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December 3, 1975

NICHOLAS S. VALENTINE, JR., Individually and in his capacity as Director of the Bureau of Public Work, Department of Labor of the State of New York, ALLEN E. DEKDEBRUN, Individually and in his capacity as Supervisor of the Town of Amherst, GERALD I. BROWNROUT, JOHN T. MADDEN, JR., HAROLD J. COLLIER, CHARLES W. MOSES, LAWRENCE SOUTHWICK, JR., and RICHARD C. BARTON, Individually and in their capacity as Councilmen for the Town of Amherst acting as Commissioners for the Sanitary Sewer Districts for Contract 2A-1 and 2A-2 and Contract 8, dated December 30, 1974, SPECIAL IMPROVEMENT DISTRICT for all Sanitary Sewer Districts of the Town of Amherst, Defendants, BUILDING TRADES COUNCIL, BUFFALO, NEW YORK AND VICINITY, Defendant-Intervenor

The opinion of the court was delivered by: CURTIN



 This case poses the question of whether or not there is a conflict between New York Labor Law § 220(2-a) *fn1" and 40 U.S.C. § 328. *fn2" Section 220(2-a) makes it a crime for any corporation contracting with a state or a municipal corporation in New York State to require more than eight hours work for a day's labor unless otherwise permitted by law. Section 328 provides that any laborer or mechanic employed on federally assisted projects shall be paid time and a half for all hours worked in excess of eight hours per day, or in excess of forty hours in any work week.

 The plaintiff, Firelands Sewer & Water Construction Co., Inc. [Firelands], an Ohio corporation, obtained a contract to perform sewer and pipeline construction work in the Town of Amherst, New York. The conflict between the two statutes arose when Firelands attempted to have its employees work more than eight hours a day and more than forty hours a week. It is willing to pay them time and a half for this overtime work. Firelands sought a temporary restraining order in this court after town and state officials threatened them with arrest under § 220(2-a). Jurisdiction of this court exists by virtue of 28 U.S.C. §§ 1331, 1332 because there is diversity of citizenship and the amount in controversy exceeds $ 10,000, and because a federal question has been raised.

 On July 11, 1975 this court issued a temporary restraining order enjoining the defendants from interfering in any manner with the plaintiff's performance of its contract with the Town of Amherst, particularly with relation to the enforcement of § 220(2-a) of the Labor Law of the State of New York. The order was extended until July 23, 1975 when, after hearing arguments on plaintiff's motion for a preliminary injunction, the court lifted the temporary restraining order and took the motion for preliminary relief under consideration. Since that time the defendant-intervenor, Building Trades Council, and the defendant, Nicholas S. Valentine, Jr., represented by the Attorney General's Office of the State of New York, have moved for summary judgment. The court is now ready to consider the various motions made by the parties.

 The facts giving rise to this lawsuit can be briefly stated. On December 30, 1974 plaintiff entered into a contract for the performance of certain sanitary sewer work in the Town of Amherst, New York. On April 16, 1975 the defendant, Nicholas S. Valentine, Jr., Director of Public Works of the State of New York Department of Labor, refused to grant authorization to the plaintiff so that its employees might work over eight hours in any one day, or over five days in any one week. Thereafter, on various occasions plaintiff received notice of labor law inspection findings by the Department of Labor of New York State from the defendant Valentine, which notices alleged that plaintiff was performing its work under the contract in violation of § 220(2-a) in that plaintiff was permitting overtime work to be performed at the contract site. In addition to the above, plaintiff's problems were multiplied by actions taken by certain Town of Amherst officials. On June 26, 1975 the consulting engineer employed by the Town of Amherst directed compliance with §§ 220(2-a) and 223. *fn3" On June 28 the consulting engineer, acting pursuant to the instruction of the defendants' town attorney, directed that work cease upon the contract because of alleged violations of §§ 220(2-a) and 223 and, on July 3, a similar communication from the consulting engineer advised that the contract would be terminated because state law had not been followed. Furthermore, after July 3 defendant Town of Amherst continued to maintain the above position and the defendant State of New York continued to threaten enforcement proceedings pursuant to §§ 220(2-a) and 223 of the New York State Labor Law.

 In its motion for a preliminary injunction, plaintiff contends that overtime work by its employees in the performance of its contract is permitted according to the contract and federal law. The contract between plaintiff and defendant Town of Amherst provides, inter alia :

6. Labor Standards
The Federal Labor Standards Provisions for Federally Assisted Construction Contracts, EPA Form 5720-4 (5-73), as reproduced on the following four pages, are hereby made a part of this contract, and their requirements or provisions shall supersede provisions and requirements stated elsewhere in the Contract Documents.

 The contract also provides:

4. State and Local Laws
The construction of the project, including the letting of contracts in connection therewith, shall conform to the applicable requirements of State, territorial, and local laws and ordinances to the extent that such requirements do not conflict with Federal laws.

 Plaintiff argues that there is a conflict between federal and state law raised by virtue of the above provisions because 40 U.S.C. § 328 permits overtime work on federally assisted projects and § 220(2-a) of the New York State Labor Law prohibits it. The defendant New York State and defendant-intervenor Building Trades Council, on the other hand, argue that § 328 only provides for the payment of at least time and a half whenever overtime work is performed and that this is not a mandate which would be in conflict with § 220(2-a), prohibiting overtime work altogether.

 The court finds that there is no conflict between the two sections. A common-sense reading of § 328 indicates that it addresses itself to and provides for wages to be paid on public works projects when overtime work is involved. It does not mandate overtime work, but affects employees on public projects only when overtime work is permitted. Therefore, since § 220(2-a) ...

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