| Matter of Pascazi v Gardner |
| 2013 NY Slip Op 03135 [106 AD3d 1143] |
| May 2, 2013 |
| Appellate Division, Third Department |
| In the Matter of Michael S. Pascazi,Petitioner, v Colleen C. Gardner, as Commissioner of Labor,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Seth Kupferberg ofcounsel), for respondent.
Rose, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toLabor Law § 220) to review two determinations of respondent which found,among other things, that petitioner was a shareholder of a corporation that failed to payprevailing wages and supplements.
Petitioner was the president and 50% owner of Fiber Optek InterconnectCorporation, a fiber optic cable installer. After an investigation in response to complaintsfrom Fiber Optek employees, the Department of Labor's Bureau of Public Work chargedFiber Optek, among others, with failing to pay prevailing wages for work performed forthe Edwin Gould Academy-Ramapo Union Free School District. After a hearing, FiberOptek and others were also charged with violating the prevailing wage law on eight otherpublic works projects. Following a hearing on those charges, the Hearing Officer issuedtwo determinations finding, among other things, that Fiber Optek willfully violated theprevailing wage law on all but one of the projects at issue. Respondent adopted thefindings and petitioner commenced this CPLR article 78 proceeding seeking to annul thedeterminations.
Initially, petitioner contends that the prevailing wage law is preempted by the federal[*2]Telecommunications Act and Labor ManagementRelations Act. We cannot agree. Generally, a federal law may supersede a state lawwhere Congress explicitly declares preemption as its intent (see Sprietsma v MercuryMarine, 537 US 51, 62-63 [2002]; Balbuena v IDR Realty LLC, 6 NY3d 338, 356 [2006]), orwhere the federal law is " 'so pervasive as to make reasonable the inference that Congressleft no room for the [s]tates to supplement it' " (Fidelity Fed. Sav. & Loan Assn. v Dela Cuesta, 458 US 141, 153 [1982], quoting Rice v Santa Fe Elevator Corp.,331 US 218, 230 [1947]; accord Cipollone v Liggett Group, Inc., 505 US 504,516 [1992]). The Court of Appeals has observed, however, that "[t]he presumptionagainst preemption is especially strong with regard to laws that affect the states' historicpolice powers over occupational health and safety issues" (Balbuena v IDR RealtyLLC, 6 NY3d at 356; see Metropolitan Life Ins. Co. v Massachusetts, 471US 724, 756 [1985]; De Canas v Bica, 424 US 351, 356 [1976]).
While the Telecommunications Act is intended to exclusively govern the field oftelecommunications service (see 47 USC § 253 [a]), the prevailing wagelaw is a minimum labor standard (see Labor Law § 220; see e.g.Metropolitan Life Ins. Co. v Massachusetts, 471 US at 755; Rondout Elec., Inc. vNYS Dept. of Labor, 335 F3d 162, 168 [2d Cir 2003], cert denied 540 US1105 [2004]). As such, it falls within the Telecommunications Act's safe harborprovision, which provides that "[n]othing in this section shall affect the ability of a [s]tateto impose, on a competitively neutral basis . . . requirements necessary to. . . protect the public safety and welfare" (47 USC § 253 [b]).Accordingly, even assuming that the Telecommunications Act applies to Fiber Optek'swork as a cable installer, as opposed to a telecommunications service provider, we findno basis to conclude that it preempts the application of the prevailing wage law.
Nor is the prevailing wage law preempted by the federal Labor ManagementRelations Act. That statute provides that federal law governs suits to enforce collectivebargaining agreements (see 29 USC § 185 [a]). While it is true that theDepartment of Labor refers to collective bargaining agreements to determine prevailingwages, those agreements are not necessarily determinative, and the rights conferred bythe prevailing wage law are independent of those conferred by such agreements (seeLivadas v Bradshaw, 512 US 107, 123-124 [1994]; Dabrowski v ABAX Inc., 64AD3d 426, 427 [2009]; Wysocki v Kel-Tech Constr. Inc., 46 AD3d 251, 251-252[2007]). Petitioner's claim that the prevailing wage law violates the dormant CommerceClause is likewise unavailing as the law applies equally to in-state and out-of-statecontractors that choose to engage in public works projects (see Matter of Senior Care Servs.,Inc. v New York State Dept. of Health, 46 AD3d 962, 966 [2007]; Hunter v Warren County Bd. ofSupervisors, 21 AD3d 622, 626 [2005]).
Nor can we agree that the awards of interest on the underpayments should bestricken. While this Court has stricken interest awards where there has been a showing ofunreasonable delay (see Matterof CNP Mech., Inc. v Angello, 31 AD3d 925, 928 [2006], lv denied 8NY3d 802 [2007]), the delay here was attributable, at least in part, to Fiber Optek'sfailure to produce payroll records for any of the projects at issue except one, theretirement of key Department of Labor personnel, ancillary proceedings commenced bypetitioner and settlement negotiations. Given these circumstances, petitioner's mereassertion that he did not control the scheduling of hearings provides us with no basis onwhich to conclude that the delay was attributable to unreasonableness by the Departmentof Labor (see Matter of D & DMason Contrs., Inc. v Smith, 81 AD3d 943, 945 [2011], lv denied 17NY3d 714 [2011]).
As for the merits, the evidence of significant discrepancies between the certifiedpayroll [*3]records that Fiber Optek submitted to theDepartment of Labor for one of the projects and the actual wages received by theemployees according to their testimony at the hearings—and as reflected in thepayroll records for that same project submitted by Fiber Optek to its generalcontractor—supports the finding that the certified records were falsified (see Matter of A. Uliano & Son.Ltd. v New York State Dept. of Labor, 97 AD3d 664, 667-668 [2012];Matter of Alca Indus. v McGowan, 258 AD2d 704, 705 [1999], lvdenied 93 NY2d 807 [1999]; Matter of Lapeka Constr. Corp. v Sweeney,236 AD2d 538, 539 [1997]).
The record also supports the determinations that the Edwin Gould Academy and theIndian Point power plant were public entities within the meaning of the prevailing wagelaw. The evidence established that Fiber Optek's contract was with the Edwin GouldAcademy-Ramapo Union Free School District, which is a municipal corporation(see General Construction Law § 66 [2]) and, as such, is a public agency(see Labor Law § 220 [2]). Although there was evidence that ownership ofthe Indian Point power plant was transferred from the New York Power Authority to aprivate firm at some point, the purchase orders and time sheets submitted by FiberOptek's employees established that Fiber Optek's work during the relevant time framewas for the Power Authority, a public agency.
We have considered petitioner's remaining contentions and find them also to lackmerit.
Peters, P.J., Stein and Egan Jr., JJ., concur. Adjudged that the determinations areconfirmed, without costs, and petition dismissed.