N.Y. Indep. Contractors Alliance ex rel. Members v. Liu

• Decision Date: 18 July 2013
• Citation: 43 Misc.3d 443,2013 N.Y. Slip Op. 23462,981 N.Y.S.2d 246
• Parties: In the Matter of the Application of NEW YORK INDEPENDENT CONTRACTORS ALLIANCE, on behalf of its EMPLOYER MEMBERS, and Local 175, United Plant and Production Workers, IUJAT, Petitioners, for an Order and Judgment Under and Pursuant to Article 78 of the CPLR and for other relief v. John C. LIU, Jr., as Comptroller of the City of New York, Highway and Street Laborers Local Union 1010, Sheet Asphalt Workers Local Union 1018, and General Contractors Association of New York, Respondents.
• Court: New York Supreme Court

43 Misc.3d 443

981 N.Y.S.2d 246

2013 N.Y. Slip Op. 23462

In the Matter of the Application of NEW YORK INDEPENDENT CONTRACTORS ALLIANCE, on behalf of its EMPLOYER MEMBERS, and Local 175, United Plant and Production Workers, IUJAT, Petitioners, for an Order and Judgment Under and Pursuant to Article 78 of the CPLR and for other relief

v.John C. LIU, Jr., as Comptroller of the City of New York, Highway and Street Laborers Local Union 1010, Sheet Asphalt Workers Local Union 1018, and General Contractors Association of New York, Respondents.

Supreme Court, New York County, New York.

July 18, 2013.

John D. D'Ercole Esq. and Alan M. Pollack Esq., Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York, for Petitioners.

Jane E. Andersen, Assistant CorporationCounsel, New York, for Respondent Liu.

Isaac Glovinsky Esq. and Barbara S. Mehlsack Esq., Gorlick, Kravitz & Listhaus P.C., New York, for Respondents Highway and Street Laborers Local Union 101 and Sheet Asphalt Workers Local Union 1018.

LUCY BILLINGS, J.

Respondent Comptroller of the City of New York and two respondent labor unions have moved to dismiss these two proceedings that challenge the prevailing wage schedules the Comptroller set for roadbuilders and pavers employed in public works projects in the City during fiscal years 2011 and 2012.Since the second, more recent petition incorporates the petition and supporting affidavits and exhibits in the first proceeding, the court cites principally to the record in the second proceeding.

I.THE PREVAILING WAGE LAWS

The New York Constitution, Article I, § 17, requires contractors engaged in public projects to pay their workers, at minimum, “the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used.”New York Labor Law § 220, which implements this constitutional mandate, similarly requires public works contractors to pay their workers (1)“not less than the prevailing rate ... in the same trade or occupation in the locality within the state where such public work ... is to be situated, erected or used,”N.Y. Labor Law § 220(3)(a), and (2)“supplements ... in accordance with the prevailing practices in the locality.”NY Labor Law § 220(3)(b);Chesterfield Assoc. v. New York State Dept. of Labor,4 N.Y.3d 597, 599–600, 797 N.Y.S.2d 389, 830 N.E.2d 287(2005).SeeLantry v. State of New York,6 N.Y.3d 49, 54, 810 N.Y.S.2d 729, 844 N.E.2d 276(2005).Labor Law § 220(5)(e) designates respondent Comptroller the fiscal officer responsible for determining the prevailing wages for trades and occupations in the City, who bears the duty “to make a proper classification” of work into a trade or occupation.N.Y. Labor Law § 220(3–a)(a);General Elec. Co. v. New York State Dept. of Labor,154 A.D.2d 117, 120, 551 N.Y.S.2d 966(3d Dep't), aff'd,76 N.Y.2d 946, 563 N.Y.S.2d 764, 565 N.E.2d 513(1990).SeeN.Y. Labor Law§ 220(3) and (5)(e);Lantry v. State of New York,6 N.Y.3d at 54 & n. 5, 810 N.Y.S.2d 729, 844 N.E.2d 276;Ramos v. SimplexGrinnell LP,796 F.Supp.2d 346, 364(S.D.N.Y.2011).

Consequently, before setting the prevailing wages for a trade or an occupation, the Comptroller classifies work into a specified trade or occupation.The Comptroller's classifications for fiscal year 2011, which the Comptroller continued in fiscal year 2012, lie at the heart of the controversy in these proceedings.Having classified work into a trade or occupation, the Comptroller then sets the prevailing wages for that work using the wages set by collective bargaining agreements (CBAs) between labor unions and employers employing at least 30% “of workers, laborers or mechanics in the same trade or occupation” in the City.N.Y. Labor Law § 220(5)(a).SeeLantry v. State of New York,6 N.Y.3d at 54–55, 810 N.Y.S.2d 729, 844 N.E.2d 276;General Elec. Co. v. New York State Dept. of Labor,154 A.D.2d at 119, 551 N.Y.S.2d 966,aff'd,76 N.Y.2d 946, 563 N.Y.S.2d 764, 565 N.E.2d 513;Metropolitan Movers Assn., Inc. v. Liu,95 A.D.3d 596, 599, 944 N.Y.S.2d 529(1st Dep't2012);New York Tel. Co. v. New York State Dept. of Labor,272 A.D.2d 741, 744, 707 N.Y.S.2d 715(3d Dep't2000).

II.DISMISSAL BASED ON PETITIONERS' LACK OF STANDING

Respondents move to dismiss both proceedings on the grounds that petitioners lack standing to maintain their challenge to the Comptroller's classification of work and his prevailing wages based on that classification.C.P.L.R. §§ 3211(a)(7),7804(f).SeeC.P.L.R. § 3211(a)(3).Petitioners are a labor union, Local 175, United Plant and Production Workers, and an association of employers employing that union's members, whose CBA the Comptroller no longer used to set prevailing wages in fiscal years 2011 and 2012.If the employers' association, its member employers, the union, and its member employees all lack standing here, the Comptroller's classification of work and his prevailing wages based on that classification are insulated from judicial review.Saratoga County Chamber of Commerce v. Pataki,100 N.Y.2d 801, 812, 766 N.Y.S.2d 654, 798 N.E.2d 1047(2003);Sun–Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead,69 N.Y.2d 406, 413, 515 N.Y.S.2d 418, 508 N.E.2d 130(1987).

A.Labor Law § 220(6)

First, respondents rely on Labor Law § 220(6), which provides that employers “may contest a determination by the fiscal officer” setting prevailing wages based on a CBA between a union and an employer.Although this provision applies only to employers, it does not limit the right to contest a determination to an employer whose CBA the Comptroller is using as the basis for prevailing wages, as opposed to employers, like petitioner New York Independent Contractors Alliance's members, whose CBA the Comptroller is not using.The only mandatory limitation is on how an employer may contest the determination successfully.“The employer must allege and prove by competent evidence, that the actual percentage of workers, laborers or mechanics” covered by the CBA being used “is below the required thirty per centum,”N.Y. Labor Law § 220(6), “in the same trade or occupation” in the City.N.Y. Labor Law § 220(5)(a).SeeNew York Tel. Co. v. New York State Dept. of Labor,272 A.D.2d at 744, 707 N.Y.S.2d 715;Liquid Asphalt Distribs. Assn. v. Roberts,116 A.D.2d 295, 298, 501 N.Y.S.2d 483(3d Dep't1986).

Here, petitioner New York Independent Contractors Alliance (NYICA) contests respondent Comptroller's determination of the prevailing wages for a trade, which the Comptroller based on the CBA between respondent unions and the employer members of respondentGeneral Contractors Association of New York(GCA), an association of employers employing respondent unions' members.NYICA claims that these respondents' CBA does not cover 30% of the workers, laborers, and mechanics in the asphalt paving trade.NYICA further claims that the asphalt paving work of NYICA's members and the union with whom NYICA has bargained was misclassified into another trade or occupation, but that, if the work were not misclassified, their CBA and not the CBA between GCA and respondent unions would cover at least 30% of the actual trade: asphalt paving.

Labor Law § 220(6) does not prohibit that claim.That claim either is integral to contesting the determination of the prevailing wages for a trade or occupation pursuant to Labor Law § 220(6) or is outside the scope of that statute, which nowhere prohibits an employer from contesting the fiscal officer's classification of work as factually unfounded, irrational, arbitrary, or biased as petitioners maintain here.C.P.L.R. § 7803(3);Action Elec. Contrs. Co. v. Goldin,64 N.Y.2d 213, 223, 485 N.Y.S.2d 241, 474 N.E.2d 601(1984);Pell v. Board of Educ.,34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321(1974);Metropolitan Movers Assn., Inc. v. Liu,95 A.D.3d at 598–99, 944 N.Y.S.2d 529;Soho Alliance v. New York State Liq. Auth.,32 A.D.3d 363, 821 N.Y.S.2d 31(1st Dep't2006).SeeGoodwin v. Perales,88 N.Y.2d 383, 392, 646 N.Y.S.2d 300, 669 N.E.2d 234(1996).In sum, Labor Law § 220(6) does not exclude other means or grounds for contesting the Comptroller's determinations.

Finally, assuming petitioner NYICA is limited to proceeding according to Labor Law § 220(6), respondents insist that the statute is limited to employers and therefore excludes an employers' association like NYICA.Respondents rely on a sole question posed by the General Building Contractors to New York State SenatorJoseph Pisani leading up to § 220's amendments in 1983: “You give employers the right to challenge.How about employer organizations also?”Aff. of Jane E. Andersen (Dec. 1, 2011) Ex. A, at 16.This one inquiry from a body outside the legislature is hardly an equivocal declaration of the legislature's intent to exclude organizations of employers from the ambit of a statute that unambiguously and undisputedly covers employers.More importantly, this one inquiry is not enough to abrogate the well established jurisprudential principles of standing that, if standing is conferred on individual persons or entities, then standing extends to organizations composed of those individual persons or entities where, as here, they meet the following criteria.SeeSaratoga County Chamber of Commerce v. Pataki,100 N.Y.2d at 812, 766 N.Y.S.2d 654, 798 N.E.2d 1047;Society of Plastics Indus. v. County of Suffolk,77 N.Y.2d 761, 773–74, 570 N.Y.S.2d 778, 573 N.E.2d 1034(1991).

First, as is undisputed by respondents, at least one of NYICA's members, if not all, since all are individual employers that Labor Law § 220(6) covers, establishes standing.New York State Assn. of Nurse Anesthetists v. Novello,2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405(2004);Society of Plastics Indus. v. County of Suffolk,77 N.Y.2d at 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034;Mulgrew v. Board of Educ. of the City School Dist. of the City of NY,75...