respect to the rate of wages “necessary to provide adequate maintenance and to protect health” based solely on a documentary exhibit (No. 61) called a “Cost of Living Budget for an Employed Person Living Alone” — a sun ey apparently prepared by the Board itself. No oral testimony was received to show the basic *319sources of the underlying information. Thus, any opportunity for cross-examination was foreclosed. In Wirtz v. Baldor Electric Company, supra, where the Secretary of Labor based a finding on a statistical exhibit without disclosing the sources of the figures or the raw data on which the table was compiled, the reviewing court set aside the wage determination because such procedure prevented the other side from calling and cross-examining the suppliers of the basic information. The court held that parties in a minimum wage hearing have a statutory right to “conduct such cross-examination as may be required for a full and true disclosure of the facts.”12 While the quoted language was taken from Section 7(c) of the Federal Administrative Procedure Act, these very words are also used in § 1 — 1509(b). Moreover, the Board’s omission in its public notice of hearing of its intention to place new and amended definitions and regulations in its revised Wage Order No. 10 made its final order fatally defective under § 1-1505(a), as petitioners were never given an opportunity to address themselves, let alone rebut, the propriety of such revisions.

Ill

The Conflict of Interest on the Part of One Member of the Agency.

One of the most serious objections to the wage order raised by petitioners relates to an asserted conflict of interest on the part of one of the three members of the Board, Joseph A. Beavers, identified in the majority opinion as business agent of the Cooks, Pantry and Kitchen Employees Union, Local 209, and a member of the joint executive board of the Hotel and Restaurant Employees and Bartenders International Union. The joint board in question is the bargaining representative for employees in the downtown hotels and negotiates in their behalf multiemployer contracts with the local hotel association setting wage scales and conditions of employment for the various occupations covered thereunder, including waiters, bartenders, culinary workers, chambermaids, bellmen, porters and office clericals. The local which he manages as business agent is also the principal union for kitchen employees in the numerous restaurants in this area. From the standpoint of tenure of union office, the salary and perquisites attached thereto, it is apparent that Member Beavers had a substantial personal stake in the outcome of any wage proce'eding affecting hotels and restaurants.

An object of all administrative law reform legislation, including § 1 — ISOlff. of the D.C.Code, is to subject to the searching light of judicial scrutiny any conduct on the part of an official or staff member of an administrative tribunal which compromises the integrity of any of its decisions. As a result of the Board’s refusal in advance of hearing to grant the procedural rights of § 1-1509(b) to parties appearing at the hearing,13 petitioners argue that they were deprived of an opportunity to prove all grounds for demanding the disqualification of Member Beavers and thereby establish a factual record to enable this court to review the issue.

Petitioners say that if they had been allowed to develop the facts they could have shown that Mr. Beavers engineered the ultimate outcome. They point to his participation in the preliminary decision to revise that wage order applying primarily to occupations in his own constituency, his *320selection of only colleagues of his from the joint board as the employee representatives on the ad hoc committee which recommended the wage subsequently adopted by the Board, his attendance at meetings of such committee, and his sitting on the Board at the final hearing after ignoring a request to disqualify himself. They also say that the final order included major changes in conditions of employment which the union had vainly attempted to obtain from the hotels in grievance sessions.

There is no material in the record which proves this last allegation, or discloses just what part Mr. Beavers played in executive sessions of the Board. The record does reveal, however, that the hourly minimum rate of $2.25 set in the challenged order was 15 cents in excess of the minimum contained even in the union contract with the Hotel Association. As this contract was to expire a few months after the hearing, petitioners assert that the resultant wage order was calculated to accord the joint board a considerable strategic advantage in the projected negotiations as it demands for a wage increase would start not from the contract floor but from $2.25, thereby increasing the pressure for proportionately higher wages in all occupations above the lowest level.

Whether or not the challenged upward wage revision was indeed the product of such a strategem on the part of Member Beavers, on this state of the record, can only be a matter of speculation. The inexorable fact, however, that the decreed minimum was substantially higher than the corresponding union wage — the rate the Board found synonymous with the wage paid by “fair employers” — renders the agency action suspect. It can scarcely be reconciled with what the Board decision itself tells us was the primary objective of the 1966 Act—

The people to be directly helped by this proposed legislation are what may be called the working poor who work at the most arduous and menial tasks. .

They are not members of unions and are unable to bargain for a decent wage.14 In short, even the most liberal sponsors of the revised Minimum Wage Act of 1966 did not envisage is as an instrument to jack up union wage levels.

The majority opinion, apparently recognizing that petitioners were frustrated by the Board’s own refusal to provide information relevant to the disqualification motion, accepted the gravamen of the charges against Member Beavers but concluded that even if proved, this aspect of the proceedings was irrelevant. Briefly summarized the reasoning of the majority is that while a pecuniary interest of a member of a quasi-judicial body in the outcome of a case on which he sits is ind'éed a ground for disqualification, a tripartite tribunal is an exception. The opinion cites a Kentucky case, Young v. Neale, 457 S.W.2d 358 (1970), holding that where a statute prescribes that an administrative board shall be composed of persons representing designated economic or social interests, an inquiry respecting the favorable bias of a Board member to the segment of society he was selected to represent is improper, as the legislature had determined that the varying interests would counterbalance each other.

In applying the rational of this decision to the hypothetical facts of this case, the majority takes the position that however partisan Member Beavers’ role was in the challenged proceedings, his conduct was proper as he was expected to be partisan in the interest of employees, just as Edward Austin, a third member, was expected to be partisan in the interest of employers. This thesis is expressly based on the administra*321tive order creating the Minimum Wage Board stating:

. As far as practicable, the members shall be so chosen that one will be representative of employees, one representative of employers, and one representing the public. . . . 15

Also quoted is a passage from an opinion, Arnold v. United Air Lines, Inc., 296 F.2d 191, 195 (7th Cir. 1961), commenting upon the bipartisan character of the “System Board” that arbitrates grievances of airline personnel, to the effect that members of such boards were supposed to be partial rather than neutral arbitrators. A more studied examination of this opinion would have revealed that there is a world of difference between the composition of the “System Board” and our local minimum wage board, for the court in Arnold noted that the members of the airline board were designated representatives of carrier and labor organizations. That is quite unlike the composition of the D.C. Minimum Wage Board, where the so-called employer member was neither the designate nor the representative of any management organization.

Member Austin was identified as a fuel dealer (Ex. 38 at 360). While he may employ two, three, or more persons in his business, he is certainly not an officer or agent of an employer organization or a “representative of employers” in the sense that he acts as an industrial relations director or executive secretary of a trade association whose regular job it is to represent corporations at the bargaining table, vis-a-vis unions. He may, of course, meet the statutory requirement of being “representative” of employers in a narrow meaning of the term, i. e., “typical” of the hundreds of employers in this city who operate small retail and service establishments. In this sense, any individual wage earner not holding union office could be termed “representative of employees.” Mr. Austin obviously had no personal economic interest in the wage proceedings and was not employed by any person, either hurt or benefited by their outcome.

In contrast, like the labor representatives on the airline board, Member Beavers is representative of employees in the broadest meaning of the term. He is an employee or officer of an employee organization whose full-time job is to represent employees in the very industry affected by MWO-10 in collective bargaining and grievance handling. His personal economic interest in these proceedings is manifest. The notion that this interest was counterbalanced by Member Austin’s participation in the preliminary wage conferences, the hearing, and the final decision-making is pure theory. Only if one of his counterparts in the industry, e. g., the executive secretary of the hotel or restaurant association, had been his opposite number on the Board could such “counterbalancing” have been even theoretically possible.

The record itself demonstrates that in actual fact there was no counterbalancing. Despite the expectation of partisanship in the interest of employers (presumably those affected by the proposed wage increase) attributed to Mr. Austin by the majority opinion, there is nothing in the transcript of the proceedings disclosing that he perceived this to be his role. In fact, all the indications are to the contrary. Although present at the ad hoc committee meeting when the recommendation for a 41% increase was denounced by the three employer members as “reckless” and beyond the power of the industry to absorb (Ex. 38, 36, 31) (all three voted against the proposal), he was apparently unsympathetic to their position. Even after listening further to their objections at the hearing, he joined — as the majority opinion concedes — in the final decision which not only sustained the controversial wage recommendation but imposed additional onerous conditions upon the employers.

*322One of these conditions, as the majority opinion reveals (see n. 6), imposed by the three Board Members including Mr. Austin, even overruled a 5-3 recommendation of the ad hoc committee to grant a 20% subminimum rate for learners (i. e., beginners) for a 60-day period. Instead, the Board reduced this figure to 25 cents (i. e., 11%) and the “learning” period to 30 days. As anyone with even the most rudimentary knowledge of minimum wage proceedings knows, the occupations at the bottom of the wage scale largely consist of newly-hired employees, among whom there is a constant turnover. This is particularly true of the hotel and restaurant industry where such occupations are usually filled by casual help. Wage rates in these classifications are the only ones directly and immediately affected by a minimum wage order. Thus, this revision of the proposed wage order, concurred in by the supposed champion of industry, was plainly a major addition to payroll costs. In short, the record itself refutes the premise that in Member Austin the petitioners had a friend in court and consequently had no ground to complain about Member Beavers’ adversary role.

Judicial holdings with regard to the airline “System Board”, although referred to in the majority opinion, are really helpful to petitioners’ case. They stand for the proposition that unless a bipartisan board is balanced, not just in theory but in fact, its composition is not immune from judicial examination. In the Arnold case, supra, it was held that the losing party was not aggrieved by the fact that the employer member of the tribunal represented a hostile interest, in view of a subsequent stipulation of “deadlock” between that member and the employee member, whereupon both withdrew from further consideration of the case and designated a neutral referee to hear it [296 F.2d at 195]. The court distinguished this situation from the one decided for this circuit in Edwards v. Capital Airlines, 84 U.S.App.D.C. 346, 176 F. 2d 755, cert. denied, 338 U.S. 885, 70 S.Ct. 186, 94 L.Ed. 543 (1949). There, the aggrieved workers had appeared before a board composed of two employer representatives, admittedly neutral in this particular case, and two employee representatives belonging to a rival union. In setting aside the award, which had rejected their grievance, the court noted:

. Even in a National Adjustment Board proceeding directly under the statute itself, the courts may look at the actualities of a dispute and the adjudication of it and will not be foreclosed by either assumptions or provisions that the collective agent acts in complete protection of the rights of each and every employee. We think that those views apply with equal force to the proceeding before us. (Italics supplied.) [84 U.S.App.D.C. 346, 352, 176 F.2d 755, 761]

The Edwards case is part of the law of this jurisdiction. Clearly under the Edwards holding condonation of Member Beavers’ conflict of interest cannot be permitted on the undocumented assumption that Member Austin was “expected to be partisan ... in the interest of employers” in the absence of any actual showing of such partisanship.

Moreover, this is not the only jurisdiction to recognize that even on a tripartite board, there is a difference between a generally partisan point of view and a special interest in a particular case.

This very distinction was treated in Board of Ed. v. International U. of Op. Eng., Loc. No. 68, 109 N.J.Super. 116, 262 A.2d 426 (1970), in which an attorney member of a Public Employment Relations Commission was found to have acted improperly by participating in a determination of that Commission which affected a union represented by his law firm. The court observed:

It is true that [the statute] provides for the appointment of seven members, two to be representative of public employers, two representative of public em*323ployee organizations, and three representative of the public. It does not follow that the representatives thus chosen are intended to be anything more than representatives of the “philosophy” of their respective sides. A clear distinction must be made between representation of a general point of view (i. e., public employers or public employees organizations) and advocacy on behalf of a client having a special interest in a case being decided by the tribunal of which the representative is a member. (Italics supplied.) [262 A.2d at 429.]

The majority opinion not only fails to come to grips with this decision, but glosses over the clear prohibition in 18 U.S.C. § 208 of participation by any District employee in any decision concerning a proceeding in which the organization he is serving as an officer has a financial interest.16 This section of the Code makes no exception for officers or employees of labor organizations who are special government [i. e., per diem] employees.

According to the majority, “[i]f this had been a quasi-judicial proceeding and it were shown that a member of the Board conducting the proceeding had an interlocking employment, such as that possessed by Board member Beavers, we would reverse out of hand. But this was not an adjudicative proceeding. . . . ”

I must confess that the proposition that the conflict of interest act is applicable to one kind of administrative proceeding (adjudicative) but has no application to another (rule-making) baffles me. For one thing, the statute itself, far from making such a distinction, refers to “a judicial or other proceeding, application, request for a ruling or other determination” — terms which seem to run the full gamut of administrative law.

The use of the term “quasi-judicial” as referring only to an adjudicative proceeding is novel. Commissioners of administrative agencies, e. g., the Interstate Commerce Commission, the Federal Communications Commission, etc., are usually referred to as quasi-judicial officers. They might well be surprised to learn that they are acting in a quasi-judicial capacity when they sit on a case involving license revocation of a carrier but cease to act as such when they participate in a rate-making proceeding, even though the degree of impact upon the public in a rate determination, and hence the desirability of guarding the rate maker against improper private influences, would seem considerably greater.

To bring the matter closer to home, it would appear that under the conflict of interest theory propounded by the majority, it would be highly improper for Member Beavers to sit with his colleagues on the Board on a minor wage claim filed by his union under D.C.Code 1973, § 36-606, on behalf of two or three workers even though the amount in controversy might be less than $100, but not improper to take an active part in the upward revision of a wage determination under § 36-406 in which that union had an interest in the neighborhood of several hundred thousand dollars. Agreeing that the “obvious purpose of the [conflict of interest] statute is to insure honesty in the Government’s business dealings”, I do not embrace the notion that its objectives were limited only to official actions labelled “adjudicative” or “quasi-judicial.”

I am authorized to say that Judge NEBEKER and Judge HARRIS join me in this dissenting opinion, and that Judge KERN concurs in Parts II and III thereof.

. D.C.Code 1973, § 36-403(a).

. I agree that another Congressional objective for MWO-IO employers was a revision of overtime compensation rates in the outstanding wage order. This matter, however, is dealt with in a different subsection — 3(b) (2) — and it was this mandate of Congress which occasioned the revision of the original MAVO-IO, i. e., the new order effective August 15, 1968, to which the majority opinion refers.

. Excerpt from § 9(a) of H.R. 8126, 89th Cong., 1st Sess. (1965) :

(2) Minimum Wage Order Numbered 10, effective August 15, 1964, shall be modified by the Board, without wage conference procedure and public hearing, effective on the effective date of the amendments made by such Act, to apply to men as well as women. In all other respects such order shall remain in full force and effect until August 15, 1967, at which time such order shall be modified by the Board, without wage conference procedure and public hearing; effective on such date, in accordance with clauses (2) and (4) of paragraph (1) of this subsection, except that the minimum wage rate shall not be less than $1.15 an hour beginning on such date, and not less than $1.25 an hour beginning August 15, 1968. Effective August 15, 1967, the Board shall establish by wage conference procedure and public hearing and without regard to subsection (c) the overtime wage rates for the employees covered by such order.

. The unequivocal words “whichever is higher” in reference to wage orders in § 36-403 (a) (1) and the contrasting word “thereafter” in (b) first appeared in the conference substi-stitute.

. 89th Cong., 2cl Sess., 1966 U.S.Code Cong. and Admin.News, pp. 978, 981-987.

. Jones v. District of Columbia, 116 U.S.App.D.C. 301, 323 F.2d 306 (1963).

. American Airlines, Inc. v. C. A. B., 123 U.S.App.D.C. 310, 359 F.2d 624 (1966).

. Allentuck v. District of Columbia Min. W. & I. Safe. Bd., D.C.App., 261 A.2d 826, 832 n. 23 (1969).

. At no stage in these proceedings was testimony taken. What Board counsel characterized in oral argument as the “record” consists of a transcript of the wage conference at which various members of the ad hoc committee, made up of public, union, and industry representatives, argued and voted on different issues and sought to reinforce their respective contentions by presenting documents (exhibits) — some of dubious relevance —and the transcript of the hearing on the recommendations. As the majority concedes, the latter was not an evidentiary hearing at all but rather a forum in which any casual passerby could submit his views orally or in writing. Many of the opinion givers represented no one whose wages or wage obligations were to be affected by the proposed wage order, and almost none pf those professing enthusiasm for the proposed order adverted to its potential for increased unemployment and higher prices.

. In citing Citizens Ass’n of Georgetown, Inc. v. Washington, D.C.App., 291 A.2d 699 (1972), as controlling rather than Capitol Bill, supra, the majority apparently overlooked this distinction, although the court in Georgetown went to some length to explain it.

. The Board members adopted the proposed rule in the face of a then current national policy under the Price Stabilization Act of disapproving even collectively bargained wage increases in excess of six percent. Subsequently the Cost of Living Council reduced the challenged order from $2.25 to $1.90. (This limitation was subsequently rescinded.) Apparently the Board was totally unmindful of the admonition given some years ago by the Supreme Court to another administrative body:

. . . It is sufficient for this ease to observe that the Board has not been commissioned to effectuate the policies of the . . . Act so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Frequently the entire scope of accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task. [Southern S.S. Co. v. N. L. R. B., 316 U.S. 31, 47, 62 S.Ct. 886, 894, 86 L.Ed. 1246 (1942).]

. Wirtz v. Baldor Electric Company, supra at 119 U.S.App.D.C. 129-130, 337 F.2d at 518, 525.

. Prior to the issuance of the final order, one of the petitioners in a suit to enjoin further participation in the proceedings by Member Beavers, Dotnick, Inc. v. Newman, et al., (Super.Ct. No. 1460-72), moved to take depositions to support its efforts for disqualification. The Board opposed depositions, asserting that the scheduled hearing was not part of a “contested case”. The trial court did not pass on this question. It denied injunctive relief, holding that in the absence of a final order, the suit was premature.

. The quoted language is excerpted from a paragraph in the Board’s opinion (Ex. 63 at 9) accompanying the revised wage order. The paragraph, in turn, was taken from S. Rep.No.864, 89th Cong., 1st Sess. (1965), released as previously noted when the Senate committee reported out its revision of H.R. 8126.

. Reorganization Order No. 36, Minimum Wage and Industrial Safety Board, as amended, Appendix to Title I of D.C.Code 1973, Part I.

. 18 U.S.C. § 208 prohibits

. . . an officer or employee of the District of Columbia, including a special Government employee, [to participate] personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a ruling or other determination ... in which, to his knowledge, he . [or an] organization in which he is serving as officer, director, trustee, partner or employee . . . has a financial interest. . . . [Italics supplied.]