Baltimore Building & Construction Trades Council v. Barnes

Eldridge, J.,

dissenting:

In my view, the Commissioner of Labor and Industry was justified in taking the position that a labor organization may be an "interested person” in an administrative proceeding to resolve alleged violations of the prevailing wage law, even though the organization does not represent the workers performing the contract at issue. The language of the pertinent statutory provision,1 the general purpose behind prevailing wage legislation, and proper deference to the view of the administrative agency in a specialized area such as this, all support the Commissioner’s construction of the statute. Accordingly, I disagree with the majority’s conclusion that the subpoenas were improperly issued.

As the majority notes, the central purpose behind prevailing wage legislation is protection of workers from substandard wages on government projects. United States v. Binghamton Construction Co., 347 U.S. 171, 177, 74 S. Ct. 438, 441, 98 L. Ed. 594 (1954). A union, on the other hand, *30has an interest in protecting the job security and economic status of those workers comprising its membership. A prevailing wage law assists a union in obtaining its goals by preventing contractors from basing successful bids for government contracts upon substandard wage schedules.

The Maryland Legislature has expressly recognized the interest of a labor union in the prevailing wage law. Art. 21, § 8-505 (a), of the Code, permits "any representative of any classification of workmen” to petition the Commissioner of Labor and Industry for review of a prevailing wage determination. However, a union’s interest in a public works contract does not cease when the appropriate wage determination has been made and the contract has been awarded. The union retains an interest in assuring that the contractor who bid successfully follows the requirements of the very prevailing wage determinations that formed the basis upon which all participating contractors should have formulated their bids. If a union is not permitted to participate in enforcement proceedings, it is hindered in protecting its members from unemployment caused by an unethical nonunion contractor submitting the lowest bid for a government contract, intending to violate prevailing wage laws.

While the enforcement provisions of Art. 21, § 8-507, do not specifically provide for participation of labor organizations, the statutory language that "[e]very interested person shall have an opportunity to be heard in respect to the matters complained of’ is very sweeping. The words are sufficiently broad to support the Commissioner’s decision that petitioner could validly participate in a hearing on respondent Barnes’s alleged violation of the prevailing wage laws, in order to protect the interests of its members.

The federal prevailing wage law, or Davis-Bacon Act, 40 U.S.C. §§ 276a — 276a-5 (1976), provides persuasive authority for construing the state act. While there is no provision comparable to Art. 21, § 8-507, the federal statute in 40 U.S.C. § 276a-l does provide for termination of a federal contract for failure to pay required prevailing wages. As the majority notes, the administrative regulations pertaining to this rule are set out in 29 C.F.R. §§ 7.1 — 7.8 *31(1980). Section 7.2 deals with the right of "any interested person” to seek a modification of a determination of the Wage Appeals Board. "Interested person” includes:

"[a]ny contractor, or an association representing a contractor, who is likely to seek or to work under a contract containing a particular wage determination, or any laborer or mechanic, or 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. . . .” (29 C.F.R. § 7.2 (b) (1), emphasis supplied.)

Although the majority believes that the broad language of the above regulation renders federal cases such as North Carolina Bldg. & C.T.C. v. U. S. Dept. of Transp., 399 F. Supp. 58, 63 (D. Ga. 1975), and International U. of Operating Eng., Local 627 v. Arthurs, 355 F. Supp. 7, 14-15 (D. Okla. 1973), aff'd, 480 F.2d 603 (10th Cir. 1973), valueless in interpreting the Maryland statute, both the federal regulation and the cases bolster my belief that the term "interested party” contained in Art. 21, § 8-505 (c), may validly be construed to include labor unions or associations of unions which do not represent the workers employed under a disputed prevailing wage contract, but which do represent workers employed or seeking employment under a different contract containing the same prevailing wage determination. See Southeastern Wash. Bldg. v. Dept. of Labor, 91 Wash. 2d 41, 586 P.2d 486, 488-489 (1978) (trades council standing upheld by court sitting en banc). See also North Georgia Bldg. & Const. Trades v. Goldschmidt, 621 F.2d 697 (5th Cir. 1980) (permitting trades council to bring suit under Davis-Bacon).

This Court has consistently recognized the deference to be given the construction of a statute by the agency administering that statute, when the applicable language will permit the administrative construction. E.g., Holy Cross Hosp. v. Health Services, 283 Md. 677, 685, 393 A.2d 181 (1978); Demory Brothers v. Bd. of Pub. Works, 273 Md. 320, *32327, 329 A.2d 674 (1974); Department v. Greyhound, 247 Md. 662, 669, 234 A.2d 255 (1967). This deference is particularly appropriate in a specialized area such as labor relations, where the Commissioner of Labor and Industry has much greater expertise and experience in' the application of the prevailing wage law than the courts have. Cf. Board v. Hearst Publications, 322 U.S. 111, 130-131, 64 S. Ct. 851, 860-861, 88 L. Ed. 1170, 1184-1185 (1944). The Commissioner’s construction is clearly permissible under the generalized language of the statute. Certainly, his construction does not violate any "plain and unambiguous” meaning of the words themselves.

I believe that we should reverse the judgment of the Court of Special Appeals and uphold the order of the circuit court requiring compliance with the subpoenas issued by the Commissioner of Labor and Industry.

. The relevant part of the Maryland Prevailing Wage Law, Maryland Code (1957, 1981 Repl. Vol.), Art. 21, § 8-507 (c), reads as follows:

"(c) Hearing; Sling of order. — Within 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, together with a statement of the facts disclosed upon such investigation, which notice shall be served personally or by mail on 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, at the time and place specified in such notice, which time shall not be less than 10 days from service of the notice. .. .” (Emphasis supplied.)