PROCEEDING pursuant to section 220 of the Labor Law and article 78 of the Civil Practice Act (transferred to the Appellate Division of the Supreme Court in the first judicial department by an order of the Supreme Court at Special Term, entered in New York County) to review a determination of the State Industrial Commissioner establishing a prevailing rate of wage to be paid tunnel workmen on a State public works construction project.
Robert P. Knapp, Jr., of counsel (Breed, Abbott & Morgan, attorneys), for petitioner.
Philip Watson of counsel (Wendell P. Brown and Samuel A. Hirshowitz with him on the brief; Nathaniel L.
Goldstein, Attorney-General), for respondents.
Edmond B. Butler of counsel (O'Connell & Butler, attorneys), for the International Hod Carriers' Building and Common Laborers' Union of America,
In this article 78 proceeding, petitioner seeks to annul the determination of the State Industrial Commissioner fixing prevailing rate of wages pursuant to section 220 of the Labor Law. Petitioner is a contractor who was engaged, under written contract, to build a tunnel in Broome County as part of a State project. Involved is the classification and rate of pay of men who worked in digging the tunnel. The contractor has contended that the men were used as common laborers and were so paid, in accordance with the schedule attached to the specifications. The State Industrial Commissioner has found that the nature of the work was that of skilled tunnel work and fixed prevailing rates of wages in several classifications and at several rates ranging from miner to tunnel laborer.
In our view, the determination must be annulled because the procedure followed did not conform to the statute and the matter should be remitted to the State Industrial Commissioner for such further proceedings as may be appropriate. As a consequence, it will not be necessary to consider the nature of the work involved in this project.
Section 220 of the Labor Law provides that, in connection with all public works, the prevailing rate of wage paid to a majority of workmen in the same trade or occupation in a locality shall be paid to workers on public projects. 'Locality' is defined as 'the town, city, village or other civil division of the state wherein the physical work is being performed'. (Subd. 5, par. b.) It is further provided that, where there are no such workmen in the locality, the first larger civil division in which such workmen are employed shall be used as a base. It is then provided as follows: 'The first larger civil division shall be determined in the following order: (1) city or village, (2) township, (3) county, (4) the contiguous counties to the county in which the physical work is to be performed.'
In this proceeding, the State Industrial Commissioner found no workmen engaged in the same trade or occupation in Broome County nor, he asserted, did he find such anywhere in the State except in the city of New York in connection with two projects in Queens and Bronx Counties. He, therefore, used Queens and Bronx Counties as the base. But he was powerless to so do. The statute is quite clear. It permits the State Industrial Commissioner to use a ring of contiguous counties, as part of a larger civil division of the State, in which to ascertain the existence of a prevailing rate of wage. It does not, however, permit him to rove through ever-widening circles of nonadjoining counties, and, by no means, does it permit him to use the
entire State as an area for making his determination. The use of familiar and constrictive terms like 'locality', 'civil division', and 'contiguous' is completely inconsistent with and contradictory of the notion that it was contemplated that a prevailing rate of wage should be determined, in any instance, on a State-wide unit basis. For this reason the determination should be annulled.
The State Industrial Commissioner used a further procedure for which there is no basis in the statute. Evidently recognizing that wage levels in Queens and Bronx Counties might not be comparable to those in Broome County, he used a proportional method for determining the prevailing rate of wage to apply to the Broome County tunnel workers. He first determined what was the prevailing rate of pay in the several counties for common laborers. He then took the wage differential in Queens and Bronx Counties between common laborers and tunnel workers and applied that differential proportionately to the Broome County figure for common laborers. There is no authority for application of such a method and its use perhaps suggests the artificiality of the approach by the State Industrial Commissioner in reaching his conclusion in this proceeding.
It has been suggested that the determination should be annulled and the rate-of-wage proceeding finally dismissed because of another circumstance that existed in this case. Under section 220 of the Labor Law, the department having jurisdiction of a public work project has the responsibility for annexing to the specifications a schedule of classification of workers, together with the respective prevailing rates of pay. In the instant proposals, the schedule did not refer to tunnel workers, although it did contain a classification of common laborers. It was only after the project was well under way and, of course, after the contract-letting, that the rate-of-wage proceeding was initiated to reclassify the tunnel workers and fix the higher rate of pay. [a1] It is urged that the statute does not authorize any such proceeding once the contract has been let and executed. The contract is not included in the record, but the statute requires that it contain the provision that the contractor undertakes to pay the prevailing rate of wage (Labor Law, ...