Lantry v. State

• Decision Date: 15 December 2005
• Citation: 844 N.E.2d 276,6 N.Y.3d 49
• Parties: In the Matter of Marke LANTRY, Doing Business as Thorough Job Architectural Construction Systems, Appellant, v. STATE of New York et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 276

844 N.E.2d 276

6 N.Y.3d 49

In the Matter of Marke LANTRY, Doing Business as Thorough Job Architectural Construction Systems, Appellant, v. STATE of New York et al., Respondents.

Court of Appeals of New York.

December 15, 2005.

Hancock & Estabrook, LLP, Syracuse (Stewart F. Hancock, Jr., Alan J. Pierce and Sonya G. Bonneau of counsel), for appellant.

Eliot Spitzer, Attorney General, New York City (Benjamin Gutman, Daniel Smirlock, M. Patricia Smith, Patrick Barnett-Mulligan and Pico Paul Ben-Amotz of counsel), for respondents.

OPINION OF THE COURT

GRAFFEO, J.

In this CPLR article 78 proceeding, a contractor challenges the methodology used by the Department of Labor to classify work for purposes of determining the appropriate prevailing wage rate to pay workers on public projects, arguing that the Department erred because it did not consider survey evidence of local contractor practices in making a trade classification. We hold that the Department need not conduct such surveys in order to classify work and conclude that the Commissioner's determination was neither arbitrary nor capricious.

Petitioner Marke Lantry, doing business as Thorough Job Architectural Construction Systems, subcontracted to install pre-glazed windows for the Ichabod Crane Central School District in Columbia County in 1997. Lantry paid his employees (who were not represented by a trade union) the glaziers' wage rate for their labor on the project. The Department's Bureau of Public Work conducted a random audit of the project and concluded that Lantry had underpaid some of his employees. With respect to the workers engaged in window installation, the Bureau asserted that they should have been compensated at the higher rate of pay for ironworkers.¹ The Bureau assessed Lantry with an underpayment of approximately $5,400 and directed the school district to withhold certain payments from him.

Lantry responded by requesting a hearing to contest the Bureau's findings. Presuming that the Department would use a "prevailing practice in the locality" approach, which relies on surveys of local contractors to determine the trade classification of workers for wage rate purposes, Lantry sought to establish that the prevalent practice in the Capital District area was for contractors to pay their employees installing preglazed windows at the glaziers' rate, rather than the ironworkers' rate.

At the hearing, the Department's principal witness was the senior public work wage investigator, who had audited Lantry's project. He testified that in classifying a particular task into the appropriate trade or occupation, the Department generally analyzes the specific nature of the work, together with collective bargaining agreements, jurisdictional agreements and past Bureau recognition. In his 16 years as a Department investigator, he indicated that he never examined the "prevailing practice" in a locale or elicited survey-type information from contractors. The witness explained that he classified the work done by Lantry's employees as ironwork after considering several factors, including the nature of the task and an agreement between ironworkers and carpenters indicating that ironworkers retained jurisdiction over the installation of metal window frames into masonry.² The Department also presented testimony that revealed that the glaziers' union had a minimal presence in the Capital District area in the mid-to-late 1990s.

In contesting the Bureau's determination that the window installation work should have been classified as ironwork, Lantry submitted the testimony of various union and nonunion glazier contractors who claimed to have consistently treated the installation of preglazed windows as glaziers' work and had paid the glaziers' rate for such labor.³ A market research consultant who had been hired by the New York State Glass Association to survey the scope of work undertaken by glazier contractors also testified. Based on statistical evidence developed from this survey, he stated that most of these contractors used glaziers to install preglazed windows, although some employed ironworkers or carpenters for such tasks.

After the administrative hearing, the hearing officer issued a report and recommendation accepting the Bureau's ironwork classification and finding of underpayment.⁴ Recognizing that the Department could rely on collective bargaining agreements in making classification determinations, the hearing officer noted that in this case the relevant agreements for glaziers and ironworkers both claimed jurisdiction over preglazed window installation. He therefore needed to examine other indices that the Department historically relied on to classify work, such as the nature of the work and pertinent jurisdictional agreements. The hearing officer accorded Lantry's survey evidence little weight, believing that the classification of work should not be dictated by statistics.

The Commissioner subsequently issued a determination and order adopting the hearing officer's findings of fact, conclusions of law and recommendations in their entirety. Lantry commenced this article 78 proceeding seeking to vacate the Commissioner's order. The Appellate Division confirmed the determination. We granted Lantry leave to appeal and now affirm.

Labor Law § 220 implements the constitutional mandate that contractors engaged in public projects pay their workers wages and supplements which "shall be not less than the prevailing rate for a day's work in the same trade or occupation in the locality within the state where such public work . . . is performed" (Labor Law § 220[3]; see also N.Y. Const., art I, § 17). The Commissioner is responsible for determining the prevailing wage rates for the various trades in each locality (see Labor Law § 220[3]).⁵ Calculation of the prevailing rate entails a two-step process. First, the Commissioner must classify the work by assigning the task performed by an employee to a specific trade or occupation (see Labor Law § 220[3-a][a]). Second, the Commissioner must ascertain the prevailing rate for that trade or occupation in the relevant locality (see Labor Law § 220[3], [5][a]).

In the early 1980s, the Commissioner fixed prevailing wage rates by performing industry surveys of the actual wages received by trade workers in each of the state's localities (see Matter of Liquid Asphalt Distribs. Assn. v. Roberts, 116 A.D.2d 295, 296, 501 N.Y.S.2d 483 [3d Dept.1986]; see also Labor Law former § 220[5]). This process, which required the Department to survey over 1,500 localities, was costly and burdensome and the Department's experience demonstrated that the prevailing wage rates that were adopted would invariably equate to collectively bargained wages. Thus, the Legislature amended the Labor Law in 1983 to authorize the Commissioner to dispense with the survey process and instead adopt the rate paid in a locality by referring to collective bargaining agreements between labor organizations and private sector employers, provided that such agreements covered at least 30% of the workers in that trade or occupation (see Labor Law § 220[5][a], [c]; see also L. 1983, ch. 447).

Nothing in section 220 of the Labor Law mandates that the Commissioner consider actual contractor practices in a locality when classifying work. To the contrary, while the statute provides a specific process for calculating the "prevailing rate of wage" (see Labor Law § 220[5][a]), it does not require a specific procedure for the Commissioner to use in evaluating the appropriate trade or occupation to assign to particular work.

Lantry argues that the Commissioner's classification of the work involved in installing preglazed windows into masonry as ironwork rather than glazier work was arbitrary and capricious. Specifically, Lantry contends that a "prevailing practice in the locality" test, based on industry survey information and contractor testimony regarding what type of workers are actually performing the task in dispute, should be the standard the Commissioner follows to classify work. Hence, Lantry asserts that the Commissioner erred in failing to credit the survey data and the testimony of the contractors that he claims confirmed that glaziers do more preglazed window installation jobs than ironworkers. We disagree.

In the absence of a statutory directive, this Court will uphold the Commissioner's methodology as long as it is not unreasonable (see Matter of Chesterfield Assoc. v. New York State Dept. of Labor, 4 N.Y.3d 597, 604, 797 N.Y.S.2d 389, 830 N.E.2d 287 [2005]). Furthermore, it is well settled that trade classifications "are a matter given to the expertise of the Department and courts are strongly disinclined to disturb them, absent a clear showing that a classification does not reflect `the nature of the work actually performed'" (Matter of General Elec. Co. v. New York State Dept. of Labor, 154 A.D.2d 117, 120, 551 N.Y.S.2d 966 [3d Dept.1990], affd. for reasons stated below 76 N.Y.2d 946, 563 N.Y.S.2d 764, 565 N.E.2d 513 [1990] [citations omitted], quoting Matter of Kelly v. Beame, 15 N.Y.2d 103, 109, 256 N.Y.S.2d 329, 204 N.E.2d 491 [1965]).

Here, the Commissioner outlined the analysis that the Department generally follows in classifying work. Although a number of factors may be relevant, where a union has obtained jurisdiction over a certain category of work through the collective bargaining process, the Department will typically adopt the classification assigned in the collective bargaining agreement. But where a dispute arises between two unions that each claim jurisdiction over the same type of work, the Department necessarily expands its review to encompass other factors, such as jurisdictional agreements, past precedent, and the inherent nature and characteristics of the work in question. In neither scenario, the Commissioner observed, would the Department rely on "a survey or comparison of sheer numbers to determine the...