REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 201
September Term, 1998
___________________________________
GIANT FOOD, INC.
v.
DEPARTMENT OF LABOR, LICENSING AND
REGULATION ET AL.
___________________________________
Eyler,
Bishop, John J.
(Ret., specially assigned),
Fischer, Robert F.
(Ret., specially assigned),
JJ.
____________________________________
Opinion by Fischer, J.
____________________________________
Filed: January 4, 1999
In this appeal, Giant Food, Inc. ("Giant"), the
appellant, challenges a determination by the Board of Appeals of
the Department of Labor, Licensing and Regulation ("the Board of
Appeals" or "the Board"), as affirmed by the Circuit Court for
Montgomery County. The determination permits truck drivers who
engaged in a strike against Giant from December 15, 1996 to
January 18, 1997, as well as other workers who participated in a
sympathy strike, to collect unemployment benefits. Appellees are
the various claimants as well as the Board of Appeals.
FACTS
Giant operates 174 grocery stores in Maryland,
Delaware, Pennsylvania, Virginia, New Jersey, and the District of
Columbia. The stores are supplied primarily by way of Giant's
two warehouse/distribution centers, one located in Landover,
Maryland and the other located in Jessup, Maryland. Giant also
operates its own beverage plant and ice cream plant in Jessup,
its own dairy in Landover, and its own bakery in Silver Spring.
The evidence presented before the Board of Appeals
established that Local 639 of the Teamsters Union represents the
truck drivers who drive tractor trailers from the
warehouse/distribution centers to the stores and who jockey
trailers around inside Giant's facilities. It was local 639 that
went on strike against Giant on December 15, 1996. Based on the
facts before it, the Board determined that members of the
following union locals "actively participated in the Local 639
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strike, by refusing to come to work and/or picketing in sympathy
with 639":
- Teamsters Local 730, which represents,
among others, warehousemen, bakery sanitors,
cafeteria and vending workers, ice plant
workers, and salvage workers,
- Teamsters Local 67, which represents
workers at the beverage plant,
- Teamsters Local 355, which represents
truck drivers who deliver pharmaceuticals,
- Teamsters Local 922, which represents,
among others, garage helpers and facility
maintenance workers,
- Teamsters Local 246, which represents
dairy workers, ice cream workers, bakery
drivers, and depot workers,
- Local 1486 of the International
Association of Machinists, which represents
garage mechanics, and
- Local 118 of the Bakery, Confectionery
and Tobacco Workers International Union,
which represents the bakers at the Silver
Spring bakery as well as the in-store bakers.
As a result of the strike, Giant was unable to supply
its grocery stores by way of its warehouse/distribution centers.
Instead, it used outside wholesalers and suppliers to stock the
stores. The ice cream plant, beverage plant, and dairy were shut
down for the duration of the strike. The bakery was closed
initially but reopened after three weeks, when the bakery workers
returned. Giant estimated that it lost about $4 million in
manufacturing profits. The Board found that the evidence before
it established that, during the period of the strike,
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(1) Giant incurred increased costs of
approximately $3.9 million [to replace goods
it ordinarily manufactured] . . . ;
(2) Giant experienced an overall
decrease in customer count that ranged from
6% to 10%, depending on how it is calculated
. . . ;
(3) Giant experienced a decrease in
aggregate sales of food and drugs of 14.82%
. . . .
The Board nevertheless determined that Giant had failed
to establish that a "stoppage of work" necessary to disqualify
the strikers from receiving unemployment benefits had occurred.
The circuit court affirmed and commented, inter alia,: "I cannot
say that the Board who is charged with the responsibility of
interpreting the law at first is clearly erroneous on the law,
that one could not come to that result." The court added: "[T]he
law has always been in administrative proceedings, that the gloss
put on a statute by the administrator, unless it is clearly
wrong, should be followed."
ISSUES
Giant contends that the circuit court erred in applying
the clearly erroneous standard to the Board's determination and
argues:
"I. The statutory disqualification of an
individual from receiving unemployment
benefits if `unemployment results from a
stoppage of work . . . that exists because of
a labor dispute at the premises where the
individual last was employed' requires only a
substantial curtailment of operations of the
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employer at the [specific workplace] where
the individual applicant for unemployment was
last employed and not of overall operations
of the employer at all locations, and
. . .
II. Even assuming that a curtailment of the
overall operations of an employer is legally
required for the statutory disqualification
to apply, the lower court erred in upholding
a determination by the Board of Appeals that
there was not a substantial curtailment of
Giant's overall operations as a result of the
strike in question."
STANDARD OF REVIEW
Recently, in Consumer Protection Division v. Luskin's,
Inc., 120 Md. App. 1, 22, cert. granted, 350 Md. 280 (1998), we
reiterated:
Our role in reviewing the decision of an
administrative agency "is precisely the same
as that of the circuit court." . . . We,
therefore, do not evaluate the findings of
fact and conclusions of law made by the
circuit court. We review the administrative
decision itself, . . . and not the decision
of the trial court. . . .
(Citations omitted.) Thus, whether the circuit court applied the
wrong standard of review is of no consequence if our own review
satisfies us that the Board's decision was proper.
In light of the expertise of administrative agencies,
"`decisions of administrative agencies are prima facie correct,'
. . . and `carry with them the presumption of validity' . . . ."
Bulluck v. Pelham Wood Apartments, 283 Md. 505, 513
(1978)(citations omitted). A reviewing court "may substitute its
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own judgment for that of the agency when resolving questions of
law." Luskin's, 120 Md. App. at 22-23. See also Ramsay,
Scarlett & Co., Inc. v. Comptroller of the Treasury, 302 Md. 825,
837 (1985). When the question is one of fact, however, judicial
review
is narrow in scope and requires the exercise
of restrained and disciplined judicial
judgment. . . . Where the agency's findings
of fact are supported by substantial
evidence, in the form either of direct proof
or permissible inference, in the record
before the agency, an appellate court may not
substitute its judgment, even on the question
of the appropriate inference to be drawn from
the evidence, for that of the agency. . . .
Thus, if reasoning minds could reasonably
reach the conclusion reached by the agency
from the facts in the record, then it is
based upon substantial evidence, and the
court has no power to reject that conclusion.
. . .
Liberty Nursing Center, Inc. v. Dep't of Health and Mental
Hygiene, 330 Md. 433, 442-43 (1993). The reviewing court also
applies the substantial evidence test "when the only question is
whether the [administrative agency], having a correct
understanding of the law, properly applied the law to the facts."
Supervisor of Assessments of Montgomery County v. Asbury
Methodist Home, Inc., 313 Md. 614, 627 (1988).
- 6 -
DISCUSSION
I
Scope of Stoppage of Work
Section 8-1004 (a) of the Labor and Employment Article
provides in pertinent part:
(1) an individual who otherwise is
eligible to receive benefits is disqualified
from receiving benefits for each week for
which the Secretary finds that unemployment
results from a stoppage of work, other than a
lockout, that exists because of a labor
dispute at the premises[ ] where the
1
individual last was employed; and
(2) if separate branches of work that
usually are conducted as separate businesses
in separate premises are conducted in
separate departments on the same premises,
each department shall be considered a
separate premises for the purpose of this
subsection.
Md. Lab. and Empl. Code Ann. § 8-1004(a) (1991 Repl. Vol.).
Giant contends that the phrase "at the premises
1Md. Ann. Code art. 95A, § 6(e) (1985 Repl. Vol.), the
predecessor to § 8-1004(a)(1), provided that an individual was
ineligible for benefits if his unemployment was "due to a stoppage
of work . . . which exists because of a labor dispute at the
factory, establishment, or other premises at which he is or was
last employed . . . ." (Emphasis added.) By 1991 Laws of
Maryland, Chapter 8, § 2, the Legislature revised, restated, and
recodified article 95A and other laws, creating the Labor and
Employment Article. Section 6(e) of Article 95A became
§ 8-1004(a), and the words factory and establishment were deleted,
apparently as surplusage. As stated in the revisor's note, the new
language was "derived without substantive change from former Art.
95A, § 6(e) . . . ." Thus, the word "premises" in the current
statute implicitly encompasses a factory or establishment.
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where the individual last was employed" in § 8-1004(a)(1)
modifies not only "labor dispute" but also "stoppage of work."
Thus, Giant reads § 8-1004(a)(1) to state that an individual
is ineligible for benefits if there was a "stoppage of work"
at the "premises" where he was last employed. It further
interprets "premises" to mean the specific workplace of the
individual within the employer's enterprise. Giant concludes
that § 8-1004 disallows benefits if there was a stoppage of
work at the individual's specific workplace, even if the
employer's business as a whole was not significantly
affected. Giant points out that, in determining that Giant
experienced no stoppage of work, the Board looked to Giant's
operations as a whole and not to the specific workplaces
of the workers who filed claims for unemployment benefits.
Giant argues that had the Board looked to the specific
workplaces of the claimants -- the warehouse/distribution
centers and manufacturing plants -- it would have necessarily
2
determined that stoppages of work had occurred at those
workplaces and that the workers were ineligible for benefits.
Preliminarily, there is some question as to whether
Giant's argument is properly before this Court. The appellees
contend that Giant failed to argue to the Board of Appeals that
2Giant posits that the workplaces of the truck drivers were
the warehouse/distribution centers. That issue was not decided
below since the Board determined that there was no stoppage of
work.
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the phrase "at the premises where the individual last was
employed" modifies "stoppage of work," or that the Board should
consider only the specific workplaces of the claimants in
determining if there was a stoppage of work. The appellees point
out that, in a post-hearing memorandum, Giant urged the Board to
"look[] to [its] entire operation to determine whether any of its
major functions were substantially curtailed by the labor
dispute." From this, the appellees conclude that Giant's
argument has been waived. See generally Md. Rule 8-131(a).
Giant counters that it repeatedly urged the Board to consider
what happened at the manufacturing plants and the
warehouse/distribution centers. It contends that the quoted
portion of the post-hearing memorandum was designed to direct the
Board's attention to those workplaces and not to convince the
Board to look to its overall operations rather than the specific
workplaces. Assuming without deciding that Giant's
characterization of its argument before the Board is the more
accurate one and that the argument is preserved, we are satisfied
that the Board properly construed § 8-1004(a)(1) and properly
considered Giant's operations as a whole in deciding that there
was no stoppage of work.
As the Court of Appeals has made clear, "`[t]he
cardinal rule of statutory construction is to ascertain and
effectuate the actual intent of the [l]egislature.'" Hyle v.
Motor Vehicle Admin., 348 Md. 143, 148 (1997) (citation omitted).
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"To determine the legislature's intent, we must look `"`first to
the words of the statute, read in light of the full context in
which they appear, and in light of external manifestations of
intent or general purpose available through other evidence.'"'"
Id. (citations omitted). "In interpreting a statute, `we
construe the statute as a whole, interpreting each provision of
the statute in the context of the entire statutory scheme.'" Id.
at 149. "`Punctuation may, when the meaning of the statute is
uncertain, be looked to in ascertaining the real meaning, or, if
the punctuation gives the statute a reasonable meaning apparently
in accord with the legislative intent, it may be used as an
additional argument for adopting the literal meaning of the words
of the statute thus punctuated."' Webb v. City of Baltimore, 179
Md. 407, 409-10 (1941) (citation omitted).
The plain language of the statute convinces us that the
Legislature did not intend for the phrase "at the premises where
the individual last was employed" to modify "stoppage of work."
We conclude that the phrase modified the words "labor dispute,"
which immediately preceded it.3 See Sullivan v. Dixon, 280 Md.
3The Court of Appeals has defined the boundaries of an
"establishment" for purposes of determining whether a labor dispute
occurred at the establishment where the claimant was last employed.
In Tucker v. American Smelting & Refining Co., 189 Md. 250 (1947),
a strike at the appellee's Garfield, Utah copper smelting plant
dried up supplies to the appellee's Baltimore refinery, ultimately
leading to lay-offs in Baltimore. The Court of Appeals was asked
to determine whether the Utah smelting plant and the Baltimore
refinery were the same establishment, such that the labor dispute
in Utah would disqualify the Baltimore workers from collecting
- 10 -
444, 451 (1977) (following "the generally recognized rule of
statutory construction that a qualifying clause ordinarily is
confined to the immediately preceding words or phrase --
particularly in the absence of a comma before the qualifying
clause . . ."). Section 8-1004(a)(1) was carefully crafted to
disqualify from receiving benefits only those individuals whose
unemployment resulted from a stoppage of work, where the stoppage
of work was caused by a labor dispute that occurred at the
unemployment benefits. The Court concluded that the two operations
did not constitute one establishment. In addition to pointing to
the great physical distance between the operations, the Court noted
"the absence of evidence that the Garfield and Baltimore plants,
because of `functional integrality,' `general unity,' or `physical
proximity,' constitute a single `establishment.'" Id. at 256.
As Tucker exemplifies, questions regarding the boundaries
of factories, establishments, or other premises most often arise
when there is no dispute that there was a stoppage of work but
there is a dispute as to whether the stoppage was due to a labor
dispute at the claimant's workplace. Numerous courts in other
jurisdictions with provisions similar to § 8-1004(a)(1) have
wrestled with such questions, and the results have been strikingly
inconsistent. See, e.g., Liberty Trucking Co. v. Dep't of Indus.,
Labor and Human Relations, 204 N.W.2d 457, 461-63 (Wis. 1973);
Ahnne v. Dep't of Labor and Indus. Relations, 489 P.2d 1397, 1401
(Haw. 1971); Ford Motor Co. v. Burson, 470 S.W.2d 941, 944 (Tenn.
1971); In the Matter of Claim of Sierant, 301 N.Y.S.2d 604, 608
(N.Y. 1969); Weiss v. Klein Supermarkets, Inc., 108 N.W.2d 4, 7-9
(Minn. 1961); Koll v. Edgekvist Bakeries, Inc., 107 N.W.2d 373, 376
(Minn. 1961); Kroger v. Industrial Comm'n, 314 S.W.2d 250, 254-55
(Mo. 1958); Ford Motor Co. v. Director of Div. of Employment, 96
N.E.2d 859, 862 (Mass. 1951); Ford Motor Co. v. Unemployment
Compensation Commission, 63 S.E.2d 28, 32-33 (Va. 1951); Ford Motor
Co. v. Abercrombie, 62 S.E.2d 209, 214-15 (Ga. 1950); Nordling v.
Ford Motor Co., 42 N.W.2d 576, 581-88 (Minn. 1950); Spielman v.
Indus. Comm'n, 295 N.W. 1, 3-5 (Wis. 1940); In the Matter of Claim
of DiLella, 368 N.Y.S.2d 300, 301-02 (N.Y. App. Div. 1975); Graham
v. Fred Sanders Co., 161 N.W.2d 601, 604-07 (Mich. Ct. App. 1968);
Basso v. News Syndicate Co., 216 A.2d 597, 600-05 (N.J. Super. Ct.
1966).
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premises where the individuals were last employed. Section
8-1004(b) provides a means for those individuals to show that
even though the labor dispute occurred at the premises where they
were last employed, they were not involved in the dispute and are
therefore eligible for benefits. As implicitly made clear by
§ 8-1004(a)(2), § 8-1004(a)(1) does not disqualify individuals
whose unemployment resulted from a stoppage of work due to a
labor dispute that occurred at premises other than those at which
they were last employed. Giant's reading of the statute to
disqualify individuals whose unemployment resulted from a
stoppage of work at the premises where they were last employed,
due to a labor dispute at those same premises, would leave in
limbo the eligibility for benefits of those individuals whose
unemployment is the result of a stoppage of work due to a labor
dispute at some other premises. Our reading of the statute is
consistent with "the remedial nature of unemployment
compensation, from which flow the principles that such laws
should be read liberally in favor of eligibility . . . ."
Sinai Hosp. v. Dep't of Employment and Training, 309 Md. 28, 40
(1987).
We are convinced, moreover, that the Board properly
considered Giant's operations as a whole in determining that
there was no stoppage of work. In Unemployment Benefits and the
"Labor Dispute" Disqualification, 17 U. Chi. L. Rev. 294, 311
(1949-50), commentator Milton I. Shadur addressed the
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"troublesome" question of "whether benefits are payable during
disputes which cause a substantial production drop in one
department, though not in the entire plant." Referring
specifically to statutes such as § 8-1004(a), Shadur wrote that a
majority of the states'
"stoppage of work" statutes provide that if
"separate branches of work which are commonly
conducted as separate businesses in separate
premises are conducted in separate
departments of the same premises, each such
department shall, for the purpose of this
subsection, be deemed to be a separate
factory, establishment, or other premises."
The implication is that departments which are
not "commonly conducted as separate
businesses in separate premises" do not
possess independent status for the purpose of
determining disqualification. The test
should thus be whether the stoppage was
substantial in relation to the entire
establishment's production, not merely to
that of the department in which the dispute
occurred. This approach would be harmonious
with the view that benefits should depend in
part upon the likelihood of success of the
employee's strike.
17 U. Chi. L. Rev. at 311-12 (emphasis in original).
See generally Willard A. Lewis, The "Stoppage of Work"
Concept in Labor Dispute Disqualification Jurisprudence,
45 J. Urban L. 319, 334-35 (1967) (explaining that where
different branches of work are conducted as separate businesses
the measurement of stoppage of work is confined to the separate
branch alone).
The Board of Appeals implicitly concluded that Giant's
manufacturing plants and warehouse/distribution centers are not
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"conducted as separate businesses in separate premises."
§ 8-1004(a)(2). We perceive no error. Giant candidly describes
itself as "a vertically-integrated grocery operation." There is
no indication that, at the relevant time, Giant's manufac-
turing plants or warehouse/distribution centers supplied any
entity other than Giant. Giant does not contend that its
manufacturing plants or warehouse/distribution centers were
operated as separate businesses, and directs us to no evidence
before the Board that would indicate as much. Compare
Walgreen Co v. Murphy, 53 N.E.2d 390 (Ill. 1944) (drug
company's warehouse, which supplied company's chain stores as
well as various other entities, was separate establishment
such that court had only to look to whether there was stoppage
of work at warehouse).
Both appellants and appellees direct us to Employment
Sec. Admin. v. Browning-Ferris, Inc., 292 Md. 515, 517 (1982)
("BFI"). In that case, the Court of Appeals was asked to
determine whether the Board of Appeals properly determined that
claimants who had participated in a strike against their employer
were eligible to receive unemployment benefits on the ground that
there had been no stoppage of work as a result of the strike.
The Court adopted the view held by the majority of states as to
their own unemployment insurance laws, that the phrase "stoppage
of work" in the Maryland Unemployment Insurance Law refers to the
"curtailment of the employer's operations" and not to cessation
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of the worker's labor. Id. at 528. The Court was not called
upon to address and did not address whether, for an employee to
be ineligible for unemployment benefits, the contemplated
stoppage of work must curtail the employer's operations as a
whole or must curtail only the operations at the employee's
specific workplace. Indeed, there was no discussion as to
whether there was more than one workplace in Browning-Ferris.
The Court merely suggested that the curtailment of the employer's
operations must be "substantial." Id. at 528. It recognized
"the difficulty of applying a fixed percentage rule to define
`substantial,'" id. at 529, and observed:
"Since the mid-fifties, there has been a
new emphasis placed upon the term
`operations.' As production increasingly
represents less than totality of the
employing unit's performance, decreases in
business revenue, services rendered,
marketing, research, and maintenance,
transportation, and construction activities
have come to the fore as indicia of
substantialness."
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Id. at 529-30 (quoting Lewis, 45 J. Urban L. at 322). The Court
4
looked to the quoted criteria in determining that the Board
properly concluded that Browning-Ferris had not experienced a
work stoppage. See 292 Md. at 530.
In determining that a work stoppage occurs when there
is a substantial curtailment of the employer's operations, the
BFI Court relied on a number of decisions from other
jurisdictions with statutes similar to our own. See 292 Md. at
528-29, n.13. Three, in particular, are significant. In
Continental Oil Co. v. Bd. of Labor Appeals, 582 P.2d 1236 (Mont.
1978), workers at an oil refinery were awarded unemployment
benefits for a period during which they were on strike on the
ground that there was no stoppage of work. The employer
appealed, arguing that, although production levels remained
normal, there were stoppages in areas such as "training,
planning, budgeting, etc." Id. at 1244. The Supreme Court of
4Lewis explains the significance of the use of the word
"substantial" to modify curtailment or stoppage of work. He
observes that most states, like Maryland, modeled their
unemployment compensation statutes after the Social Security Draft
Bill, which in turn was modeled after the British Unemployment
Insurance Acts. See 45 J. Urban L. at 322. See also BFI, 292 Md.
at 521-22. While British courts have determined that a stoppage of
work must be "appreciable" before a striking worker will be
ineligible for benefits, a majority of the state courts have held
that the stoppage must be "substantial." According to Lewis, the
appreciable standard "was more concerned with computing the numbers
of vacancies occasioned by the labor dispute; the [substantial
standard] introduced the variety of factors which bear upon the
overall operation of the employer's business." 45 J. Urban L. at
327.
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Montana rejected the argument, explaining: "We do not accept
. . . the proposition that whenever a labor dispute forces a
change in an employer's method of operation or causes a
curtailment of some activities within the plant, there per se
exists a stoppage of work." Id. at 1245.
In Meadow-Gold Dairies - Hawaii, Ltd. v. Wiig, 437 P.2d
317 (Haw. 1968), the appeals of two dairies that were struck by
union workers were consolidated. The Supreme Court of Hawaii
affirmed referee determinations that the dairies experienced no
stoppages of work, even though production at one dairy declined
18.65% and production at the other declined 17.66%, and both
dairies were forced to cease all door-to-door deliveries.
Similar to the Court in Continental Oil, the Court commented: "We
do not accept the proposition that whenever a labor dispute
forces a significant change in an employer's method of operation,
or necessitates a part of the production process to leave the
plant, there exists a `stoppage of work.'" 437 P.2d at 320-21.
The Supreme Court of West Virginia upheld a
determination that there was no stoppage of work at a gas utility
in Cumberland and Allegany Gas Co. v. Hatcher, 130 S.E.2d 115 (W.
Va. 1963), overruled on other grounds, Lee-Norse Co. v. Rutledge,
291 S.E.2d 477 (W. Va. 1982). In that case, the employer was
able to supply gas to all of its customers and to generate bills,
but was unable to handle routine service orders, read domestic
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meters, install new service lines, or perform maintenance work.
The Court explained:
. . . In some situations, a substantial
curtailment of work in a single category or
department of the employer's operations might
be of such a vital nature as to result in a
substantial curtailment of the employer's
activities if all categories or departments
were of an interdependent nature; while,
conceivably, in another and different
situation, a complete cessation of work in a
single category or department of some
incidental or minor nature might produce no
appreciable curtailment of the overall
operations of the employer.
Id. at 121.
In short, the cases on which the Court of Appeals
relied in BFI when it adopted the "substantial curtailment" test
for determining when there has been a stoppage of work looked to
the overall operations of the employer and not to the operations
of any specific workplace. As the BFI Court indicated, the test
itself involves a review of the totality of the circumstances of
the employer's operations. See 292 Md. at 529. See generally
Thomas J. Goger, Annotation, Construction of Phrase "Stoppage of
Work" in Statutory Provision Denying Unemployment Compensation
Benefits During Stoppage Resulting From Labor Dispute, 61
A.L.R.3d 693 (1975).
In determining that Giant did not experience a
substantial stoppage of work and that the striking workers were
therefore eligible to receive unemployment benefits, the Board of
Appeals did not attempt -- and was not asked -- expressly to
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define the premises that it was considering. The Board
implicitly looked to the operations as a whole, a course of
action it was entitled to take absent evidence that Giant's
manufacturing plants and warehouse/distribution centers were
operated as separate businesses. See, e.g., Asher v. C&P
Telephone Co. of Md., Decision No. 881-BH-84 (Nov. 8, 1984);
Barnes v. AT&T, Decision No. 891-BH-84 (Nov. 14, 1984). See also
Tracey v. American Totalisator Co., Benefit Determination No. 409
(Oct. 21, 1986).
II
Substantial Curtailment of Operations as a Whole
In the alternative, Giant argues, in essence, that even
if the Board properly considered its operations as a whole, the
Board erred in determining that the operations were not
substantially curtailed. Giant posits that the Board gave
insufficient weight to, inter alia, the shutdowns of the
manufacturing plants and warehouse/distribution centers, lost
manufacturing profits, and increased costs due to the strike.
5
As we have indicated, in reviewing the Board's decision on a
question of fact or a mixed question of fact and law, a reviewing
court must affirm the Board "if reasoning minds could reasonably
5For instance, although Giant presented evidence that it
incurred approximately $2.2 million in increased transportation
costs and lost $500,000 worth of perishable products, the Board
made no mention of the evidence in its determination.
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reach the conclusion reached by the agency from the facts in the
record." Liberty Nursing Center, 330 Md. at 443.
As the Court of Appeals held in BFI, 292 Md. at 529-30,
a flexible balancing test is to be applied in determining if
there was a stoppage of work. In addition to declines in
production, "decreases in business revenue, services rendered,
marketing, research, and maintenance, transportation, and
construction activities," as well as any other relevant
considerations, must be weighed. Id. In accordance with BFI,
the Board expressly considered that Giant had: closed its
manufacturing plants and warehouse/distribution centers;
experienced a decrease in aggregate sales of food and drugs of
approximately 14.82%; experienced a drop in customer count of
from 6% to 10% from the year before; and incurred increased costs
of approximately $3.9 million to replace goods it ordinarily
manufactured. The Board acknowledged that Giant had presented
evidence that it lost approximately $4 million in manufacturing
profit, but explained that it did not find the loss to be a
significant factor in determining whether a stoppage of work had
occurred, apparently in light of the related figures for overall
sales losses. The Board pointed out that Giant's stores had
remained open and that Giant had managed to keep the stores
stocked by using outside vendors. It noted that just ten days
before the strike ended Giant's spokesperson had told the press
that, although sales were "slightly down," the "recent mild
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weather and the typical post-holiday dip in sales" could be
factors. On the record before us, we cannot conclude that
reasoning minds could not reasonably have reached the decision
reached by the Board.
JUDGMENT AFFIRMED; APPELLANT
TO PAY THE COSTS.