The opinion of the court was delivered by: Wexler, District Judge
Plaintiffs RI, Inc. d/b/a Seating Solutions ('Seating Solutions"), Lisa Suprina, Scott Suprina ("Suprina"), and Tony English bring this action under 42 U.S.C. § 1983 and the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151 et seq., against defendants Colleen Gardner, New York State Commissioner of Labor ("Commissioner"); M. Patricia Smith, former New York State Commissioner of Labor; Christopher Alund, Director of the Bureau of Public Work ("BPW") of the New York State Department of Labor ("DOL"); Joseph Ocon ("Ocon), senior investigator of the BPW; and Matthew Myers ("Myers"), senior investigator of the BPW. Defendants move for summary judgment under Federal Rule of Civil Procedure 56. Plaintiffs oppose the motion.
For purposes of this motion, the evidence can be summarized as follows. Seating Solutions is a corporation with its principal place of business in Commack, New York. Seating Solutions specializes in seating system design and construction for installation of spectator seating at recreational and athletic facilities. Seating Solutions has performed subcontracting work on a number of public construction projects in New York, including projects in Sewanhaka, Smithtown, Brookhaven and Oyster Bay (the "Projects").
In early 2005, Seating Solutions' personnel formed a union known as the United Federation of Maintenance Installers & Assemblers of Audience & Spectator Seating Systems ("United Federation" or the "Union"). On April 30, 2005, Seating Solutions and the United Federation entered into a collective bargaining agreement (the "United Federation CBA"). The Union collectively bargained for, inter alia, a guaranteed work/no layoff provision, given that Seating Solutions tends to have more work in the warmer months than in the cooler months. In exchange for the guaranteed work/no layoff provision, the Union members agreed to waive any of their rights under state and federal prevailing wage statutes.
Public construction projects in New York are subject to the state's prevailing wage law, New York Labor Law §§ 220 et seq. Essentially, the prevailing wage law requires contractors bidding on public work to pay union-level wages, as determined by collective bargaining agreements, whether their employees are union members or not. The law requires that the wages to be paid "for a legal day's work . . . to laborers, workmen or mechanics upon such public works, shall not be less than the prevailing rate of wages [as defined therein]." Id. § 220(3)(a). The law also requires "supplements" be paid to such workers in accordance with "the prevailing practices in the locality." Id. § 220(3)(b). Supplements include remuneration or payments which are not "wages" under the law "including, but not limited to, health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay, life insurance, and apprenticeship training." Id. § 220(5)(b).
Section 220(5)(a) defines the prevailing rate of wage as the rate of wage paid in the locality . . . by virtue of collective bargaining agreements between bona fide labor organizations and employers of the private sector, performing public or private work provided that said employers employ at least thirty per centum of workers, laborers or mechanics in the same trade or occupation in the locality where the work is being performed.
Id. § 220(5)(a). The Commissioner is the "fiscal officer" responsible for setting the prevailing wage rate outside the City of New York. Id. § 220(5)(e). The Commissioner determines the prevailing rate through a two-step process. First, the Commissioner classifies work as pertaining to a particular trade, and second, the Commissioner determines the rate that is prescribed for the work in that locality by the collective bargaining agreements covering that trade. See Lantry v. State of New York, 6 N.Y.3d 49, 54-55 (2005).
In 2005, defendants received complaints that Seating Solutions had not paid the prevailing wage on the Projects. In March 2006, Ocon requested payroll information from Seating Solutions for its work on the Projects. Ocon then conducted an audit of Seating Solutions' work on the Projects. As part of the audits, Ocon and Myers classified workers employed by Seating Solutions on the Projects as "ornamental ironworkers," relying on a collective bargaining agreement between Allied Building Metal Industries, Inc. and the Architectural and Ornamental Iron Workers Local Union No. 580 (the "Ironworkers' CBA"). The Ironworkers' CBA covered the same work covered by other collective bargaining agreements (including those of carpenters and the United Federation), such as metal seats, seating and bench seats. Indeed, plaintiffs concede that the Ironworkers' CBA covered the work performed on the Projects. However, the other collective bargaining agreements had lower rates 4 than the Ironworkers' CBA. After determining this classification, Ocon and Myers determined the prevailing wage rates for ornamental ironworkers based on Prevailing Rate Schedules created for ornamental ironworkers by the Commissioner and DOL employees. According to plaintiffs, the Commissioner and DOL did not perform any independent inquiry into the wages actually paid for similar work in the relevant localities, relying instead on the collective bargaining agreements "of established trade unions." Plaintiffs maintain that defendants did not contact the United Federation for this purpose because it did not consider it to be a "bona fide labor organization," but merely an invalid union "concocted" by Suprina.
Relying on the Ironworkers' CBA and the rate for ornamental ironworkers listed on the Prevailing Rate Schedules, the DOL determined that Seating Solutions had underpaid prevailing wages and supplements to its workers on the Projects by more than $300,000. In November 2008, following a hearing, at which plaintiffs appeared with counsel, an administrative law judge issued a Report and Recommendation (the "R&R") determining that Seating Solutions violated the prevailing wage law and was required to pay damages, interest, and penalties. In April 2009, the Commissioner adopted the R&R. In May 2009, plaintiffs brought an Article 78 proceeding in New York State court challenging the DOL's determination.
On April 22, 2010, before a decision by the Second Department in the Article 78 proceeding, plaintiffs commenced this action, asserting various claims, of which the following remain: (1) violation of substantive due process; (2) violation of equal protection; and (3) violation of rights under the NLRA.*fn1
Thereafter, on April 27, 2010, the Second Department confirmed the DOL's determination, holding that the DOL's use of the Ironworkers' CBA for trade classification purposes was supported by substantial evidence and was not unreasonable. See R.I., Inc. v. N.Y. Dep't of Labor, 72 A.D.3d 1098, 1099 (2d Dep't 2010). In reaching its decision, the Second Department concluded that "the record demonstrates that the [DOL] gave due consideration to the nature of the work performed and relevant collective bargaining agreements. Consequently, [the DOL's] determination as to trade classification was not unreasonable." Id. The New York Court of Appeals denied leave to appeal. See R.I., Inc. v. N.Y. Dep't of Labor, 17 N.Y.3d 703 (2011).
A. Motion for Summary Judgment ...