The opinion of the court was delivered by: Robert L. Carter, District Judge.
Plaintiff General Electric ("GE") seeks an order declaring
invalid New York's prevailing wage law, N.Y.Lab.Law § 220
(McKinney 1986 & Supp. 1990), on various grounds, and enjoining
the statute's enforcement or incorporation into state
contracts. Presently before the court are motions for summary
judgment by both GE and defendants, New York State's Department
of Labor (the "Department"), Industrial Commissioner, Director
of Public Work of the Department, and Attorney General
(collectively, the "State").
The facts relevant to this case are described in detail in
the court's prior opinion in this case, General Electric Co. v.
New York State Department of Labor, 698 F. Supp. 1093, 1094-95
(S.D.N.Y. 1988) (Carter, J.), familiarity with which is
presumed. In that decision, the court denied GE's motion for a
preliminary injunction, finding that Section 220 was not
preempted either by the Employment Retirement Income Security
Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., or by the
National Labor Relations Act ("NLRA"), 29 U.S.C. § 151, et seq.
An appeal followed and on November 29, 1989, the United States
Court of Appeals for the Second Circuit vacated this court's
decision. The Court of Appeals held that the provisions of
Section 220 concerning "supplements" were preempted by Section
514(a) of ERISA, though not by the NLRA. General Electric Co.
v. New York State Department of Labor, 891 F.2d 25 (2d Cir.
1989). The Court of Appeals also remanded to this court for
determination of whether the manner in which wage and
supplement rates are established under Section 220 constitutes
an unconstitutional delegation of legislative power. 891 F.2d
at 27. Each party now moves for summary judgment pursuant to
Rule 56, F.R.Civ.P.
In support of its motion, plaintiff first argues that the
supplement provisions of Section 220 are part of a unitary
statutory scheme and, the Court of Appeals having established
that those provisions are preempted by ERISA, the
non-supplement provisions must also fall. Plaintiff asserts
that the severability of a statute is a question of legislative
intent and that the New York legislature did not intend that
the supplement and non-supplement provisions be severable.
Plaintiff next argues that if Section 220 is found severable
by the court, all statutory references to "supplements," not
just those concerning supplements which are to be provided
through employee benefit plans, must be declared preempted by
ERISA. Plaintiff also reasons that the Department's disparate
treatment of contractors according to whether they provide
benefits through ERISA plans would violate the equal protection
clause of the Fourteenth Amendment.
As in its motion for a preliminary injunction, plaintiff
asserts that Section 220 violates due process by delegating the
legislative power to set prevailing wage rates to private
parties — i.e., parties to collective bargaining agreements
("CBAs") negotiated in the locality — without providing
adequate standards governing the exercise of that power.
Finally, although the Court of Appeals affirmed this court's
finding that Section 220 is not preempted on its face by the
NLRA, 891 F.2d at 27, plaintiff argues that it now submits
additional information tending to show that the Department's
application of the statute intrudes upon areas prohibited to
the states and is therefore preempted.
In opposing plaintiff's motion for summary judgment, the
State responds that the wage provisions of Section 220 are
independent from the supplement provisions and readily
severable, that the non-ERISA supplement aspects of the statute
were not held preempted by the Court of Appeals and are
severable from the ERISA supplement provisions, and that the
valid provisions of the statute have a rational basis as
applied to plaintiff and therefore do not violate equal
Defendants also contend that the United States Constitution
does not prohibit state legislation which looks to the dealings
of private parties to give specific meaning to its substantive
provisions. They further argue that this court and the Court of
Appeals have resolved the NLRA preemption issue in their favor.
In addition to these arguments, the State asserts in support
of its own motion for summary judgment on counts one, three,
four and five of plaintiff's complaint that the court has
previously found that it lacks subject matter jurisdiction over
plaintiff's state law claims. Plaintiff does not refute this