Appeal from an order and judgment of the United States District Court for the Southern District of New York, Griesa, J., which denied appellant's motion for a preliminary injunction and granted appellees' motion to dismiss the complaint for failure to state a valid claim.
Waterman, Van Graafeiland and Kearse, Circuit Judges. Kearse, Circuit Judge, concurring in part and dissenting in part.
VAN GRAAFEILAND, Circuit Judge:
Duboff Electric, Inc. appeals from an order and judgment of the United States District Court for the Southern District of New York, Griesa, J., which denied its motion for a preliminary injunction and granted defendants' motion to dismiss the complaint for failure to state a valid claim. We affirm the denial of the preliminary injunction but reverse the dismissal of the complaint and remand to the district court in order that there may be a further and more accurate development of the facts.
Appellant, an electrical contractor, was the lowest bidder on contracts No. 78-4153 and 78-4154, awarded by the New York City Housing Authority. Because the housing project involved was federally funded, both the Davis-Bacon Act, 40 U.S.C. §§ 276a-276a-5, and section 220 of New York Labor Law, 30 McKinney's, were applicable. Both statutes require in substance that employees of public construction contractors must be paid at the wage rate prevailing in the locality. For present purposes, we are concerned only with the provisions of the New York statute.
Sections 220(3) and (5) provide that the rate of wage on public work contracts shall be not less than the rate of wage paid in the locality to the majority of workers in the same trade or occupation. Such contracts also must provide for the payment of wage supplements prevalent in the community, which include, but are not limited to, "health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay and life insurance", § 220(5)(b). The appropriate fiscal officer, in this case the Comptroller, must determine the schedules of wages and supplements prior to advertising for bids, and the schedules thereafter form part of the specifications for the work, § 220(3). Any contractor who willfully pays less than the established scale of wages and supplements is guilty of a misdemeanor, id.
The "Prevailing Wage Schedule" for the contracts here at issue provided for a base rate of $12.85 per hour for electrical workers. Under "Supplemental Benefits" the Schedule read as follows:
$8.00 per day AF; Apprentice Ratio 1-3;
$.064 EF; Employee's Full SS; 7 hour day;
$.032 JIB Assessment; $.3855 NEBF,
We assume that "AF" means "Annuity Fund", "EF" means "Education Fund", "SS" means "Social Security", "JIB" means "Joint Industry Board", "NEBF" means "National Electric Benefit Fund", "PF" means "Pension Fund", and "VF" means "Vacation Fund". We are unable to determine what "PH" stands for.
On March 4, 1980, appellee Goldin served appellant with a notice that a hearing would be held to determine whether appellant had violated section 220 as alleged in a complaint attached to the notice. The complaint alleged that appellant had violated section 220 by failing to pay prevailing wages and supplements to four named employees, the total overall underpayment being in the amount $11,527.18. On March 31, 1980, Goldin served a notice of an adjourned hearing with attached complaint, ...