Hull-Hazard, Inc. v. Roberts

• Decision Date: 16 July 1987
• Docket Number: INC,HULL-HAZAR
• Citation: 129 A.D.2d 348,517 N.Y.S.2d 824
• Court: New York Supreme Court — Appellate Division
• Parties: , 28 Wage & Hour Cas. (BNA) 590, 111 Lab.Cas. P 56,044 In the Matter of, et al., Petitioners, v. Lillian ROBERTS, as Commissioner of Labor of the State of New York, Respondent, and Upstate New York Council of Operating Engineers, Intervenor-Respondent.

Page 824

517 N.Y.S.2d 824

129 A.D.2d 348, 28 Wage & Hour Cas. (BNA) 590,

111 Lab.Cas. P 56,044

In the Matter of HULL-HAZARD, INC., et al., Petitioners, v. Lillian ROBERTS, as Commissioner of Labor of the State of

New York, Respondent,

and

Upstate New York Council of Operating Engineers,

Intervenor-Respondent.

Supreme Court, Appellate Division,

Third Department.

July 16, 1987.

Bryant, O'Dell & Basso (La Verne F. O'Dell, of counsel), Syracuse, for petitioners.

Robert Abrams, Atty. Gen. (Andrew Schulz, of counsel), Albany, for respondent.

Blitman & King (Donald T. Oliver, of counsel), Syracuse, for intervenor-respondent.

Before MAHONEY, P.J., and CASEY, YESAWICH, LEVINE and HARVEY, JJ.

MAHONEY, Presiding Justice.

Petitioner Hull-Hazard, Inc. entered into a public works contract with the Department of Transportation for the painting and rehabilitation of several bridges along Interstate Route 81 outside the City of Syracuse in Onondaga County. In conjunction with the project, Hull-Hazard hired Albert Redmond. Redmond subsequently filed a complaint with the Department of Labor alleging that he was not paid iron workers' wages for work performed in tying steel rods. After an investigation, the Department of Labor charged Hull-Hazard with underpayment of wages and with improperly computing overtime for its employees. After a hearing, respondent concluded that Hull-Hazard had willfully underpaid wages to Redmond and another employee. Further, respondent found that petitioner Hull Corporation, because of its close affiliation with Hull-Hazard, should be held jointly liable with Hull-Hazard.

Petitioners commenced this CPLR article 78 proceeding seeking to set aside respondent's determination. Supreme Court ruled on a question of statutory construction and transferred the remainder of the proceeding to this court. Petitioners appeal from Supreme Court's ruling.

Initially, we note that, where a substantial evidence question is presented which necessitates transfer to this court, Supreme Court is authorized to pass on objections in point of law (see, CPLR 7804). An objection in point of law is not any legal issue raised in the proceeding, but is limited to threshold objections of the kind listed in CPLR 3211(a) which are capable of disposing of the case without reaching the merits (see, Matter of Hop-Wah v. Coughlin, 118 A.D.2d 275, 504 N.Y.S.2d 806, revd. on other grounds 69 N.Y.2d 791, 505 N.E.2d 625, 513 N.Y.S.2d 115). Here, no objections in point of law were interposed. Thus, there was no authority for Supreme Court to pass on the issue of statutory construction before transferring the proceeding to this court.

Turning to the merits, petitioners challenge respondent's conclusion that they improperly computed overtime pay for its employees. Labor Law § 220(2) states that:

Each contract to which the state or a public benefit corporation or a municipal corporation or a commission appointed pursuant to law is a party and which may involve the employment of laborers, workmen or mechanics shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor * * * shall be permitted or required to work more than eight hours in any one calendar day or more than five days in any one week * * *.

The statute goes on to provide that a contractor may obtain a dispensation permitting work during additional hours or days, but states that:

Whenever such a dispensation is granted, all work in excess of eight hours per day and five days per week shall be considered overtime work, and the laborers, workmen and mechanics performing such work shall be paid a premium wage commensurate with the premium wages prevailing in the area in which the work is performed (Labor Law § 220).

Hull-Hazard received dispensation, but admits that its policy was to pay overtime on the sixth day of work only if the employee worked 40 hours for the week. The language of the statute requiring overtime pay for "all work in excess of eight hours per day and five days per week" (emphasis supplied) would appear to support Hull-Hazard's position. However, the lead part of the statute prohibiting overtime defines the term as "more than eight hours in any one calendar day or more than five days in any one week" (emphasis supplied). Under this definition, Hull-Hazard's policy would be unlawful. Statutes should be construed in a manner which furthers their objective. The overtime pay provision of Labor Law § 220(2) was obviously intended to complement the primary provision that overtime would not be allowed absent special dispensation. This, along with the fact that the statute was intended to benefit the worker (see, Austin v. City of New York, 258 N.Y. 113, 117, 179 N.E. 313; Matter of Armco Drain & Metal Prods. v. Moore, 285 App.Div. 236, 239, 136 N.Y.S.2d 242), convinces us that respondent properly found that Hull-Hazard's overtime policy violated Labor Law § 220(2).

Next, respondent found that Hull-Hazard violated Labor Law § 220(3) which requires that workers on public works projects be paid not less than "the prevailing rate of wages", which term is defined 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" (Labor Law § 220). Redmond and another individual were hired as laborers. However, they contended that they were doing some job duties normally assigned to ironworkers, specifically the tying of steel rods. The ironworker rate is higher than the laborer rate. The evidence indicates that the two workers were paid for some hours at the laborer rate and for other hours at the ironworker rate. Both sides offered proof on the issue of whether the job of tying steel rods on a renovation project is performed by laborers or ironworkers. It was for respondent to weigh the contradictory evidence, and she chose not to credit the testimony and evidence offered by Hull-Hazard. Since there was substantial evidence to support respondent's determination that the two workers should have been paid at the ironworker rate, her conclusion that Hull-Hazard violated Labor Law § 220(3) cannot be disturbed.

Next, Hull-Hazard claims that respondent erred in finding the violations to be willful. Such finding is significant because a contractor who has been found in willful violation of the statutes at issue herein on two occasions in a six-year period becomes ineligible to bid on a public works contract for five years (Labor Law § 220-b). We have recently held that the term willful " 'does not imply a criminal intent to defraud, but rather requires that acted knowingly, intentionally or deliberately' " (Matter of Cam-Ful Indus. v. Roberts, 128 A.D.2d 1006, 513 N.Y.S.2d 539, 540 quoting Matter of Valvo 83 A.D.2d 344, 346, 445 N.Y.S.2d 292, affd. 57 N.Y.2d 116, 454 N.Y.S.2d 695, 440 N.E.2d 780). Regarding the overtime violation, as discussed earlier, Hull-Hazard's policy was technically in compliance with the overtime provision of Labor Law § 220(2). It was only after construing the statute as a whole and considering the purpose of the statute that we concluded that Hull-Hazard violated the statute. Thus, the violation can hardly be said to have been willful and respondent's determination otherwise must be set aside. Respondent also found that Hull-Hazard knew or should...