| Matter of Earth Tech, Inc. v Angello |
| 2008 NY Slip Op 00308 [47 AD3d 1080] |
| January 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Earth Tech, Inc., Petitioner, v Linda Angello, asCommissioner of Labor, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Seth Kupferberg of counsel), forrespondent.
Peters, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to LaborLaw §§ 220 and 220-b) to review a determination of respondent which found thatpetitioner failed to pay prevailing wages and supplements.
The City of Glens Falls, Warren County, was under a mandate by the New York StateDepartment of Health to filter its water supply. Rather than follow the traditional biddingprocess, the City sought to contract with one or more private entities for both the design andconstruction of a new water treatment plant as well as the operation and maintenance of itsexisting wastewater treatment plant and collection systems. At that time, the operation and themaintenance of such existing facilities was being performed by city employees who had theirwages and benefits established pursuant to a collective bargaining agreement between the Cityand the Civil Service Employee's Association (hereinafter CSEA).
Special legislation was thereafter proposed, allowing the City to forgo the mandated biddingprocess. Included therein were provisions protecting city workers who were already operatingand maintaining these facilities and a requirement that every agreement entered into between theCity and a private entity for the construction of such facility pay prevailing wages [*2]pursuant to Labor Law § 220. The City issued a request forproposal to solicit bids for these purposes. Nowhere did it indicate that a successful bidder wouldbe required to pay prevailing wages on this public contract under the Labor Law. On May 17,2000, before a determination on the request for proposal was made but while the speciallegislation was still pending, petitioner entered into a memorandum of understanding with theCity and CSEA whereby it agreed, among other things, that if it were awarded the operation andmaintenance contract, it would "provide substantially equivalent compensation and benefits" tothose workers who transferred to petitioner. On or about December 20, 2000, petitioner and theCity entered into a contract for the operation and maintenance of the facilities and, as reflected inthe earlier memorandum of understanding, then entered into a collective bargaining agreement toprovide for compensation and benefits equivalent to that provided under the prior collectivebargaining agreement. On July 30, 2002, the special legislation was enacted as the Laws of 2002(ch 206). As here relevant, it mandated the payment of prevailing wages pursuant to Labor Law§ 220 for construction, and further provided that "any [City] employee . . .then performing operation or maintenance work at any existing water filtration or wastewatertreatment facility . . . shall be offered employment by any private entity assumingoperation or maintenance responsibilities at such facility at no less than the wage then beingearned by such employee and with equivalent benefits" (L 2002, ch 206, § 6).
After a hearing initiated by the Department of Labor concerning whether petitioner compliedwith the requirements of Labor Law § 220 as it pertains to the wages and benefits it paid toformer city workers now employed by petitioner in connection with the operation andmaintenance work, it was found that Labor Law article 8 was applicable. Neither the language ofthe special legislation nor its legislative history indicated that it was "intended to silentlysupercede the strong and longstanding public policy of requiring the payment of prevailing wagesand benefits pursuant to Labor Law § 220." The Hearing Officer further concluded that theseparate mention of maintenance work in the special legislation was not intended to supplantLabor Law § 220 for this type of public work but "to ensure that continued employment beoffered . . . to existing City employees . . . , at a rate not less than theythen enjoyed" (emphasis omitted). Reasoning that a private employee performing such workwould be entitled to prevailing wages under Labor Law § 220, he found that suchpayments were required to these workers as well. Respondent adopted the Hearing Officer'sreport and recommendation, thus prompting this proceeding.
The determination that Labor Law § 220 applies should be confirmed in light of itsstrong public policy to be "liberally construed to effectuate its beneficent purposes" (Matterof Bridgestone/Firestone, Inc. v Hartnett, 175 AD2d 495, 496 [1991]; see NY Const,art I, § 17; Labor Law § 220 [3]; Matter of Lantry v State of New York, 6 NY3d 49, 54 [2005),which is to ensure that contractors engaged in public works projects pay wages and supplementsat a rate "not less than the prevailing rate for a day's work in the same trade or occupation in thelocality within the state where such public work . . . is performed" (Labor Law§ 220 [3]). To discern the legislative underpinnings of the special legislation by the wordsutilized (see Matter of Wiley v City ofWatertown Fire Dept., 39 AD3d 975, 976 [2007], lv dismissed 9 NY3d 948[2007]; Matter of Rodriguez v Burn-Brite Metals Co., 300 AD2d 904, 905 [2002],affd 1 NY3d 553 [2003]), we view the statute as a whole and consider each section inreference to one another (see Matter ofNotre Dame Leasing v Rosario, 2 NY3d 459, 464 [2004]; People v Mobil OilCorp., 48 NY2d 192, 199 [1979]). As "[a]ll new laws are supposed to be enacted withknowledge . . . of the existence and scope of the old laws" (Davis v SupremeLodge, Knights of Honor, 165 NY 159, 166 [1900]), there must be a clear expression that achange was sought to be effected or that "the repugnancy between the two enactments is not only[*3]irreconcilable, but also clear and convincing, and followingnecessarily from the language used" (id.).
Nowhere in the special legislation did it state that it supercedes the constitutionally protectedprevailing wage and supplement requirements embodied in Labor Law § 220 (seeMatter of Lantry v State of New York, 6 NY3d at 54). In fact, it clarified that "[e]veryagreement entered into between the [C]ity . . . and a private entity, . . .for the construction of a water filtration or wastewater treatment facility, shall require thepayment of all applicable prevailing wages." The contention that construction contracts andoperation and maintenance contracts should be treated differently has no merit when there is anexpressed overriding concern that job and wage security should be ensured to those workerswhom the City had employed prior to a change in the operation or maintenance of these existingfacilities. Finding petitioner's reading of this special legislation to be overbroad and repugnant tothe constitutional imprimatur embodied in Labor Law article 8 to protect the hours, wages andsupplements of those city workers engaged in public works (see Davis v Supreme Lodge,Knights of Honor, 165 NY at 166), we confirm respondent's determination as consistent withthe statutory language, legislative history and public policy.
Cardona, P.J., Spain, Rose and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.