Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Application of New York Independent Contractors Alliance

Supreme Court, New York County

July 18, 2013

In the Matter of the Application of New York Independent Contractors Alliance, on behalf of its Employer Members, and LOCAL 175, UNITED PLANT AND PRODUCTION WORKERS, IUJAT, Petitioners, For an Order and Judgment Under and Pursuant to Article 78 of the CPLR and for other relief
v.
John C. Liu, Jr., as Comptroller of the City of New York, HIGHWAY AND STREET LABORERS LOCAL UNION 1010, SHEET ASPHALT WORKERS LOCAL UNION 1018, and GENERAL CONTRACTORS ASSOCIATION OF NEW YORK, Respondents.

For Petitioners John D. D'Ercole Esq. and Alan M. Pollack Esq. Robinson Brog Leinwand Greene Genovese & Gluck P.C.

For Respondent Liu Jane E. Andersen, Assistant Corporation Counsel

For Respondents Highway and Street Laborers Local Union 1010 and Sheet Asphalt Workers Local Union 1018 Isaac Glovinsky Esq. and Barbara S. Mehlsack Esq. Gorlick, Kravitz & Listhaus P.C.

Lucy Billings, J.

Respondent Comptroller of the City of New York and two respondent labor unions have moved to dismiss these two proceedings that challenge the prevailing wage schedules the Comptroller set for roadbuilders and pavers employed in public works projects in the City during fiscal years 2011 and 2012. Since the second, more recent petition incorporates the petition and supporting affidavits and exhibits in the first proceeding, the court cites principally to the record in the second proceeding.

I. THE PREVAILING WAGE LAWS

The New York Constitution, Article I, § 17, requires contractors engaged in public projects to pay their workers, at minimum, "the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used." New York Labor Law § 220, which implements this constitutional mandate, similarly requires public works contractors to pay their workers (1) "not less than the prevailing rate... in the same trade or occupation in the locality within the state where such public work... is to be situated, erected or used, " NY Labor Law § 220(3)(a), and (2) "supplements... in accordance with the prevailing practices in the locality." NY Labor Law § 220(3)(b); Chesterfield Assoc. v. New York State Dept. of Labor, 4 N.Y.3d 597, 599-600 (2005). See Lantry v. State of New York, 6 N.Y.3d 49, 54 (2005). Labor Law § 220(5)(e) designates respondent Comptroller the fiscal officer responsible for determining the prevailing wages for trades and occupations in the City, who bears the duty "to make a proper classification" of work into a trade or occupation. NY Labor Law § 220(3-a)(a); General Elec. Co. v. New York State Dept. of Labor, 154 A.D.2d 117, 120 (3d Dep't), aff'd, 76 N.Y.2d 946 (1990). See NY Labor Law § 220(3) and (5)(e); Lantry v. State of New York, 6 N.Y.3d at 54 & n.5; Ramos v. SimplexGrinnell LP, 796 F.Supp.2d 346, 364 (S.D.NY 2011).

Consequently, before setting the prevailing wages for a trade or an occupation, the Comptroller classifies work into a specified trade or occupation. The Comptroller's classifications for fiscal year 2011, which the Comptroller continued in fiscal year 2012, lie at the heart of the controversy in these proceedings. Having classified work into a trade or occupation, the Comptroller then sets the prevailing wages for that work using the wages set by collective bargaining agreements (CBAs) between labor unions and employers employing at least 30% "of workers, laborers or mechanics in the same trade or occupation" in the City. NY Labor Law § 220(5)(a). See Lantry v. State of New York, 6 N.Y.3d at 54-55; General Elec. Co. v. New York State Dept. of Labor, 154 A.D.2d at 119, aff'd, 76 N.Y.2d 946; Metropolitan Movers Assn, Inc. v. Liu, 95 A.D.3d 596, 599 (1st Dep't 2012); New York Tel. Co v. New York State Dept. of Labor, 272 A.D.2d 741, 744 (3d Dep't 2000).

II. DISMISSAL BASED ON PETITIONERS' LACK OF STANDING

Respondents move to dismiss both proceedings on the grounds that petitioners lack standing to maintain their challenge to the Comptroller's classification of work and his prevailing wages based on that classification. C.P.L.R. §§ 3211(a)(7), 7804(f). See C.P.L.R. § 3211(a)(3). Petitioners are a labor union, Local 175, United Plant and Production Workers, and an association of employers employing that union's members, whose CBA the Comptroller no longer used to set prevailing wages in fiscal years 2011 and 2012. If the employers' association, its member employers, the union, and its member employees all lack standing here, the Comptroller's classification of work and his prevailing wages based on that classification are insulated from judicial review. Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 812 (2003); Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 413 (1987).

A. Labor Law § 220(6)

First, respondents rely on Labor Law § 220(6), which provides that employers "may contest a determination by the fiscal officer" setting prevailing wages based on a CBA between a union and an employer. Although this provision applies only to employers, it does not limit the right to contest a determination to an employer whose CBA the Comptroller is using as the basis for prevailing wages, as opposed to employers, like petitioner New York Independent Contractors Alliance's members, whose CBA the Comptroller is not using. The only mandatory limitation is on how an employer may contest the determination successfully. "The employer must allege and prove by competent evidence, that the actual percentage of workers, laborers or mechanics" covered by the CBA being used "is below the required thirty per centum, " NY Labor Law § 220(6), "in the same trade or occupation" in the City. NY Labor Law § 220(5)(a). See New York Tel. Co v. New York State Dept. of Labor, 272 A.D.2d at 744; Liquid Asphalt Distribs. Assn. v. Roberts, 116 A.D.2d 295, 298 (3d Dep't 1986).

Here, petitioner New York Independent Contractors Alliance (NYICA) contests respondent Comptroller's determination of the prevailing wages for a trade, which the Comptroller based on the CBA between respondent unions and the employer members of respondent General Contractors Association of New York (GCA), an association of employers employing respondent unions' members. NYICA claims that these respondents' CBA does not cover 30% of the workers, laborers, and mechanics in the asphalt paving trade. NYICA further claims that the asphalt paving work of NYICA's members and the union with whom NYICA has bargained was misclassified into another trade or occupation, but that, if the work were not misclassified, their CBA and not the CBA between GCA and respondent unions would cover at least 30% of the actual trade: asphalt paving.

Labor Law § 220(6) does not prohibit that claim. That claim either is integral to contesting the determination of the prevailing wages for a trade or occupation pursuant to Labor Law § 220(6) or is outside the scope of that statute, which nowhere prohibits an employer from contesting the fiscal officer's classification of work as factually unfounded, irrational, arbitrary, or biased as petitioners maintain here. C.P.L.R. § 7803(3); Action Elec. Contrs. Co. v. Goldin, 64 N.Y.2d 213, 223 (1984); Pell v. Board of Educ., 34 N.Y.2d 222, 231 (1974); Metropolitan Movers Assn, Inc. v. Liu, 95 A.D.3d at 598-99; Soho Alliance v. New York State Liq. Auth., 32 A.D.3d 363 (1st Dep't 2006). See Goodwin v. Perales, 88 N.Y.2d 383, 392 (1996). In sum, Labor Law § 220(6) does not exclude other means or grounds for contesting the Comptroller's determinations.

Finally, assuming petitioner NYICA is limited to proceeding according to Labor Law § 220(6), respondents insist that the statute is limited to employers and therefore excludes an employers' association like NYICA. Respondents rely on a sole question posed by the General Building Contractors to New York State Senator Joseph Pisani leading up to § 220's amendments in 1983: "You give employers the right to challenge. How about employer organizations also?" Aff. of Jane E. Andersen (Dec. 1, 2011) Ex. A, at 16. This one inquiry from a body outside the legislature is hardly an equivocal declaration of the legislature's intent to exclude organizations of employers from the ambit of a statute that unambiguously and undisputedly covers employers. More importantly, this one inquiry is not enough to abrogate the well established jurisprudential principles of standing that, if standing is conferred on individual persons or entities, then standing extends to organizations composed of those individual persons or entities where, as here, they meet the following criteria. See Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d at 812; Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773-74 (1991).

First, as is undisputed by respondents, at least one of NYICA's members, if not all, since all are individual employers that Labor Law § 220(6) covers, establishes standing. New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211 (2004); Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 775; Mulgrew v. Board of Educ. of the City School Dist. of the City of NY, 75 A.D.3d 412, 413 (1st Dep't 2010); Citizens Emergency Comm. to Preserve Preserv. v. Tierney, 70 A.D.3d 576 (1st Dep't 2010). Second, the activity and interest of NYICA's membership of contracting businesses are representative of the petitions' claims that its members' work was misclassified into a trade or an occupation and that, if their work were not misclassified, their CBA and not the CBA between GCA and respondent unions would set the prevailing wages for public projects involving that work. In fact the claims here are entirely germane to the organization's core purpose: to maximize NYICA members' business and, toward that end, their opportunities to bid successfully for public projects and not be underbid by and lose work on public projects to other employers who pay lower wages. New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d at 211; Rudder v. Pataki, 93 N.Y.2d 273, 278 (1999); Aeneas McDonald Police Benevolent Assn. v. City of Geneva, 92 N.Y.2d 326, 331 (1998); Mulgrew v. Board of Educ. of the City School Dist. of the City of NY, 75 A.D.3d at 413.

This purpose is precisely one of the interests Labor Law § 220 is intended to protect. The statute "seeks to equalize competing contractors' labor costs." Chesterfield Assoc. v. New York State Dept. of Labor, 4 N.Y.3d at 601. See Brian Hoxie's Painting Co. v. Cato-Meridian Cent. School Dist., 76 N.Y.2d 207, 212 n.2 (1990); Action Elec. Contrs. Co. v. Goldin, 64 N.Y.2d at 222. The organizational petitioner thus shows that it represents and will promote the interests and objectives that the petitions seek to effect and, reciprocally, maintains a stake in the petitions' adjudication. New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d at 211; Rudder v. Pataki, 93 N.Y.2d at 278; Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d 579, 587 (1998); Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 772, 775.

Finally, nothing indicates that the relief requested requires further participation by NYICA's individual members. New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d at 211; Aeneas McDonald Police Benevolent Assn. v. City of Geneva, 92 N.Y.2d at 331; Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 775; Mulgrew v. Board of Educ. of the City School Dist. of the City of NY, 75 A.D.3d at 413. The merits of petitioners' claims may be determined without exploring the individual circumstances of petitioners' members. E.g., Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v. Westchester County, 35 A.D.3d 592, 594 (2d Dep't 2006).

B. New York Constitution Article I, § 17

Labor Law § 220(6) does not authorize petitioner union or its members to challenge prevailing wage determinations and hence does not confer standing on these workers or their organization to maintain their challenge here. E.g., International Assn. of Bridge, Structural & Ornamental Iron Workers, Local Union No. 6, AFL-CIO v. State of New York, 280 A.D.2d 713, 715-16 (3d Dep't 2001). Nevertheless, their interests in reclassifying their asphalt paving work into a trade, extending their CBA's coverage over at least 30% of the trade, so that their CBA is used to set the prevailing wages for public projects, is fully consistent with the interests protected by New York Constitution, Article I, § 17. It requires contractors engaged in public projects to pay their workers the prevailing wages in the same trade or occupation. Petitioner union and its membership claim that contractors on public projects currently do not pay their asphalt pavers the prevailing wages in that trade, but, if asphalt pavers were reclassified into a trade, they would be paid the prevailing wages for that trade.

Petitioner union and its members, by alleging that respondent Comptroller has misclassified asphalt pavers into another trade or occupation, so they are paid less than the actual prevailing wages for asphalt paving, show the harmful effect of the Comptroller's determination on them. Local 363, Intl. Bhd. of Elec. Workers v. New York State Dept. of Labor, 230 A.D.2d 440, 443-44 (3d Dep't 1997). See New York Tel. Co v. New York State Dept. of Labor, 272 A.D.2d at 743. Being paid less than the actual prevailing wages for the work is the principal injury the prevailing wage laws are intended to remedy. E.g., Brian Hoxie's Painting Co. v. Cato-Meridian Cent. School Dist., 76 N.Y.2d at 212 n.2; Beltron Constr. Co. v. McGowan, 260 A.D.2d 870, 871-72 (3d Dep't 1999). The Comptroller's "mission is to ensure that workers are paid the correct wage." Lantry v. State of New York, 6 N.Y.3d at 56. See A. Uliano & Son Ltd. v. New York State Dept. of Labor, 97 A.D.3d 664, 666 (2d Dep't 2012); Beltron Constr. Co. v. McGowan, 260 A.D.2d at 873. Nothing in Article I, § 17, manifests a legislative intent negating workers' rights to contest a prevailing wage determination and to effect a remedy that secures the prevailing wage owed to them, Bucci v. Village of Port Chester, 22 N.Y.2d 195, 201 (1968); General Elec. Co. v. New York State Dept. of Labor, 154 A.D.2d at 119, aff'd, 76 N.Y.2d 946; P & T Iron Works v. Talisman Contr. Co., Inc., 18 A.D.3d 527, 528 (2d Dep't 2005); E. Williamson Roofing & Sheet Metal Co., Inc. v. Town of Parish, 139 A.D.2d 97, 103-104 (4th Dep't 1988), as "necessary to the accomplishment of the Legislature's mandate to ensure that workers receive that prevailing wage." General Elec. Co. v. New York State Dept. of Labor, 154 A.D.2d at 121, aff'd, 76 N.Y.2d 946. See New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d at 211; Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d at 587; Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 773-74.

Just as employers maintain standing under Labor Law § 220(6) if a prevailing wage determination injures them, likewise, if a prevailing wage determination injures employees, they maintain standing under New York Constitution Article I, § 17, to pursue these proceedings. Just as petitioner NYICA establishes standing if NYICA's employer members establish standing, so, too, if the employee members of petitioner union establish standing, petitioner union establishes standing, as the union membership's interest in securing the highest wages and the most work for members is fully consistent with the relief sought by the petitions. New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d at 211; Rudder v. Pataki, 93 N.Y.2d at 278; Aeneas McDonald Police Benevolent Assn. v. City of Geneva, 92 N.Y.2d at 331; Mulgrew v. Board of Educ. of the City School Dist. of the City of NY, 75 A.D.3d at 413.

C. Injury to Petitioners' Members

Respondents claim that, even if the Labor Law provides a legal basis for NYICA's standing, NYICA's members fail to allege any injury from the Comptroller's determination of prevailing wages. Certainly one type of injury against which the prevailing wage laws are intended to protect is workers "being induced, or obliged, to accept wages below the prevailing rate from a public employer." Bucci v. Village of Port Chester, 22 N.Y.2d at 201. See Brian Hoxie's Painting Co. v. Cato-Meridian Cent. School Dist., 76 N.Y.2d at 212 n.2; A. Uliano & Son Ltd. v. New York State Dept. of Labor, 97 A.D.3d at 666; Beltron Constr. Co. v. McGowan, 260 A.D.2d at 871-72; Ramos v. SimplexGrinnell LP, 796 F.Supp.2d at 366. Although NYICA's members are employers, not workers, its claims, if successful, would protect asphalt pavers, whom its members employ, against lower wages for work on public projects. Currently, asphalt pavers on public projects must accept wages below the wages in asphalt pavers' CBA with NYICA members. If their CBA were the measure for the prevailing wages, the prevailing wages for asphalt pavers would be higher. Petitioners' claims seek this remedy: if asphalt pavers were not misclassified into a trade or an occupation of pavers and roadbuilders as currently, the higher wages in petitioners' CBA would be the measure for the prevailing wages. Securing these protections also promote Labor Law § 220(3)'s primary purpose "to strengthen the position of union laborers and workers in the competitive bidding process" applicable to all sizable public projects. E. Williamson Roofing & Sheet Metal Co., Inc. v. Town of Parish, 139 A.D.2d at 104. See NY Gen. Mun. Law § 103.

Since NYICA members are not the workers themselves, however, these employers obviously do not allege an injury because their workers are paid below the prevailing wages. Instead, they allege an injury because, under their CBA with asphalt pavers, the employers pay these workers above the prevailing wages, so NYICA members are underbid for public projects by other employers who pay only the lower prevailing wages. Again, these interests are the interests Labor Law § 220 is intended to protect. Id. The statute seeks both "to equalize competing contractors' labor costs, " and, through this equalization, "ensure that the winning bid on a public project is not made on the backs of the contractor's employees." Chesterfield Assoc. v. New York State Dept. of Labor, 4 N.Y.3d at 601.

In sum, NYICA members are injured not because they must pay prevailing wages that are set too high, but because the prevailing wages are set too low, causing these employers to lose work on public projects to other employers that will pay those lower wages when NYICA members do not. Brian Hoxie's Painting Co. v. Cato-Meridian Cent. School Dist., 76 N.Y.2d at 212 n.2; Action Elec. Contrs. Co. v. Goldin, 64 N.Y.2d at 222; Maraia v. Orange Regional Med. Ctr., 63 A.D.3d 1113, 1115-16 (2d Dep't 2009); E. Williamson Roofing & Sheet Metal Co., Inc. v. Town of Parish, 139 A.D.2d at 104. See New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d at 211, 214; Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d at 587; Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 779-80. Importantly, petitioners seek not to protect against competition or to reduce competition, but instead to increase competition. See Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d at 412; New York State Psychiatric Assn, Inc. v. Mills, 29 A.D.3d 1058, 1060 (3d Dep't 2006).

Consequently, the asphalt pavers in petitioner union, who work under their CBA with NYICA members, likewise do not obtain work on public projects. Petitioner union members are injured not because the wages these workers receive under their CBA are too low, but because, to obtain work on a public project, they must accept prevailing wages that are set too low, lower than the rates their employers pay. These workers also lose work on public projects to other workers who will accept those lower wages because they are comparable to the rates those other workers' employers pay.

Although a remedy for petitioner union members might be to lower the wages in their CBA, the workers need not be relegated to such a solution after they successfully negotiated higher wages, if the Comptroller unlawfully classified their trade and determined the prevailing wages based on that unlawful classification. Moreover, petitioners allege that their union members include workers who, under the Comptroller's schedule, will be excluded altogether from the required prevailing wages if these workers accept work on a public project, because:

the Comptroller's new classification unjustifiably narrows the protection of the prevailing wage law by limiting the class of protected workers solely to workers who perform production paving.... By the creation of this new classification, ... many individuals who previously were entitled to be paid prevailing wages will no longer be able to receive such wage rates.

V. Pet. (Aug. 9, 2010) Ex. 7 ¶ 20.

Respondent unions contend that NYICA fails to allege either that NYICA's members have been underbid for public projects by other employers who pay only the lower prevailing wages the Comptroller has set or that members have lost work on public projects to other employers that will pay those lower wages. In determining motions to dismiss based on lack of standing, the court accepts the allegations of the verified petitions and petitioners' affidavits as true. Rhodes v. Herz, 84 A.D.3d 1, 3 n.1 (1st Dep't 2011); Trustees of the Plumbers Local Union No. 1 Additional Sec. Benefit Fund v. City of New York, 73 A.D.3d 530, 531 (1st Dep't 2010); Hammer v. American Kennel Club, 304 A.D.2d 74, 78 (1st Dep't 2003); Shui Kam Chan v. Louis, 303 A.D.2d 151, 152 (1st Dep't 2003). To establish standing, petitioners need not specifically quantify their injury, but they must show that it is not merely speculative and is more ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.