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

one, pres- to this none combine site many pointing factors

ence the scene so any one may It guilt.

toward as inconclu- could be viewed

those factors coupled presence, but alone with

sive when hold, they together, taken that when

we descriptive short- enough.

are Reduced

hand, appellant in (1) this record reveals: proximity to

very physical and time close attempt to scene; (2) flight; (3) arrest; an im- flight just (4) before

cover

probable explanation of and inconsistent

conduct; episode-association commit the motivated to (a)

one who was pe- most

offense, highly and who was (b)

culiarly capable from the benefiting

theft, parked near- (c) had a car who of the stolen to facilitate removal

goods. judgment of therefore conviction

Affirmed.

HOTEL ASSOCIATION OF WASHING- TON, Brighton C. Ho- D. Petitioners, al., tel et

DISTRICT OF COLUMBIA MINIMUM AND SAFE-

WAGE INDUSTRIAL BOARD, Respondent. TY

No. 6466. Appeals.

District of Columbia Court of

Argued July 2, 1973. En Banc

Decided March Grünewald,

Allen H. Siegel Mark G. C., Washington, petitioners. D. for Golumbic, Counsel, Corp. E.Calvin Asst. C, Washington, Francis D. with whom C. Corp. Counsel, Murphy, and Richard W. Barton, Counsel, Washington, Corp. Asst. C., brief, respondent. D. were on the REILLY, Judge, Before Chief KELLY, FICKLING, KERN, GAL- LAGHER, NEBEKER, PAIR, YEAG- HARRIS, Judges. LEY and Associate PAIR, Judge Associate : petition Challenged for review is (MWO- Wage Minimum No. Order 72.1 72.1) of the District of Columbia Minimum Wage Safety (the and Industrial per- Board).1 employers Petitioners are hotel, in the restaurant and allied sons oc- cupations, aggrieved and feel requires because it them to Board’s order improve- pay higher wages and make other employer-employee in the relation- ments ship. 13, superseded,

The order effective June 1972, No. Wage Minimum Order “Hotel, (MWO-10), Restaurant and Allied Board, Congress authority of the creature exercise of the vested in them purposes Plan, Commissioners, Minimum the District of Columbia Re- § 1918, organization approved September 40 by No. June Law 960, Order amended, Code, amended, Appendix abolished I Title Stat. Reorganization 1952, Appendix pp. 121-22, Plan No. 5 of reestablished the Board and dele- authority gated substantially its Title I of D.C.Code to it all of the including transferred, “Dis functions were transferred to then au- functions so thority trict of Board of Columbia Commissioners.” rates. establish Occupations”, August appointment effective 1968.2 The letters of em- pursuant stayed, ployer employee We members of the com- 36-409(b), they repre- the effectiveness of MWO-72.1 mittee instructed that were petition pending respectively employers final decision on sent all em- court, ployees occupations review but or further order involved. only applied petition- appointment representa- insofar as to those letters undertaking ers who filed in this court an they tives of the instructed that sufficient to guarantee payment represent public. were to in- Such involved, differential repeated structions charge the event the order sustained.3 opening committee at meeting December provided by As District of Columbia appointment Notice of the com- (the Wage Act), Minimum Act D.C.Code was published mittee Register in the D.C. Board, 36-406(a), prior to § 13, 1971, on December together with a no- entry MWO-72.1, conducted investi- public tice a hearing be would sched- gation a and determined that “substantial following uled by upon action occupations number in the af- workers the committee’s recommendations. The by receiving fected were MWO-10 committee period met five during times provide adequate insufficient to mainte- December February 4, 1972, 1971 to aft- protect nance and health.” The Board to reported er which it to the Board its rec- thereupon Advisory convened an Ad Hoc regard ommendations in a minimum (1) to (the charged Committee and committee) wage, (2) meals, allowances lodging for consider, inquire report into and gratuities, and (3) special allowances for regarding Board its recommendations a conditions, (4) wage minimum for learn- for such workers. ers, part-time rate, (5) (6) split and shift charged, pursuant committee was to Sec- spread hours, excessive and uni- tion (e), 36-406 consider make also forms. regard recommendations to the Board gratuities by allowances received The first three meetings of the commit board, lodging, and oth- tee were devoted reviewing the exhibits er customarily services furnished submitted the staff of the Minimum employer. Wage Safety and Industrial de bating the e., merits issues, of two basic i. Composition of the as gov- committee an increase in the minimum and a erned statute4 consisted of three em- provision for learners’ At rates. ployer representatives, rep- employee three meeting, fourth proceeded the committee resentatives, representatives and three vote on the various upon issues which the public.5 Board had pri asked them to advise. August Manager first made effective MWO-10 was Hotel, General of the Shoreham 15, 1964, statutory wage after Operations Peoples conference Director Food procedures public hearing, Drug and was Stores. Board, August 15, revised effective employee representatives The three were 1968, pursuant District of Columbia respectively Agent the Business of the Cafe- amended, Wage Minimum Act of teria (Local and Restaurant Workers Union (c) (2). D.C.Code 473), Agent the Business the Waiters (Local 781), Union and an officer of 3. As of October there was excess (Local 80) Hotel Service Workers Union who $600,000 held escrow. replaced by Secretary, was later the Executive Treasurer, Agent and Business of the Bar- 36-406(b). (Local 75). tenders Union employer representatives 5. The three were The Chairman of the Board served as an respectively the Vice President of Restaurant ex-officio member of the committee. Operations Corporation, of the Marriott Bryant This [industry was the mini Mr. resolved mary issue member]: following: Mr. motion based on the be recommended to mum rate to split Joseph is member of the A. Beavers this issue committee Board. On hourly rate. The Board and is also Wage D.C. Minimum to 3 in favor of Board of member of the Executive debate of committee indicated Joint Hotel, Restaurant, ma and Bartenders labor and members industry representatives of Order jority International Union. Since shift, split opposed. 10 deals restau- On four other No. hotel issues— allowance, tip part-time industry, rate and rant Mr. Beavers has a clear uniform same, two have split and on of interest. He should not credit—the conflict lodging participated allow in the of this Com- allowance and selection issues—meal mittee, participated the interest and should not vote to with have ance—the was 8 not discerni in our identification of the dissenter deliberations. is

ble The vote on one from record. that a committee We recommend new rate, sue, previously that of learner’s par- appointed Beavers’ without Mr. applicable industry, in in to this resulted ticipation, himself he remove public representatives joining dustry and any participation process together prevail unified labor over revising Wage Order No. 10. opposition.6 [public Fortune Chairman member]: debate on all of the aforemen- While ask who is Mr. Beavers? May you, I spirited, degree issues been tioned had industry’s opposition the recommen- : Right Mr. Richardson member] [labor advisory (primar- committee dations of here is Mr. Beavers. ily wage) did be- minimum $2.25 meeting at apparent their final come until [public Fortune Chairman member]: only item of business was sorry. I’m report an adoption of as the committee’s your you speaking to Have finished mo- accurate of the voted recommen- statement [Emphasis tion? added.] vote was called the dations. When the industry re- registered members no three is the This first indication in the record sponse. inquiry After an from Board industry under review that the was con- Newman, industry member Chairman one membership cerned Beavers’ on about Mr. explained want to feel we don’t “[w]e Safety the Minimum and Industrial previous any part it” and that the have presence and his at the Ad Ad- Board Hoc very day insofar meeting “was reckless visory meetings. Committee industry as is concerned.” the restaurant allegation After the recklessness members, public ap- labor Both as it members, spoken one the labor pears record, registered some dis- report industry’s that no members moved colloquy may at the motion below re- be issued and that the entire matter be is illustrative attitude: begin back Board to anew. ferred in- May another [public motion was seconded Miss McConnell : The member] question dustry explained employer then as fol- ask a member and I mem- lows: bers Committee? sig- public rate introduced The of the learners’ is one members evolution proposed nificant. This was first rate with maximum duration same learners’ percent days. prevailed industry as a to be of 60 This recommendation member pay- vote, having and to less than a 5-3 one member de- up parted. subsequently adopted In the face of to six months. The Board able strong opposition per labor recommendation learners’ rate of hour with a 30- day, however, day Later maximum duration. was defeated 6-3. Hollywood [industry of in- you felt there was a conflict Mr. If member]: Committee, makeup They they of this called and

terest said discuss- question nearly my raised before. I fell why wasn’t the $2.50. out chair. in an operated for weeks six We have ‡ :}{ # charge which was attempt to answer Mr. If Richardson [labor member]: us ad hoc committee? placed on figure way you had come out the wanted to, Reid, Hollywood it [industry Mr. there wouldn’t have been Mr. member]: think, always hope, is that conflict of I interest. There’s feel can out with what we we come [industry Mr. Reid : Possibly. member] resolving— reasonable it hadn’t out your way, come there If probably : would have [public Miss Hold been some McConnell member] conflict interest charged against (Empha- us. it. added.) sis words, you’re saying what In other The motion to you with the send the disagree contents matter back to the interest is Board was report and the defeated 6 3 and the recom- conflict of mendation of the advisory not the essential matter. committee was passed signature. around for The three : Hollywood [industry No. Mr. member] industry members sign refused to the rec- meetings progressed, it be- I think as ommendation and went on record de- apparent came to us that there were clining participate signing. grounds possibly for a conflict of inter- recommendation was then transmitted to earlier, might up brought I est. have the Board. I but due to unfortunate circumstances prepared possibly proposed have —I was absent for would revision of meetings containing be- MWO-10 two because of situations the recommenda tions of the yond my committee and control. scheduled a public hearing required by the Act.7 : You [public Miss McConnell member] Notice of hearing the scheduled for March meetings, many Mr. weren’t absent at 17, 1972, containing summary of the ma Hollywood. just those We didn’t have jor provisions proposed of the revised meetings. wage order, published was in the local newspapers and the Register.8 D.C. Hollywood [industry Mr. : I member] February 29, 1972, On attorneys for meeting. know I missed a Dot- nick, Inc., a of member the affected indus- [public A Chairman Fortune member]: try, wrote to Board member and Beavers all you meeting missed. asked him to recuse pro- himself from the ceedings 2, 1972, and on March brought an There Mr. Richardson : [labor member] Superior action the of Court the Dis- meeting. no actions taken at that were trict of against Columbia Board members They your ab- were tabled because of Newman, Beavers and Austin and the sence. Board complaint itself.9 The premised was [public Fortune It upon Chairman the member]: asserted conflict of interest of just discussion. was Board Beavers, member the fact that none 36-407(a). Newman, (D.C. 9. Dotnick C.A. No. 1640-72 Super.Ct, 9, 1972), aff’d, March No. 6358 February appeared in the The notice (D.C.App., 16, 1972; unreported March or Evening Star, of the March and issues der). February the Wash- March issues of February ington Post, and the issue Register. D.C. membership would advi- whose hoc men for unions members of the ad labor proposed action. by the Board’s represented occu- affected sory the allied committee three participants included remaining committee’s The pations and fact non-voting del- clergy, members econom- recommendation violated Phase II Rep- egate to United States House regulations promulgated guidelines ic resentatives, representatives various Act pursuant to the Economic Stabilization politi- consumer, community development, have sought 1970. The relief was Except organizations. and women’s invalid cal proceedings declared sought a those enjoin Board for who ab and to void initio Board, proposed by all higher than that to en- continuing proceeding views, presented those from par- save who join Beavers from Board member community, favored ticipating way business the revision per hour rate. No. 10. Order Judge entered a Belson memorandum 13, 1972, Board, April on ba- On opinion complaint dismissed fact, adopted sis findings detailed —ef- jurisdiction holding (1) lack of proposed fective 1972—the revised June complaint allege any failed to clear viola- occupations involved, wage order for the deprivation proc- tion of statute or due 72.1, superseding and issued its No. Order and, law a fail- that there was ess MWO-10, as amended. Notice ure exhaust administrative remedies. published Board’s action was in the Wash- brought The case was to this court on mo- 19, 1972, ington April Post on appeal an emergency injunc- tion Register May D.C. 1972. The pending appeal tion and it in all re- brought Board’s and order decision spects denied.10 Act, pursuant here review 1973, 36-409(a). amended. D.C.Code hearing commenced March and was reconvened March petitioners’ We address at the outset presentations. additional allow contention that the Board was without au- After the hearing, close the record thority promulgate MWO-72.111because open kept April 1, 1972, per- until authority if the has no filing mit the state- of additional written controversy necessarily concluded since hearing princi- ments. At total 40of petitioners’ would, in other contentions pal appeared testify witnesses and five event, purely Urging academic. that During others the submitted statements. permitted not MWO-72.1 should period 15-day kept the record stand, petitioners say contrary first that open eight additional written statements Board, Congress by the intention fifty-three filed. were The submissions action, employees has established in for provided the Board with a cross-section of hotel, occupations restaurant allied community opinion on the issue before it. pre- wage a minimum excess of presenting Nineteen of those statements Act, 1973, by scribed were the affected business communi- D.C.Code 36- § ty employees spokes- and eleven were agree. 403. We do not Newman, (No. 9358, D.C.App. fixing wages 10. Dotniek v. un of minimum was held to be 16, 1972; unreported order). March violative Fifth constitutional as of the Amend guaranty ment of freedom of There contract. Board, (see Supreme Court, The when first note created after West Coast supra), 1, Parrish, 379, fix and was authorized to revise Hotel Co. v. 57 S.Ct. U.S. wage 578, (1937), expressly rates for and minors women 81 L.Ed. 703 overruled wage procedures provided Adleins, thereby supra, after by conference as the decision in breath Hospital, ing Act. In Adkins Children’s new life into the District Columbia 261 U.S. 43 S.Ct. L.Ed. 785 Minimum Law See Jawish v. (1923), provided Morlet, D.C.Mun.App., (1952). so much of the Act as 86 A.2d 96 pro- very purpose appears the Act was that the treatment While provide coverage, improve employees wages were broader vided for whose by wage overtime then controlled was different standards minimum MWO-10 protection, improve provided employees, other compensation from that for all nothing plain lan- means enforcement. To this end we have found employed (b) “Findings guage 36-403(a), and Declara consistent with its Section 1973, 36-401, (c) any that the gives indication Policy”, tion of intended, by petition- by 36-403(a) Congress Congress, Section insisted Act, ers, August provided first: freeze on and after employees wage affected rates Except provided (1) otherwise MWO-10. subsection, paragraph every pay em- employer shall each of his express the dissenting colleagues Our ployees (A) wage established that, statutory notwithstanding view wage is- employee such in a order each authority of the Board to reconsider subchapter wages (B) sued under this upward wage employers revise rates of following at : rates occupations in the several in the District Columbia, Congress really intended dur- (i) not than an hour less $1.25 employees wage whose rates February 1, ing year beginning then may controlled MWO-10 obtain wages only increases their minimum special Congress. majority act of (ii) not less than an hour dur- $1.40 does not legislative read statute or its ing year February 1, beginning history require incongruous such an re- sult. less (iii) than an hour $1.60

thereafter, higher. whichever is The fact is Congress, by that the D.C. 1973, 36-406, provided Code specifically (2) Every employer pay shall to each contrary, saying: of his whose rates are governed by Minimum Wage Order (a) any At time after a wage rate Number (effective August 15, 1964), within a wage has order been in effect as revised under (c) subsection (2) of year one may on [its] [Board] section, following own motion reconsider such rate rates: If, investigation, after opinion

(A) not less than [Board hour dur- sub- is] $1.25 stantial year number of August 1, workers in beginning the occu- pation covered order are (B) not less than an hour dur- receiving wages provide insufficient to year beginning August adequate maintenance protect and to and may health convene an ad hoc advi- [it] (C) sory less than an hour purpose committee for the of con- thereafter.12 sidering and inquiring reporting into and By (b) (2), provided Section 36-403 it by was public established the Board after a hear- during period commencing that on the ing. ending August 14, date its enactment and required by The Board was Section 36-403 1968, employees MWO-10 (e) (2) were to be com- revise, February 1967, 1, to effective pensated employment forty in excess of apply MWO-10 so as to to men as well as specified hours in workweek at the rate wage women and to revise further such order wage However, beginning in such provide order. Au- payment so as to for the of minimum gust 15, 1968, employees wages such were to be compensation and overtime in accord- compensated for such overtime at (a) rate (2) anee (b)(2). with Section and when 8126 reached proceedings H.R. subject investigat- on the to [Board] page by At 750 of floor of the Senate. by and submitted ed [it] [Board] 20, Record, January Congressional such committee.

to 1966, explained that: it was clear, therefore, all that It seems empowers version by Senate 36- intended wage in excess delay to orders issue 403(a)(2) (1) to (b)(2) [Board] provide statutory to period application floor order six months the pro- to employees employees wages with sufficient wage the new minimum rates to protect MWO-10, adequate maintenance and to and'(2) vide by require affected 1, 1968, the rate health. August that on and after compensation for such em- of overtime specific reference Javits, Senator pub- ployees by the Board after fixed motels, hotels, (such the service trades Support this view hearing. lic expressed his concern restaurants), history the act. legislative found in the operational cost caused that the increased Thus, H.R.Rep.No. (to accompany reduc- might result in a increase Cong., (1965), it 8126), 1st Sess. H.R. 89th consequent and a tion in the labor force page said at 371: city. deprivation needed of services No. As to Minimum Order Morse, managed the bill on who Senator August which became effective on floor, replied of the Record page remain in bill directs that it day: for that in- (modified full force effect women) until Au- clude men well as particular regard business- With gust the same 1967 .... On mentioned, restau- es has the Senator date, es- the overtime rate will be motels, rants, hotels, given a I have Board, by wage by the confer- tablished great question, deal attention to procedure hearing for ence absolutely cer- to be because we wanted employees occupations covered completely fair to tain that we would 15, 1968,the min- August the order. On I know of no restaurants and hotels. effective imum rate becomes presented to the evidence in the record employees. as to such support gives any committee that claims that unfair restaurants we are page effect is said at To same adopt if the minimum motels we Managers the Statement of hotel have floor. ... I talked House, H.R.Rep.No. 89th Part of the many other operators restaurant : Cong., 2d Sess. they Their attitude has been cities. guaranteed have the they wished could employees. Hotel and restaurant —The get in the operators income that such provided House bill Columbia, the tre- because of District of wages apply established the bill would into the tourist trade that flows mendous hotel and restaurant cov- year. city 12 months order No. re- ered minimum as women vised cover men as well followed efforts to amend the bill Then employees, approximately year after by striking providing for the those sections apply were to to other em- wage orders in issuance of excess ployees. sub- . The conference pointed statutory floor. Morse Senator bill, ex- stitute is the same as the House (and appears page at out this 760 cept delay application that the of Record, 20, 1966) January wage that the the minimum is set at 6 months. amending procedure minimum board prevailed brighter in. Shedding perhaps light wage even orders had the District aspect controversy appears this of at is the record since 1918. It Columbia day delegation Congress leg- made a dual for the same page of the Record authority. by rule-making a vote islative Both rejected that the amendment was § orders, voting. (b), authorizing wage 36-407 and 42 to regulations, (a), authorizing 36-408 § 864, S.Rep.No. examined 89th have We power grants contain broad “effec- to particular Cong., (1965), 1st Sess. “carry purposes tuate” out the page 8 on reference to the comments specific expression Act.” . . The or- wage of revised and new “[ijssuance regulations (b) of matter for 36-408 § der” and found no whatsoever basis (c) cannot be taken as indication Congress in- petitioners’ contention by Congress that such cannot also pur- to exclude from beneficent tended subject wage is order. The test 1973, 36-406, em- poses of D.C.Code § necessary provisions whether those are ployees by affected MWO-10. purposes to “effectuate” the of the Act “carry purposes wage or to out the of [a conclude, therefore, that the Board We * * * order], prevent the circum- statutory authority did not exceed its * * * it, vention or evasion when, procedures prescribed D.C. after safeguard wage the minimum rates 1973, (b) 36^107(a), Code §§ compensation and overtime established in (c), promulgated it MWO-72.1. wage Indeed, when [such order].” adopted, wage Act was orders contained urge Petitioners next MWO- provisions. In the entire context of fatally 72.1 is defective because contains structure, wage minimum we think regula new and amended definitions fairly Congress may be taken beyond power tions which were have a wage intended the form of order adopt. Board to Much the same conten issued here. A.2d at [261 831.] tion was made in Allentuck v. District Bd., Columbia Min. I. D.C. W. & Safe. So it in the case at The defini- bar. 826, App., 261 (1969). Brought A.2d complained tions by petitioners, together question into in that wage case or with the detailed delineation of minimum der containing, in addition to minimum standards, wage are nothing than more wage compensation rates, and overtime statements of such terms and conditions “employees definitions of such compen are calculated (1) assist Board “to commission,” sated “workers under the carry purposes order, out the of such age 18,” “handicapped workers,” “ap prevent the circumvention or evasion prentices,” learners,” shifts,” “adult “split it, and (3) safeguard the “uniforms,” expenses,” “travel “deduc rates and compensation overtime estab- tions,” “allowances lodging,” for meals and lished in it.” payment,” “basis of payment,” “time of Petitioners urge, however, that records,” even if “required “issuance of authority had promulgate that, It statements.” was contended MWO-72.1, the order per- should not exception rates, such defini mitted to stand because it adopted regulations tions were in fact within the without first giving the notice required by purview 36-408, of D.C.Code rather § Act. D.C.Code 36-408(d), and than a statement § of “terms and conditions” purposes District of for the Columbia of D.C.Code 36- Administrative § contentions, 407(c).13 Rejecting this Procedure Act (D.C.APA), D.C.Code court delared: 1973, 1-1509. § power regulations gust make conferred 1967), vested tbe District of Co- 36-408(a), now, D.C.Code lumbia Council. Reorganization virtue of Plan No. 3 of 1967 (32 67-9507; F.R. F.R.Doc. filed Au- 36-407(c). review of the Board short to this contention is court to orders

The answer above, that, by pointed the Board was not conferred the D.C. APA but rather as out Act, adoption any recently by the (most the as amended not concerned the proposed 1970), rather with regulation 36-409(a), D.C.Code well § —but wage after the definitions and minimum standards effective date of D.C. APA. pur- By proposed provided for the this amendment it was by committee that: poses 36-407(c). of § Any person aggrieved by an order [of may a . . . obtain re- Board] undisputed It in the record that ... in the District of Colum- view “Proposed Revised Or notice of Appeals by . filing bia Court of by required as D.C. published der” was petition a .... The re- written (a);15 that the Code notice § governed by shall be the District of view public place of the set forth the time and Act. Columbia Procedure Administrative “summary of it a hearing; contained act, Thus, 36-409(a), re- organic proposed re major provisions of the § by petition on quires review this court order,” proposed including defi vised person by order, any aggrieved an order ; proposed wage nitions and that the Congress Significantly enough, the Board. the ad hoc com recommendations upon the did not condition such review ex- mittee, data, living budgets, cost of require a case or istence of contested related materials would be available application provisions all of the D.C. prior public hearing thereto at APA. may be office Board. Whatever said, therefore, application respecting Moreover, organic provides act while proceedings, cer of the D.C. APA to the proce- prescribes hearing, for a it also the

tainly it than required no more follow, required pro- the Board is dures accomplished by published the notice by 36-407(a), D.C.Code viding public hearing proposed consider the that: revision MWO-10. publish a notice once shall

The [Board] But, public weeks, say petitioners, week, in a a four successive hearing printed revision of preliminary general circulation newspaper of Columbia, stating a within the MWO-10 was contested case in the District of APA,16 purview they and that . a hear- D.C. . . hold public will [it] process persons consid will were not accorded the due all interested at which opportunity be erations reasonable given mandated D.C.Code be a [Emphasis 1-1509.17 . . heard. . added.] believe, petitioners apparently phrases, do not emphasized But what have we statutory jurisdiction comport of this notion is that the with the overlooked publish required by specific parties law a notice once are [Board] shall week,' weeks, (other chapter), . . . to be successive than four general printed hearing newspaper after a before . circulation determined stating agency Columbia, .... [it] the District of place and at a named in the will a date may 17.(b) cases, except In contested notice, hearing all hold at which provided law, other than otherwise be jjersons given a reason- interested will be chapter, proponent of a rule or opportunity able heard. Such notice proof. shall have the burden of . order Every major summary pro- shall contain a present right party have shall proposed visions of the revised order. person his case defense counsel or documentary evidence, 1973, §.1-1502(8) : submit oral and evidence, pro- conduqt term case” rebuttal and to such cross- [T]he “contested means ceeding any agency may required . full before examination legal rights, duties, privileges the facts. which the and true disclosure of

305 made, however, type argument The is that if requires scheme a “contested case” this a re- case is not “contested case” then hearing. 1973, 1- precluded is view D.C.Code § connection, we first that observe In 1510, judicial appears which to limit re- procedural by the safeguards provided view to “contested cases.” It seems be- require that D.C. APA cases” “contested however, yond dispute, all parties given reason- “all thereto shall be Congress regard intended in this was that hearing,” of the D.C. able notice afforded should our review be controlled D.C. 1973, 1-1509(a). Code This notice is § APA standards. requirements with the of funda- consistent circumstances, process one Under the APA proceeding mental due is D.C. if application legal or are to could have further in this con- privileges at which duties troversy if, only adjudicated. urged petitioners, be Mullane Central See v. Co., proceeding board Hanover B. and T. contested 339 U.S. inquiry, therefore, Crucial to the is (1950). 865 In con- case. S.Ct. L.Ed. trast, involved, proceedings organic in this mandates character of the act case e., by publication, i. whether general hearing notice which would at the constitutionality questionable quasi-judicial capac- be at best Board functioned in a ity in proceeding adjudicating were the resolution of the immediate specific rights specific rights parties. qua- individuals in a si-legislative capacity in implementa- Secondly, note we that D.C.Code § tion, pursuant to D.C.Code 36- § 36-407, “public hearing” mandates a at 401(a) (b) purposes of the Act. parties” which not “specific but instead persons” op- “all A question interested are somewhat afforded similar presented portunity to language be This com- in Citizens Georgetown, heard. Ass’n of ports v. Washington, that found in the “contested Inc. D.C.App., 291 A.2d provision 699 (1972). case” but in- D.C. APA Involved in that case in- provisions stead with re- terim rulemaking amendments regula- to the zoning quire prior any adoption proposed by rule tions petitioner. We pointed agency give shall Commission, “notice the intend- out that the Zoning persons ed action so as to interested proposed afford consideration of the amend- ments, opportunity to submit ei- play data and views “must beyond role resolution orally writing, may speci- legal ther or in rights specific parties”, in such that: fied notice.” D.C.Code 1-1505(a). only distinction decision depend upon will

provision hand, 36- compilation analysis of exhaus- 407(a), public hearing an oral is tive information concerning the econom- option not left to the Board but ic, environmental and ramifica- aesthetic required. instead tions of development various modes of

Thirdly, statutory requirements Policy decisions “public made; hearing” op- must opinions that “a reasonable and the aof portunity to be heard shall be afforded to wide cross section of interested citizens persons” all may interested are Zoning inconsistent well be considered. The concept with the contested case which con- Commission’s evaluation of the area templates evidentiary hearing upon a full would not rest status particular right See property, cross-examination. Unit- pecu- nor would the Corp., Allegheny-Ludlum problems ed Steel liar of any States one individual U.S. 92 S.Ct. L.Ed.2d the area be paramount concern. (1972). short, proceeding before are the about Adjudicative facts facts amendments Zoning on Commission activities, parties and their business- relating city an area of a lacks es, result, properties. Adjudicative facts subject

specificity of matter usually questions of who did answer the proceeding. adjudicatory of an indicative what, when, where, how, why, with what quasi-legislative proceeding is intent; adjudicative facts are purpose ob- motive or hearing for the conducted go information, roughly the kind of facts that views taining facts and jury jury Legislative case. facts do public pertinent to the resolution decision, par- usually immediate not concern the policy [/d. of a 704-705.] help generally are facts which ties but qua- between a essential difference questions of tribunal decide law quasi-legislative hearing si-judicial Davis, Ad- policy and discretion. [K. clarity v. spelled out with Treatise, Requirement Jones ministrative Law Columbia, U.S.App.D.C. 116 District (1958).] Hearing, 7.02at 413 303-304, (1963). 308-309 323 F.2d administrative appear from the It does not There is was said: any dis- that there were record this case hearing legislative A relates to “the adjudicative or puted questions of facts making a rule for the As future.” any spe- legal right of immediate judicial inquiry, it distinguished from a Board presented to the party cific non-adversary proceeding is a adjudication. resolution policy applicable to seeks devise broad pro that the this it must follow From public generally, seg- or a substantial Board lacked the ceeding conducted thereof, ment rather than to individual result, “specificity subject matter parties. hearings, In such “it is not nec- adjudicatory proceeding.” indicative of an essary panoply judicial full Inc. v. Georgetown, Ass’n of Citizens Larche, procedures v. be used.” Hannah v. District Washington, supra; Allentuck 4 U.S. S.Ct. Bd., su & I. Safe. of Columbia Min. W. (1960). finding L.Ed.2d 1307 fact While pra. Capitol Hill Restoration Compare may to some extent be involved Commission, D.C.App., 287 Zoning v. Soc. process, process requirements the due subject of con A.2d where the (1972), cross-examination, confrontation “Legal rights, troversy was the immediate judicial inquiry, are hallmarks duties, specific parties” privileges of [and] present. necessarily quasi- Rather the development planned proposed in a unit legislative inquiry tends to broad consult change in upon a which was conditioned surveys, relevant data available from zoning. experience, published free studies and from the limitations of confrontation Notwithstanding foregoing, our dis- Initially,

and cross-examination. insist, upon the authori- senting colleagues depends inquiry staff quasi-legislative ty of District of Columbia Allentuck v. here, report As the staff often is work. Bd., supra, that Min. W. & I. Safe. public presented to the interested by the Board—look- proceedings conducted appear at a hear- invitation to ing toward the amendment MWO-10— praise. oppose [Foot- pur- in a contested case within the note omitted.] As 1-1502(8) view of APA. D.C. fact, proceedings con- a matter both C.A.B., Airlines, also American Inc. See in Allentuck and oral ducted 314-317, F.2d U.S.App.D.C. petition for argument in this court on the (1966). completed prior review were to October 1969, the APA. Davis said on this sub- effective date of D.C. What Professor is, therefore, illuminating: how ject particularly It difficult to understand thought employer representative could have been issue Each appointed Al- addressed and resolved the committee was this court advised first his proceed- lentuck was appointment whether letter of that: ings are or are not contested cases. In our “hotel, restaurant, The term and allied view, holds, case in this con- Allentuck occupations” includes such businesses as nection, no more than the Board must hotels, motels, houses, rooming apart- make at conclusion of a houses, clubs, restaurants, catering ment proceeding findings and a “sufficient basic services, carry-out shops, as well as food application findings reasoned of [such] preparation and food service activities in law,” agency policy and the as a condition stores, schools, hospitals, retail nursing precedent meaningful judicial review. homes, homes aged, homes Furthermore, earlier, as related we children, and charitable and or- religious court said Allentuck v. District of Co- ganizations. You, employer as member Bd., supra, lumbia Min. W. & I. Safe. committee, represent on the will all of Congress delegation legis- “made a dual of types these of businesses. lative rule-making authority.” A.2d [261 831; emphasis at supplied.] prior Thereafter and to the commencement deliberations, of was committee petitioners’

turnWe now to conten charged by the Board that: tion that the Ad Hoc Committee was im employer represents Each member all

properly constituted; specifically, that no types of businesses included within the employer representative of the “Allied Oc definition of the occupations .... cupations” appointed membership was on the committee. We transcript have examined the of the proceedings at the several sessions of the Act, 36-406(b), D.C.Code § committee, together pertinent exhibits, with provides respect composition of and have examined transcript also the of the committee that: the proceedings public hearing. We composed The committee shall be have, however, nothing per- found persons than not more three representing suades us that the employers interests of employers occupation, such Occupations” “Allied were not ade- equal number representing employees in quately represented, fully advanced and occupation, and of than not more protected. persons public. three representing the complain

Petitioners next of Board participation member Beavers’ in the revi “occupation” The term is defined MWO-10, sion of contending through Act, as 36-402(6), pro out the Board’s consideration “ any occupation group . . . . revision, posed possessed Mr. Beavers was occupations or industries ... disqualifying of a conflict of interest employees gainfully employed.” which are purposes (1962). of 18 U.S.C. 208 But simply, therefore, Put the substance Mississippi Valley in United v. Gen States requirement statutory this case was 520, 548, erating Co., 364 U.S. 81 S.Ct. rep three committee must members Supreme 5 (1961), 268 L.Ed.2d employers occupa group resent Court, approval citing United States proposed tions affected revision Foundation, Chemical 272 47 v. U.S. MWO-10, e., “Hotel, i. Restaurant crys (1926), S.Ct. 71 L.Ed. 131 made it Occupations.” Allied See Andree & Seed tal clear: man Divi Administrator of W. & H. v. Etc., sion, App.D.C. 240, purpose F.2d The obvious the statute honesty in the Government’s (1941). insure sought rep- result In this case the dealings by preventing federal

business employers was a agents who interests adverse to resentative have price their enter- advancing rate would not those of the Government prise by rendering them expense of business own out interests at sought noncompetitive while that public welfare. representative was liv- Accord, Bank of Chi Exchange National job security. result ing wage and Abramson, F.Supp. cago (D. sought representative by the 1969). Minn. congressional consistent with the one “Findings expressed mandate Specifically, petitioners complain what viz., Policy”, Declaration of the accom- Beavers, employee that Mr. plishment of a rate “sufficient Board, also representative provide adequate pro- and to maintenance Cooks, Pantry and Agent for the Business and, course, provide tect an health” of Union, Employees and Kitchen Local inducement to work. a Executive was also member of Joint therefore, is, Employees inescapable Board of Hotel and Restaurant The fact Union, expected and Bartenders International two members Board Washington, partisan interest of em- (one AFL-CIO of D.C.18 ployees and the other in the interest of quasi-judicial proceed- this had been a If statutory employers).19 Such has been a ing and it were shown that member of scheme since the District of Columbia proceeding had conducting Wage Law first enacted.20 Minimum was interlocking employment, such as that Moreover, above, pointed out Beavers, possessed by member we Board very tripartite for, as nature of a tribunal But reverse out of hand. would out, points Professor Davis proceeding. a adjudicative not an It was frankly are members two proceeding quasi-legislative character partial partisan, only the third or and tripartite a board. Because conducted theory impartial is in in fact member tripartite the nature of a board and of partisan members are neutral. function, the of interest representatives parties employ sometimes even in the of interplay negotiate groups involved can Davis, on . each . Ad- side. . [K. acceptable major- achieve a to a result Treatise, Bias 12.03 ministrative Law ity of the means Board. What emphasis supplied.] (1958); 157 procedure viewpoint is that the of terms of represented Lines, sector will not be ob- each Air In Arnold v. United States spokesman. Inc., lack scured for 1961), of Cir. (7th 296 F.2d 195 appointed revealing among 18.Board Beavers was not member the mem- For a discussion purpose proceeding. concerning is a for the of this He Beav- the ad hoc committee bers of permanent Board, having interest, pages 298, alleged been member of the ers’ see conflict of appointed employee representative pursuant supra. Reorganization No. Order Minimum joined Mr. Beavers and Mr. Austin Board, Safety Wage and as amend- Industrial representative (the H. of Mrs. Sarah Newman ed, Appendix Title I of D.G.Code public) unanimously approving MWO- I, which Part reads: 72.1. A. There is ... a Mini- established Safety and Industrial Board mum Pub.L.No.89-684, Stat. See ap- consisting who of three members shall be (Sept. 19, 1918, 960), “An entitled Stat. pointed far as [Commissioner]. As protect health and morals Act to lives practicable, shall chosen the members be so in the of and minor District women workers representative employees, will of that one Columbia, of and to establish Minimum rep- representative employers, one one powers duties, Wage Board, and define its resenting public. . provide fixing and to pur- B. The term member of office each workers, for other for such years. poses.” Board shall be three . court, biparti- examined commenting We have the authorities relied on essential Board”, upon by petitioners support in “System vig- a tri- san nature of the tribunal, qualifications partite dis- orous assault on the established to arbitrate find putes carriers and their em- member Beavers and them in- between air apposite. exception, the ployees, said: Almost without subject of concern in those cases was legal Members of such boards are not qualifications officer, of an administrative contemplation, fact, supposed or in to be functioning quasi-judicial capacity, And, pro- neutral . . . arbitrators. who, personal, private because of designation vision is made for “neu- pecuniary sometime beneficial—if —in- person” tral ... in event dead- terest in the outcome of controversy, bipartisan lock. board is rather possessed found to be a disqualify- impartial than disinterested. conflict None of such cas- interest. represent- . The chairman awas es, however, challenge involved a participation ative United. His qualifications any tripar- member of a United’s . him no behalf made tite special tribunal selected because of his partial per- less than more or other subject interest See and matter. son identified with interest United’s compare Board Ed. v. International U. disquali- would have been. It was not a Op. Eng., Loc. No. N.J.Super. fication. 116, 262 (1970). A.2d 426 While neither employee employer nor bias Young of a Neale, In member (Ky. v. 457 358 S.W.2d tripartite of a tribunal has been considered 1970), arising a case an administra a disqualifying interest, it has tive been held proceeding prevailing wage to fix the respect otherwise with to the public proj rates for the construction of See, ects, neutral member contended, of such petitioners it was tribunal. do the connection, Ramberg, bar, Thomas process” the case at v. “due was Minn. (1955). denied when no N.W.2d opportunity was afforded interrogate to a of member great Petitioners attach significance to respect prejudice Board with his or bias. to presence Board member Beavers’ par- In disposing contention, of the the Court ticipation meetings at of the committee. Appeals Kentucky, of of distinguishing They say nothing, however, in regard to involving case the trial on of teacher Board presence member par- Austin’s charges misconduct, of said at 362: ticipation meetings. per- at such It would proceedings before the Board haps have been an exercise judg- of better present case do not constitute a trial ment if both Board members Beavers addition, that nature. In the Board Austin had elected avoid attendance at members are selected the basis of any of the meetings of the committee. But Ap- subject interest in the matter. we Act, have nothing found in the parently, it was the determination amended, in Reorganization Order No. legislature varying interests prohibited which such attendance. other, would counterbalance each respect With participation such does not Mr. constitute dis- qualification. inquiry an Therefore Beavers the deliberations commit- respect the Board members with to their tee, appears all that from the record segment favorable interest in the of soci- that, at meeting, the first he made a com- ety they represent were chosen to was ment in clarification of a statement improper. irrelevant and committee; that, member at the meeting, second he made two comments Son, also See Abbott & Inc. Holder J. which in man, little, our were N.J.Super. any, view if 133 A.2d 705 (1957). consequence. staff, had an cost of annual three Board’s Austin attended member

Board $4,991.18. two and made meetings the committee meeting. It the second comments at brief major issue this was Because further appear that there does not careful to note proceeding the Board was meetings committee participation inadequacies employer Austin, or Mr. Mr. by either Beavers or choosing to instead use submission.22 regard- of the committee members budget by its own staff ar prepared spectators. them than as interested ed other employed that an rive at conclusion reason be said with Certainly, it cannot requires a of at least person presence very of Mr. Beavers that the mainte provide adequate hour in order to com- prejudicial since the function protect health, and to the Board nance inquire and than to do no more mittee was important explain likewise felt it Board report recommendations think that the Board’s conclusion.23 We Austin and Mr. which both Beavers Mr. supported by the evidence and finding members. will has a rational basis and therefore on review. finally that disturbed contend Petitioners findings21 upon Board based its support in sub were without

MWO-72.1 Petitioners contend also that while of the ad in the whole stantial evidence accurately determined the ministrative record. wages paid Washington amount employers by fair

metropolitan region comparable character regard to the issue of like or work With provide ade looking regional wage reports, amount of sufficient health, impermissibly used that same data quate protect maintenance budgets. basic and reasonable value the Board had before two find fair thereby made first, employer performed, mem work submitted e., committee, same, in annual the i. finding had an cost that the two were ber the second, by an Peti- $3,373. prepared range the to hour. The the $2.06 $1.90 expenditure budget daily requires (1) employed person food a lower That an inadequate. wage pro- The basis $1.30 an in is $1.20 of at least hour order to to $2.40 expenditures ; adequate protect in this lower and health for budget other vide maintenance (2) finds and reasonable value of is The Board the fair not documented. That by budget unacceptable performed suffi- as not the work affected the lower workers range provide adequate in and $2.06 is to cient to maintenance $1.90 MWO-10 , hour; protect and to health. wages paid Washing- in the That part: explanation 23.That stated Metropolitan employers fair for ton area budget pre- person The pared for whom this comparable like is in work of character years age, is is and 30 between range an hour. $1.90 $2.06 self-supporting, dependents, and has lives no away purchased explanation Except : 22. The for was as follows alone. lunches days expenditure week, meals are $291 The for food is home five a annual from budget person provided prepared prepared less than by at home. uses The (Exhibit 61). explana- transportation, $1,000 has insurance the staff No. An life tory budget policy, vacation, lower con- takes a and saves for medi- attachment emergencies. living sample ex- The tains two planation menus. There is no cal and other expenditures provide for standard is one the lower used sufficient clothing adequate housing, upkeep, pro- other minimum maintenance and to expenses. expenditure budget living The The annual food does tect health. cost of away provide $4,991.48 ($4,000.88 not for to be eaten is for the cost com- lunches home, budget plus for whereas the staff does modities services $990.60 taxes). provision weekly equivalent $95.99 make When an em- is cost. ployer plus taxes). ($76.94 In deter- furnishes meal hourly employer permitted mining equivalent, $2.40, is take allowance wage thereby reducing from the minimum used a 40-hour workweek since this Board employees’ wage. working people. cash finds standard most Board

3U ply Congress assert that had intended to this review. we are satisfied tioners Once met, wages paid as standards been re- the Board to consider actual these have our because, fair val- an indicator of the and reasonable is at an end view function pointed Son, have out in performed of work it Abbott & ue would Inc. v. J. Holderman, separate supra, made this a criterion for consider- 133 A.2d 712: process. It strikes us ation the revision proper constitutes a [W]'hat paid of ob- that the “are amount of viewpoint wage varies with importance to the consideration vious finder, and very with that matter in con- least minimal determination of at values templation, Legislature constituted the Plaza Application of services.” Wells especially board with an construct- Corp., 10 A.D.2d 198 N.Y.S.2d composite ed viewpoint. The courts 328, aff’d, 975, 204 8 N.Y.2d N.Y.S.2d merely therefore not lend to board’s Abbott & (1960). 169 N.E.2d See J. report presumption of reasonableness Sons, Holderman, N.J.Super. Inc. validity; only but much reluc- see (1957). 133 A.2d no 712-713 We tance and where there abuse manifest significance in the fact that the two real they would set fixed aside separate are in the statute and can criteria board, because of the excessiveness or find fault with the Board’s therefore no inadequacy of the amount. make use of the same basic evidence findings under both. nevertheless, complain, Petitioners in arriving at its conclusion Our review reveals that the improperly gave greater weight to the first arbitrary order of the was not three statutory spelled criteria out capricious (D.C.Code Act.25 Reasoning to its basic find (3)(A)) findings supported and its are ing and conclusion, the Board said: (D.C.Code substantial evidence re- 1-1510(3)(E),24 being these two giving weight the three criteria ap- view standards in the D.C. APA which the Board considers the intent of Con- applied (2d 1973), We have “substantial evi Cir. the “two criteria do tend quasi-legislative converge” ; “[cjommentators dence” test sug to this rulemak- have ing proceeding (a) gested imagine because is a review it is difficult (§ 1-1510(3) (E)), having standard in the APA D.C. decision no substantial evidence to (b) support and previously ‘arbitrary’, the “substantial evidence” test was it which is not a deci organic required arbitrary test sion struck down as which is ” 1967, supported by act of the See § Board. D.C.Code 36- fact ‘substantial evidence’ and 409(a). significance See also Allentuck of v. District “the true of the substantial evi supra. Bd., limiting agency Columbia & I. Min. W. Safe. dence rule is in the requirement This latter under was omitted confines of City the record”. See also Chicago, C., the District of Act Columbia Court Reform of F. P. Illinois v. 147 U.S. (D.C.Code 36-409(a)) 1973, App.D.C. 312, 319-326, 731, and of 1970 § F.2d 458 738-745 requirement (1971), denied, 1074, review the that “[t]he became cert. 405 U.S. 92 S.Ct. governed by 1495, 808, (1972); shall be the District of Columbia L.Ed.2d 31 1974 Automo (D.C.Code 1973, Boyd, Administrative Procedure Act & tive Parts Accessories Ass’n v. 132 case, 1-1501-1-1510).” U.S.App.D.C. 200, 330, 204-207, In §§ this unusual 407 F.2d therefore, applied (1968), we have the review two 334-337 where the court deals with draftsmanship relating standards. in defects to in review might say, passing, application rulemaking proceeding. We in may the two standards seem at first glance (e) notions to be at odds with traditional : 36-406 pro rulemaking quasi-legislative (1) wages of review of ceedings, . . . the amount suffi- provide adequate test to as the “substantial evidence” cient maintenance and normally applied only trial-type protect health, (2) has adjudication been to to fair the and reason- rulemaking. agree performed, able value of the But we work Judge Friendly, speaking wages paid Washington the court in the metro- N.Y.S., politan region by employers in Associated Indus. of Inc. v. United fair for work L., Dept. comparable F.2d States 487 of like or character. 312 rapidly as gress . ^[36] . in policy . (a) Section Act practicable the Act [D.C.Code (b) 1(a) ] that it to eliminate to correct is declared (b) of the and as 37- to tive be to exercise sey substitute given State judgment in Hotel-Motel irresponsibility its three judgment. to the relative criteria, it would be an Ass’n v. See Male, 105 this court New weight Jer- to A.2d N.J.Super. provide

payment insufficient to wages must foregoing, it all of the protect (1969). From adequate maintenance and to of the Board order follow health. Affirmed. Board finds order to correct REILLY, : Judge (dissenting) Chief 1(a) of the set forth Section abuses great- give necessary increasing . Act it is to . order upholding In hotel, wages to suffi- weight er amount of minimum rate provide adequate restaurant, employees, maintenance apartment cient to from my protect other two $2.25, opinion to health than the majority $1.60 —in statutorily prescribed Accord- criteria. D.C. Mini- written out of the view—has finds the Board that minimum 36- ingly, (D.C.Code Act mum §§ will explicit provision depriv- an hour effectuate 36-419) 401 to purposes any authority . Act without whatsoever hardship businesses causing statutory economic in this floor raise industry. disposi- District of Columbia. As I such provision deem case, chal- tive of the I would set aside the Mills, Opp In Cotton Inc. v. Administra- lenged its ground order on the issuance tor, 524, 533, 312 U.S. S.Ct. jurisdiction, beyond scope of Supreme said (1940), Court L.Ed. unnecessary pass upon making thus set regard to three similar forth criteria petitioners’ other contentions. in the Fair Labor Act: Standards colleagues majority my As the dis- Congress accepts fact that ad- agreed statutory is- me on basic judgment as ministrative relative sue, they necessary examine such found it factors in weights given these contentions. were directed several These judgment each when that other case compatible procedural irregularities not respects is pre- arrived at in the manner Procedure Act with the Administrative statute, at- scribed instead of part interest on the serious conflict of tempting impossible by prescribing partici- one three Board members weight relative all advance for the final or- pating proceedings and cases, is no more abandonment objections, the all der. these rejecting legislative Congress than when function majority placed has a construc- so narrow upon accepts legislatively and acts upon tion Administrative Procedure experts as to social econom- advice immunity proce- Act that from virtual re-examining ic conditions without safeguards judicial dural over- upon itself the data that advice sight has been of fundamental fairness based. granted I Wage the Board. Minimum at regard such the Act construction of record, agreement with' On this this prior odds decisions of court. the and its conclusion is Board’s rationale Accordingly, to dissent I am constrained compelled. wage A minimum sufficient on the following grounds: provide maintenance and to adequate protect very health is the substance I Son, statutory command. Abbott & Inc. J. Industry Holderman, the Thus, The Exclusion Congress Statutory v. the supra. Wage Orders. the Board administra- having committed to from

313 ployers (a) Wording respect wage the Act. Prior to payments— the date of effective the District of Colum- makes this clear: 15, bia Wage Minimum Act of October Except as otherwise (a)(1) Sec. 3. 1973, (D.C.Code 1966 36-401 to 36- §§ provided every paragraph em- (2), 419 inch), the statute for mini- providing ployer pay employees to each of his shall wage regulation mum in this jurisdiction— each (A)the established wage by 1918 enactment invalidated 1923 a wage order issued under employee Supreme Hospital Court Children’s Act, following this wages at the (B) Adkins, 394, 525, 261 U.S. S.Ct. 67 rates: by L.Ed. 785 and resuscitated later years Parrish, 379, West Coast Hotel v. 300 U.S. not less than an hour dur- (i) $1.25 57 S.Ct. (1937) L.Ed. 703 ing year beginning February —covered only women and Under this children. earlier statute, agency authorized (ii) less not than an hour dur- $1.40 to set different particular minima for oc- ing year February beginning cupations. authority, wage Pursuant to this 1968, and time, orders were issued from time to each bearing different number for the occu- (iii) less than an not hour $1.60 pational group applied, g., to which it e. thereafter, whichever is higher. laundresses, hairdressers, clericals, office workers, hospital etc. In there was (2) Every employer pay shall to each issued Minimum No. re- Order wage of his rates are whose quiring payment than of not less $1.10 governed Minimum by Wage Order Restaurant, an “Hotel, hour in and Allied (effective August Numbered Occupations.” occupa- This same is the 1964), as revised under subsection (c)(2) tional group involved here. section, following this rates: by This scrapped old statute was the en- act, actment inter alia which not less than dur- (A) hour $1.25 employees, well

covered male as as female ing year August beginning standards, set certain maximum work week less than hour dur- (B) and specific statutory wage beginning floors August 1, year particular beginning respects, years. these new act scheme of the general followed

cognate statute, federal Fair Labor less an hour (C) not than $1.60 Act, wage hour Standards (Italics supplied.) thereafter. by set Congress standards are rather than by an agency. words, (petition- Unlike the employers administrative In other Act, however, (a) Federal the new local law here) ers for to whom review permitted exempted determinations of applies by paragraph administrative statutory wages higher than the contingent imposed obligation from the by technique issuing minima upon employers preceding covered however, industry group, orders. One than paragraph paying wages higher exempt general requirement specified some future minima reason of setting a level complying with orders at a I am therefore loss order. statutory of wages designated above my reached the colleagues understand how minima, viz., very group covered intended was Congress conclusion that all period order into issue case. months the delay drawn “to six for a wage application the new minimum key which 3(a), section § Act1 — by employees rates to affected MWO-10.” obligations em- states the of covered basic 1973, 36-403(a). § 1. (including in appears was the statute Congressional objec

If this the sole elsewhere tive, agency re- provisions respecting why paragraph A of was clause § orders, wage determina- wage vision of administrative (a)(1) referring and the phrase tions), history ascer- significant legislative is resort to higher,” “whichever es- tain under well subparagraph (a) (1) (iii) completely meaning in is irrelevant statutory construction. from set tablished canons of requirement omitted forth for at- majority have employees para hotel and in But inasmuch as the restaurant ex- (a) (2) making tempted ? with graph By effective to buttress their view and the accelerating statutory cerpts reports dates minima from the committee applicable debate, employers a brief on these MWO-IO effective Senate comment dates, appropriate. August February on rather than matters seems Congress grant employers did indeed put perspective, To matter it into delay six-month three each during that should be noted years such rates were to become effective. Dis- first Congress, of the 89th session compliance But since reference to with trict of Committee of House Columbia wage appear para orders does not entirely dif- holding hearings after on two wage graph prescribing different condi bills, ferent H.R. 648 and H.R. industry, for the tions hotel and restaurant law, re- wage amending the local minimum apparent reprieve it is six-month ported the 1918 out a set of amendments to only Congressional objec one was print”, Act “clean One of in a H.R. 8126. respect industry.2 tives with to this provided these numerous amendments employees occupations already covered provisions Nor do the 36-406 relied of § paid by wage should be orders upon by majority support theory. not less than hour on the effective $1.15 authority upward “wage to revise Act, $1.25, date and less than within a wage rate order” after has been 3, September regard 1966. With beginning applies a year clearly only effect for order, yet by occupations not as covered occupations to wage which such orders are $1.00, the bill set minimum rates $1.15 applicable' occupations in hotels and —not 3, 1967). September (beginning $1.25 restaurants, only obligation where correspond- separate provision A made employers by (a) (2) reason of § by employees minima for covered wage conform rates set by statute MWO-10, August on $1.15 wage in contradistinction to orders. August on 1968.3 $1.25 Legislative (b) History. As the text is clear 36-403(a)(l) (2) and unam- in- provision not this Whether or biguous nothing and as inconsistent with it possibility wages tended foreclose the agree Congressional objective 2. I respects another order women. all other such employers MWO-IO revision of in full and effect until shall remain force compensation outstanding overtime rates in the August time such order wage matter, however, Board, order. This dealt without shall be modified 3(b) (2) procedure wage a different conference hear- subsection — —and Congress ing; date, it was this mandate of which occa- effective on such in accordance original MAVO-IO, (1) (2) (4) paragraph sioned the revision of the clauses e., August i. subsection, except the new order effective of this the minimum majority opinion to which the refers. rate shall not be than $1.15 less beginning date, hour on such and not less Excerpt 9(a) beginning August 15, of H.R. 89th than an hour Cong., (1965) August 15, 1967, 1st : Sess. Effective by wage pro- Minimum Order Numbered shall establish conference August 15, 1964, public hearing effective shall be modified re- and without cedure Board, gard (c) without conference to subsection the overtime procedure public hearing, effective rates for the covered such or- the effective date of amendments made der. Act, apply to men well as industry in the being industry hotel restaurant No. 10 or Order the covered to thereby. history raised agency Accordingly, action these new above the clear, statutory particular not bill altogether rates is Senate on this issue is mean- passed by ingless, bill as did for in not conference several months House completely repeal procedures completely later again con- H.R. 8126 was re- (H.Rep.No. 2175, Cong., ferences and Board in written 89th 2d orders embodied §§ 11 and existing (1966)). the Sess. Act. Neither House bill nor the reference in com- It inwas that the language conference report mittee (H.R.Rep. to subsection now 36-403(a)(l) codified (2) § 522) question. No. deals was first written.4 The conference bill majority really upon in

What relies adopted was then in both houses without history legislative account of the are explanation the floor either chamber changes in made when it H.R. 8126 by managers of the legislation with re- There, reached the the committee Senate. spect compromise on MWO-10. (S.Rep. struck out entire House bill original House bill contained no paragraph, page 1) report- No. 3d provision periodic readjust- review and ed out a wholly new measure in nature ment of wage appears orders which now in of a substitute for the It was 1918 Act. 36-406. This was taken from the Senate § from agency authority 5 of that bill that § Thus, nothing there is cryptic bill. in the orders revise in for one effect report language of the House con- year provision is derived—the even- which managers supports ference opin- tually Act, 36-406 became cit- the new ion. It should be noted that even this ref- majority ed justify the chal- report erence House conference is lenged revising action the Board in inaccurate, somewhat as the escalated stat- higher MWO-10 to a rate set than utory wage in rates the conference substi- statutory minimum. The managers higher tute were than those the House bill, majority opinion Senate as the makes or Senate bills providing for an- plain, successive successfully only resisted efforts nual minima MWO-10, excess of old give special treatment to the hotel and $1.25, $1.40, $1.60, compared industry, proposed $1.- restaurant but also a 15 and in the first (§ $1.25 House version preventing wage amendment orders from H.R. 9(c)(2), 8126). exceeding statutory readily floor. I concede if the Senate bill had been en- discrepancy The reason for this is that law, acted into been the Board would have during the elapsed several months that be- statutory authority vested with do what passage tween the of the Senate substitute it did in this case. and the date the conference bill was enact- “shedding brighter (October 1966), Congress pass- Far from ed had aspect controversy”, comprehensive light on this ed set of amendments to however, totally history (Act irrel- the Fair Labor Standards Act Senate which, September alia, evant to the issue. The text inter 1966) Senate give (1) raised the for previously bill did not hotel and restaurant employees industry $1.60, even a short moratorium from covered general provisions prior plenary removed the respecting wages exemption fact, maximum weeks. con- for hotel and restaurant work —miti- however, permit- gating coverage, tained no reference whatsoever to high- Cong., Cong. unequivocal Sess., words “whichever 2cl 1966 U.S.Code 89th Admin.News, pp. er” orders 981-987. reference (a) contrasting (1) and word “thereafter” (b) appeared substi- first the conference stitute. major objections ting newly employers “catch raised covered to One of the up” five-year period by petitioners a refusal paying was the of the Board to over $1.- second, safeguards year, procedural first of conform to $1.15 $1.30 Act, fourth, third, and there- Administrative Procedure D.C. $1.60 $1.45 seq., particular- et the ac- 1-1501 after. There can be no doubt that provisions which, in- respect by Congress ly tion taken to of Section alia, of newly industry require agency lev- ter in its notice covered at the national impact managers hearing provide opportunity present to el had its on the to issues, bill, to why they argument and is raised their evidence and on all D.C. sights parties in a new statuto- conduct cross-exami- setting permit above to $1.25 nation, upon findings each ry when was revised make of fact floor the local bill to explains fact, It the fact to base conference. also contested issue of and reliable, employers in the hardship findings with the cited “in accordance industry readjust- They hotel and and substantial evidence.” probative restaurant up national ing pay argue scales to catch of the Board’s failure that because Act, they decided that the conferees this section of standard conform industry, the eventual by— should be aggrieved $1.60 the national highest minimum under both employ- (1) Imposition of conditions and local amendments. concerning wage order ment in the final in the notice matters not mentioned in- very It be that from the should noted hearing, thereby petitioners depriving ception wage-hour legislation, of national issues. opportunity to heard on such Congress displayed considerable reluctance and impose on hotels upon reliance (2) Introduction of Fair Labor original restaurants. In the living relating to documentary exhibits Act and restau- Standards hotels opportunity cross-examine. costs without of a broad ex- rants were excluded because emption service for “local retail and local hearsay of such material The use exemption was establishments.” When necessary support finding was away taken from the bulk of the retail adequate provide single employee industry amendments to service protection in viola- maintenance health Act, excep- Congress specific wrote requirement findings that such tion of the and restau- employers hotels tion for evi- reliable substantial based on persisted amend- rants until countervailing in disregard dence coverage applied then, the Even ments. finding evidence, failing “to make thus five-year subject gradual exten- to a fact.” on each issue of contested exclusion, when long In view this sion. any evidence what- (4) The absence of Act Congress in the Federal 1966 extended support finding that the fair soever to industry, is to this understandable work and reasonable value con- Act revising the District Columbia range of spe- hour. temporaneously Congress decided that $1.90 $2.06 similar treatment hotel cial and Majority Opinion, (b) Contrary to the employees was also called restaurant Subject Proceedings Were the local statute. Procedure Act. Administrative II deny allega- these The Board does not unfairness. It de- tions of administrative the Ad- Erroneous Construction proceedings, how- fends its conduct Act. ministrative Procedure ever, theory that a mini- startling on the not a “contest- Procedural mum determination is (a) Board’s Denial consequently ed case” Safeguards. funda- deprive petitioners rule-making proceedings, For both free to safeguards provided Procedure Act and the mental Administrative arbitrary District of against agency action. What Columbia Administrative Act, acceptance startling is the Procedure effective even more October majority opinion. proposition require findings this of fact and —a holding in the face of a adhere view which flies conclusions law stand- issue, applicable adjudicato- precise agency Allen- ards to the of this court on the ry process. apply Minimum District of Columbia these standards tuck v. We Board, Safety Wage Wage findings and Industrial D.C. Board’s and conclu- ra- all inter- App., (1969). A.2d 832 sions these cases. We think 261 parties know, a majority tionale of the is that there is ested are entitled to and know, and rule- this adjudication distinction between court on review must the ba- making, legislative quasi-legis- termed Wage a sis and for the Board’s reasons body. (Footnotes omitted.) lative function of an administrative action. thesis, opinion quotes support In this observation, making this we referred length elementary at from an hornbook on specifically to l-1509(c).8 As none of § law, a administrative decision6 of provisions applicable 1-1509is ex- § Appeals for Court of this

United States cept cases, in “contested” this was obvious- prior circuit of the made to the enactment ly holding wage proceed- that a minimum Act, local Administrative Procedure ing fell within this category. peti- Hence citation to another circuit decision affirm- assumption tioners’ the Board was ing an order of the Aeronautics Civil “engaged in the conduct of a contested Board.7 supported case” by holding considered quite I respect am aware of the difference be- this very court to that agency. rule-making adjudication, tween but majority

what overlooks is that Although majority opinion does not rule-making kind of a mini- involved in purport Allentuck, to overrule plain it is wage specifi- mum has been determination so, that it does rejects because the Allen- cally held both our circuit court 1-1509, tuck thesis that being applicable require procedural court safe- minimum proceedings, requires guards prescribed adjudicatory pro- Compa- ceedings, Baldor Electric findings Wirtz v. sup- of fact “be ny, U.S.App.D.C. 119 337 F.2d ported reliable, by . probative, and Allentuck, (1964), supra 521 n. 4 substantial findings evidence.” How such case, 261 A.2d at 832. In the latter we possibly can be made in the absence of an said: evidentiary hearing escapes me.9 Columbia, U.S.App. Jones District of 116 sought ferent issues and to reinforce (1963). F.2d respective D.C. presenting contentions docu- (exhibits) ments of dubious relevance —some Airlines, B., 7. American Inc. v. C. A. 123 U. transcript hearing —and the on the (1966). S.App.D.C. 359 F.2d 624 majority concedes, recommendations. As the evidentiary hearing the latter was not at 8. Allentuck v. Min. W. District of Columbia all but rather forum casual Bd., D.C.App., n. & I. A.2d Safe. passerby orally could submit his views or in (1969). writing. Many opinion givers repre- obliga- sented no one whose stage proceedings At no these was testi- proposed tions were to be affected mony taken. What Board counsel character- wage order, pf pro- and almost none those argument ized in con- oral “record” fessing proposed enthusiasm for the order ad- transcript sists of a conference potential unemploy- verted to its for increased which various members of the ad hoc com- mittee, up union, higher public, prices. made ment indus- try representatives, argued and on dif- voted hearing make certain majority opinion upon agency after also relies precedent to procedural findings fact as a condition provisions certain of the Mini determination, proceed itself, particularly mum Act 36- ultimate a contest ings Act fall the definition of to bolster its conclusion within legisla to a contemplate evidentiary full ed did not case contradistinction evidentiary hearing predicated tive right, with the of cross-examina action not on broad findings Conceivably might have but considerations tion. been aof policy.10 Obviously the prior subsequent determination situation enactment hourly wage is a form rate of the local Administrative Procedure Act. Mini consistently “rate-making” But as we have held until must—under to guided by preliminary procedures Wage Act—be day, agency which do not com mum superseded. findings respect to the three ply the have fact with with APA been majority opinion con Unemployment criteria the v. District Com which Wallace (e) “spelled out” in pensation Board, D.C.App., 289 885 cedes are A.2d ; Nursery wording The of Section (1972) Woodridge v. statute. School Jes Thus, petitioners sup, D.C.App., (1970). 1509(b) of the APA on 269 A.2d 199 which rely crystal section proceeding it clear that this particular the test of whether a makes applies rule-making— is agency a “con of the to before administrative Code depends upon wording the tested case” (b) . . the In contested cases . APA, organic creating the not the act the have proponent a rule shall order agency. proof. (Italics the . . . burden Moreover, supplied.) the narrow construction placed on the Administrative Procedure determination, In failure particular majority Act the cannot reconciled pro the statutory Board to accord their Capital Hill with our decision in Restora- opponents proposed rights cedural to of the Commission, D.C.App., v. Zoning tion Soc. rule—a rate increase minimum the 40% petitioners 101 which did (1972), 287 A.2d —was the technicality falling no mere under There, the rejected we notion that cite. inflationary head of harmless error. The syn- always the term case” was “contested largely nature of the order was due onymous quoting the “adjudication” finding respect to the rate of on Laws to Commissioners Uniform State “necessary provide adequate mainte effect that under “. . . the Model solely protect nance based and to health” apply Act it is desired contested case documentary (No. 61) on a called exhibit procedures rate-making”. (287 A.2d Employed Living Budget “Cost of 101, 104). ey apparent Living Person Alone”—a sun ly prepared by oral went on that if the statute the Board itself. No

We to hold testimony the basic regulation authorizing rule-making was received to show requires given years citing ago Georgetown, 10. In of the admonition Citizens Ass’n of some Supreme Washington, D.C.App., Inc. v. administrative A.2d 699 Court another body: (1972), controlling Capitol as rather than Bill, supra, majority apparently . . It is sufficient for this ease over- although distinction, not been com- looked this observe that has court Georgetown length policies explain missioned to effectuate went to some may single-mindedly it it. . Act so ignore important wholly equally other and objectives. adopted Congressional Frequently proposed 11. The Board members scope in the a then current entire accommodation rule face of national policy statutory another, and it under Act of one scheme to the Price Stabilization disapproving collectively bargained wage is not too much to demand of an adminis- even percent. body it ac- increases excess of six trative undertake Subse- quently emphasis Living commodation without excessive Cost of Council reduced challenged upon its immediate task. S.S. [Southern order from $1.90. (This subsequently rescinded.) B., limitation Co. N. L. R. v. U.S. S.Ct. totally (1942).] Apparently Board was unmindful 86 L.Ed. joint question underlying information. Union. board in is sources representative employees Thus, bargaining any opportunity for cross-examina negotiates Baldor the downtown hotels and tion was foreclosed. Wirtz multiemployer supra, where the Secre behalf contracts with Company, Electric setting hotel a statisti local association tary finding on of Labor based employment disclosing sources scales and conditions of cal exhibit without occupations the various thereun- or the data covered figures raw der, waiters, bartenders, reviewing including compiled, culinary court the table was chambermaids, bellmen, workers, porters because set aside the determination prevented side he procedure office local which other clericals. sup manages agent prin- also the calling cross-examining business cipal pliers court union for kitchen of the basic information. The hear restaurants parties in a numerous in this area. From held that standpoint office, statutory right such the union have a to “conduct tenure of thereto, may required salary perquisites for a cross-examination attached apparent full and of the facts.”12 Member had a true disclosure Beavers personal from substantial quoted language was taken stake in outcome While any wage 7(c) proce'eding affecting Section the Federal Administrative hotels Act, very these also and restaurants. Procedure words are Moreover, 1509(b). used § 1— object An all of administrative law re- Board’s of its notice omission legislation, form including 1—ISOlff. of hearing place of its new and intention to D.C.Code, subject to searching to regulations amended definitions and in its light judicial scrutiny any of conduct on Wage revised its final Order No. 10 made part anof official or member staff of fatally 1-1505(a), order defective under § an administrative compro- tribunal which petitioners oppor given were never integrity mises the decisions. tunity themselves, to re address let alone As a result of the Board’s refusal in ad- but, the propriety of such revisions. vance hearing grant procedural to rights 1-1509(b) parties appearing to Ill hearing,13 petitioners argue that The Interest on Part they deprived opportunity of an Conflict Agency. One Member prove grounds all demanding the dis- qualification of Member Beavers and objections One of the most serious thereby establish factual record to enable by petitioners order raised relates to this court to review the issue. part an asserted conflict of interest on the Board, of one of three members of the say Petitioners that if had they been al- Beavers, Joseph major- A. identified in the lowed develop they the facts could have ity opinion Cooks, agent business of the that shown Mr. Beavers engineered the ul- Union, Pantry Employees and Kitchen Lo- They timate point partici- outcome. to his cal pation execu- joint a member of the in the preliminary decision to revise tive board of the Hotel and that wage Restaurant order applying primarily to oc- Employees cupations and Bartenders International his constituency, own his supra depositions Company, support 12. Wirtz v. Baldor Electric take its efforts for dis- U.S.App.D.C. qualification. 129-130, opposed deposi- at 119 F.2d at The asserting tions, hearing that the scheduled part was not of a The trial “contested case”. order, pass question. issuance court Prior of the final did on this It de- enjoin injunctive petitioners relief, holding one of the in a nied that suit the ab- participation proceedings order, prema- further sence of a final suit Newman, Beavers, Dotnick, Member Inc. v. ture. al., (Super.Ct. 1460-72), et moved to No. only colleagues of his from people directly helped by selection of The joint employee representatives proposed legislation may board as the are what on the ad which recom- working poor hoc committee called the at the who work subsequently adopted by mended the most arduous menial tasks. Board, meetings They attendance at his are not and are members of unions committee, sitting his wage.14 unable to for a decent bargain hearing Board at ignoring the final after short, sponsors even the most liberal request disqualify They also himself. revised Minimum Act say major the final order included envisage did not is as an instrument changes employment in conditions of jack up union levels. vainly attempted had union to obtain majority opinion, apparently recog- grievance from the hotels sessions. petitioners nizing were frustrated There is no material in the record which provide the Board’s own refusal to infor- proves this last allegation, just or discloses mation disqualification relevant to the mo- part played what Mr. Beavers in executive tion, accepted gravamen charges of the sessions of the Board. The record does against Member Beavers but concluded reveal, however, hourly that the proved, that even if aspect pro- rate of set in the challenged order ceedings Briefly was irrelevant. summa- was 15 cents in excess of the minimum reasoning majority rized the contained even the union contract with a pecuniary while interest a member the Hotel Association. As this contract quasi-judicial body in the outcome of a expire was to a few after months the hear- case on ground which he sits is ind'éed a petitioners ing, assert the resultant disqualification, tripartite tribunal is wage order was calculated to accord the exception. opinion cites a Ken- joint board a strategic considerable advan- case, Neale, tucky 358 Young v. 457 S.W.2d tage in projected negotiations the as it de- (1970), pre- holding that where a statute wage mands for a increase would start not scribes that an administrative board shall the $2.25, contract floor but from composed persons of representing desig- thereby pressure increasing the propor- interests, nated economic social an in- tionately higher wages in occupations all quiry respecting the favorable bias of a above the lowest level. segment society Board the of member to he represent improper, was selected to is as upward Whether or not challenged legislature had determined that wage revision product was indeed the varying interests would counterbalance such a strategem part on the of Member each other. Beavers, record, on this state can only speculation. be a applying matter of In rational The inex- decision fact, however, case, hypothetical orable min- facts of this the decreed imum substantially majority position higher than the takes the that however corresponding partisan wage union rate the Member Beavers’ role was in the —the Board synonymous challenged found proceedings, with the his conduct was paid by proper expected partisan “fair as employers” he was to be in —renders agency suspect. employees, action scarcely just can interest It Edward Austin, member, reconciled expected with what the it- third Board decision to be partisan self tells objective employers. us was the in the interest of This primary expressly 1966Act— thesis is based the administra- quoted language excerpted Rep.No.864, Cong., (1965), 14. The from a 89th 1st Sess. paragraph (Ex. opinion previously in the Board’s released as noted when the Senate 9) accompanying reported at the revised order. committee out its revision of H.R. turn, paragraph, was taken from S. Wage obviously personal creating Minimum had no tive order economic inter- est in proceedings and was stating: employed any person, by either hurt or practicable, . far as the mem- As by benefited their outcome. chosen that one will be bers shall be so contrast, representatives like the labor repre- representative employees, one board, on the airline Member Beavers is repre- employers, and one sentative of representative the broadest public. senting the meaning of the term. He is an employee opin- passage is a from an quoted Also or officer employee of an organization Lines, Inc., ion, Arnold Air v. United job whose represent full-time is to em- 1961), commenting (7th F.2d Cir. ployees in very industry affected “Sys- upon bipartisan character bargaining MWO-10 collective grievances that arbitrates tem Board” grievance handling. personal His econom- mem- personnel, airline to the effect ic proceedings interest in these is manifest. supposed to be of such bers boards The notion that this interest was counter- A arbitrators. partial rather than neutral balanced participation Member Austin’s opinion more studied examination of preliminary wage conferences, is a world would have that there revealed hearing, and the final decision-making is composition of of difference between the pure theory. Only if one of his counter- mini- “System Board” and our local parts industry, in the g., e. the executive wage board, in Arnold mum for the court secretary of the hotel or restaurant asso- noted that the members of the airline ciation, opposite had been his number on designated representatives of board were the Board could such “counterbalancing” That organizations. carrier labor possible. have been theoretically even composition quite unlike the of the D.C. The record itself demonstrates that Board, where the so-called Minimum actual fact there was no counterbalancing. employer desig- member was neither the Despite expectation partisanship manage- representative nate nor the employers (presumably interest ment organization. those proposed wage affected in- crease) Member Austin was identified fuel attributed Austin Mr. may (Ex. 360). majority opinion, dealer he em- While nothing there is three, ploy two, persons his transcript or more in proceedings disclosing the of business, certainly perceived he is an officer or not that he this to be his role. In agent employer fact, or a organization of an all the indications contrary. are the “representative employers” present of in the sense Although at the ad hoc committee as meeting that he acts an industrial relations when the a recommendation for secretary of a trade director or executive increase was denounced the three 41% rep- job employer regular association whose members as “reckless” be- table, corporations bargaining yond the power industry resent at the to absorb course, 38, may, meet (Ex. unions. He 31) (all against vis-a-vis three voted “repre- requirement statutory being proposal), apparently unsym- he was pathetic mean- employers position. in a narrow sentative” of their Even after lis- term, e., “typical” the hun- tening objections i. further ing of the to their at the operate employers city hearing, joined this who he majority opinion dreds of in the—as In concedes—in retail service establishments. the final not small decision which sense, only earner not any wage individual sustained wage the controversial rec- “re- imposed holding union office could be termed ommendation but additional oner- employees.” upon Mr. employers. Austin ous conditions presentative Reorganization amended, Appendix Order No. Minimum to Title I of D.C.Code Safety Board, Industrial Part I. There, ag- conditions, majority (1949). of these 94 L.Ed. One a imposed by appeared before opinion (see grieved workers had 6), reveals n. including composed employer repre- Mr. Aus- three Members board of two Board tin, sentatives, par- admittedly overruled recommendation in this even neutral case, grant employee representa- ad hoc committee to ticular two 20% e., begin- setting (i. belonging subminimum rate for learners tives to a rival In union. Instead, period. award, 60-day rejected had aside the ners) e., figure (i. to 25 cents grievance, Board reduced this the court noted: “learning” period days. 11%) and the to 30 Adjustment . Even in a National rudimentary As anyone with even the most directly proceeding under stat knowledge wage proceedings of minimum itself, may ac ute the courts look knows, occupations at the bottom adjudica dispute and the tualities of largely newly- scale consist tion of it and will not foreclosed employees, is a among there hired whom assumptions provisions either particularly This is constant turnover. protec complete in agent acts collective industry of the hotel and restaurant true every em rights tion each and occupations usually where such are filled apply ployee. that those views We think help. Wage in rates these classi- casual equal proceeding be force to only directly im- are the ones fications (Italics supplied.) fore us. U.S. [84 mediately by a or- affected App.D.C. 176F.2d 761] Thus, proposed this revision of the der. order, supposed concurred in part The Edwards case is law industry, plainly major champion of jurisdiction. Clearly the Ed- under short, the payroll addition to costs. holding wards Member condonation of premise that record itself refutes the per- Beavers’ conflict of interest cannot had a petitioners Member Austin the assumption mitted undocumented no consequently had friend court and “expected to be Austin was Member complain Bea- ground to about Member of em- partisan ... interest adversary vers’ role. ployers” actual in the absence of showing partisanship. air holdings regard Judicial Board”, “System although Moreover, referred only jurisdic- line this is not helpful majority opinion, really tripartite are recognize tion that even on a They board, stand petitioners’ case. a gen- is a there difference between bipartisan board proposition special that unless a erally partisan point of view and a balanced, fact, just theory but in particular interest in a case. judi composition is not immune from very This distinction was treated case, su Arnold cial examination. In the Op. U. Board of Ed. International pra, losing party was it that was held N.J.Super. Eng., Loc. No. employer by the that aggrieved not fact attorney in which an (1970), A.2d 426 hos represented a member of the tribunal Employment a Public Relations member of stipu interest, subsequent tile in of a view to acted im- was found have Commission that member of “deadlock” between lation properly participating in a determina- by member, both employee whereupon and the a tion Commission which affected of that of from further consideration withdrew represented by his firm. The union law neutral referee designated the case and a court observed: court it to F.2d at hear 195]. [296 from the one distinguished this situation provides It is true that [the statute] Cap Edwards decided for this circuit in members, appointment of seven Airlines, F. U.S.App.D.C. ital representative public of em- two to be ployers, representative public denied, em- 2d cert. S.Ct. two 338 U.S. ployee organizations, repre- “quasi-judicial” and three The use of the term only public. referring adjudicative sentative of the It does not fol- to proceed- an representatives that low thus chosen is novel. Commissioners of adminis- anything agencies, g., are intended to more than trative be e. Interstate Com- representatives Commission, “philosophy” of merce the Federal Communi- respective Commission, etc., sides. A clear distinc- usually cations are re- representa- quasi-judicial tion must be made between ferred They officers. e., point tion a general might surprised view (i. they well to learn that public employers public employees acting are in quasi-judicial or or- a capacity ganizations) advocacy when they involving on sit on a case license behalf special client in a having interest of a but revocation carrier cease act as case being they participate tribunal decided when in a rate-mak- which representative ing proceeding, though degree is member. even impact (Italics supplied.) in a upon A.2d rate determina- [262 429.] tion, desirability and hence guarding majority opinion only fails to against improper private rate maker in- grips decision, come to but gloss- fluences, seem considerably greater. would prohibition es over the clear in 18 U.S.C. § participation by 208 of any District em- To bring home, the matter closer to it ployee concerning a pro- decision appear would that under conflict of in- ceeding which organization he is theory propounded terest majority, serving as an officer has a financial highly improper would be for Member interest.16 This section of makes the Code Beavers to sit colleagues with his on the exception no for officers or Board on minor claim filed his labor organizations special gov- who are union 36-606, under D.C.Code e., per ernment employees. [i. diem] behalf of two or three workers even though controversy might the amount in According the majority, this had “[i]f $100, less than improper but not take an quasi-judicial been proceeding and it part active upward were revision of a shown that a member of the Board wage determination under conducting proceeding had inter- which that union had interest locking employment, possessed such as that neighborhood of several hundred thousand Beavers, Board member would re- we Agreeing pur- dollars. “obvious verse out But this not an hand. ” pose of the statute is adjudicative proceeding. [conflict interest] honesty insure in the Government’s busi- I proposition must confess dealings”, ness I do not embrace notion the conflict applicable of interest act is objectives only that its to of- limited one (ad- kind administrative proceeding ficial “adjudicative” actions labelled judicative) application but has no anoth- “quasi-judicial.” er (rule-making) For one baffles me. itself, thing, making the statute far from I say Judge am authorized distinction, such a judicial refers to “a and Judge join NEBEKER me HARRIS proceeding, application, request other for a dissenting opinion, Judge in this and that ruling or other determination” —terms KERN concurs Parts II and III there- gamut seem to run the full of ad- of. ministrative law. judicial tion, otherwise, prohibits other

16. 18 or U.S.C. proceeding, request employee application, . for a . . rul- officer including Columbia, or other determination ... the District special knowledge, partici- which, employee, [or to his he . [to Government substantially serving pate] personally organization in as a which he is an] trustee, partner employee, through officer, director, or em- Government officer or decision, ployee approval, disapproval, recommen- . . . interest. has financial investiga- dation, rendering supplied.] advice, [Italics

Case Details

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

Court Name: District of Columbia Court of Appeals

Date Published: Mar 27, 1974

Citation: 318 A.2d 294

Docket Number: 6466

Court Abbreviation: D.C.