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International Union of Painters & Allied Trades v. New York State Department of Labor

Supreme Court of New York, Fourth Department

February 10, 2017

INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, DISTRICT COUNCIL NO. 4, BY ITS SECRETARY-TREASURER, MARK STEVENS, INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, FINISHING TRADES INSTITUTE OF WESTERN & CENTRAL NEW YORK, BY ITS TRUSTEES MARK STEVENS, GREGORY STONER, ROBERT SINOPOLI, JEFFREY CARROLL, TODD ROTUNNO, MICHAEL DEMS, DANIEL LAFRANCE, DAN JACKSON, DOMINIC ZIRILLI, TIM MCCLUSKEY, JEFF STURTZ, FRANK HOSEK AND MARVIN PAIGE, FORNO ENTERPRISES, INC., TGR ENTERPRISES, INC., HOGAN GLASS, LLC, AJAY GLASS & MIRROR CO., THOMAS A. JERGE, AS A CITIZEN TAXPAYER, PAUL J. LEONE, AS A CITIZEN TAXPAYER, CHRISTOPHER J. POWERS, AS AN APPRENTICE ENROLLED IN PAINTERS DISTRICT COUNCIL NO. 4 GLAZIER APPRENTICESHIP PROGRAM, AND RACHEL TERHART, AS A FORMER APPRENTICE ENROLLED IN PAINTERS DISTRICT COUNCIL NO. 4 GLAZIER APPRENTICESHIP PROGRAM, PLAINTIFFS-APPELLANTS,
v.
NEW YORK STATE DEPARTMENT OF LABOR, MARIO MUSOLINO, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF LABOR AND CHRISTOPHER ALUND, DIRECTOR, BUREAU OF PUBLIC WORKS, A DIVISION OF NEW YORK STATE DEPARTMENT OF LABOR, DEFENDANTS-RESPONDENTS.

          LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOSEPH L. GUZA OF COUNSEL), ADAMS BELL ADAMS, P.C., ROCHESTER, DUKE HOLZMAN PHOTIADIS & GRESENS, LLP, AND HARRIS BEACH PLLC, PITTSFORD, FOR PLAINTIFFS-APPELLANTS.

          ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

          PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

         Appeals from an order and judgment (one paper) of the Supreme Court, Erie County (James H. Dillon, J.), entered October 22, 2015. The order and judgment, among other things, dismissed plaintiffs' complaint upon defendants' motion.

         It is hereby ORDERED that the order and judgment so appealed from is reversed on the law without costs, defendants' motion is denied, the complaint is reinstated, plaintiffs' cross motion is granted and judgment is granted in favor of plaintiffs as follows:

         It is ADJUDGED and DECLARED that Labor Law § 220 (3) (a), (b) and (3-e) apply to glazier apprentices enrolled in the DC4 Glazier Apprenticeship Program; and it is further

         ADJUDGED and DECLARED that glazing contractors may compensate apprentices registered and enrolled in the DC4 Glazier Apprenticeship Program in accordance with the applicable apprentice rates posted by defendant New York State Department of Labor on taxpayer financed projects.

         Memorandum: Plaintiffs commenced this action seeking, inter alia, a judgment declaring that Labor Law § 220 (3) (a), (b) and (3-e) apply to glazier apprentices enrolled in the DC4 Glazier Apprenticeship Program and that glazing contractors may compensate apprentices registered and enrolled in the Glazier Apprenticeship Program in accordance with the applicable apprentice rates posted by defendant New York State Department of Labor (DOL) on taxpayer financed projects. Defendants moved for dismissal of the first cause of action and for summary judgment on the remaining causes of action. Plaintiffs cross-moved for summary judgment on the complaint. Supreme Court granted defendants' motion in its entirety, concluding that the determination of the DOL "that the work in question is that of the ironworkers and not of the glaziers is not unreasonable or arbitrary or capricious." We now reverse.

         At issue on this appeal is whether defendants' interpretation of Labor Law § 220 (3-e) should be upheld. That section provides, in pertinent part, that "[a]pprentices will be permitted to work as such only when they are registered, individually, under a bona fide program registered with the [DOL]." Plaintiffs contend that this sentence permits glazier apprentices who are registered, individually, under a bona fide apprenticeship program to be paid as apprentices when performing work on a public works project even if they are performing work classified for another trade. Plaintiffs further contend that defendants are erroneously interpreting Labor Law § 220 (3-e) as requiring contractors on public works projects to pay glazier apprentices the wages of ironworker journeymen when the glazier apprentices install curtain walls, store fronts and pre-glazed windows. Although such work remains a work process of glaziers, as defined by the work curriculum promulgated and approved by the DOL, defendant Christopher Alund, Director, Bureau of Public Works, A Division of the DOL, has exercised his authority to classify that work as within the ironworkers' trade when that work is performed on public works projects (see § 220 [3-a] [a] [i]; Matter of Lantry v State of New York, 6 N.Y.3d 49, 52-59). As a result of that classification and his interpretation of section 220 (3-e), Alund has opined that "a glazier apprentice... who performs work classified as ironworker's work must be paid an ironworker's journeyman prevailing rate" because the glazier is not performing work "within the trade that is the subject of the apprenticeship program in which the apprentice is registered."

         As a preliminary matter, we agree with plaintiffs that, due to the parties' differences over the interpretation of the statute, declaratory relief will have a practical effect and thus is appropriate (see Chanos v MADAC, LLC, 74 A.D.3d 1007, 1008; see also CPLR 3001). We further agree with plaintiffs that, under the plain meaning of Labor Law § 220 (3-e), glazier apprentices may be paid the applicable apprentice rate provided that they are registered, individually, with "a" bona fide apprenticeship program that is itself registered with the DOL.

         " It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature'... As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof... In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning' " (Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 583).

         Importantly, "[t]he function of the courts is to enforce statutes, not to usurp the power of legislation, and to interpret a statute where there is no need for interpretation, to conjecture about or to add to or to subtract from words having a definite meaning, or to engraft exceptions where none exist are trespasses by a court upon the legislative domain" (McKinney's Cons Laws of NY, Book 1, Statutes § 76, Comment at 168). It is thus axiomatic that "new language cannot be imported into a statute to give it a meaning not otherwise found therein" (§ 94, Comment at 190), and "a court cannot amend a statute by inserting words that are not there" (§ 363, Comment at 525; see Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 N.Y.2d 382, 394, rearg denied 85 N.Y.2d 1033; Gawron v Town of Cheektowaga, 117 A.D.3d 1410, 1412).

         We of course agree with the dissent that, generally, "[t]he Labor Department's interpretation of a statute it is charged with enforcing is entitled to deference. The construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, ' should be upheld" (Samiento v World Yacht Inc., 10 N.Y.3d 70, 79). Here, however, we conclude that no such deference is required because defendants' interpretation "is contrary to the plain meaning of the statutory language" (Matter of Raritan Dev. Corp. v Silva, 91 N.Y.2d 98, 100; see Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459), and "this appeal does not call upon us to interpret a statute where specialized knowledge and understanding of underlying operational practices or... an evaluation of factual data and inferences to be drawn therefrom' is at stake" (Roberts v Tishman Speyer Props., L.P., 13 N.Y.3d 270, 285; see Matter of Albano v Board of Trustees of N.Y. City Fire Dept., Art. II Pension Fund, 98 N.Y.2d 548, 553, rearg denied 99 N.Y.2d 553).

         "Section 220 of the Labor Law and article I, section 17 of the New York Constitution require that laborers, workers and mechanics be paid the statutorily determined prevailing rate of wages. As originally enacted, the prevailing wage law contained no provision regulating the employment of apprentices on public works projects" (Matter of Monarch Elec. Contr. Corp. v Roberts, 70 N.Y.2d 91, 95). The language relating to apprentices was first added to section 220 (3) in 1966 and, in 1967, the Legislature added section 220 (3-e) "to expressly prohibit working as an apprentice on a public works project unless a person is individually registered in a State-approved apprenticeship program, and to regulate the allowable ratio of apprentices to journey-level workers" (id.). As now written, section 220 requires "classification of workers by status-as either journeymen or apprentices-and by expertise, as carpenters, ironworkers, roofers, etc., and [further requires] that all covered workers be paid a journeyman's ...


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