N.Y. Indep. Contractors Alliance ex rel. Emp'r Members v. Liu
| Decision Date | 19 December 2014 |
| Docket Number | 110714/2010 |
| Citation | 49 Misc.3d 478,15 N.Y.S.3d 544,2014 N.Y. Slip Op. 24434 |
| Parties | In the Matter 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 C.P.L.R 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 |
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 Corporation Counsel, New York, for Respondent Liu.
Barbara S. Mehlsack, Esq., Gorlick, Kravitz & Listhaus, P.C., New York, for Respondents Highway and Street Laborers Local Union 1010 and Sheet Asphalt Workers Local Union 1018.
Mark A. Rosen, Esq., McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, for Respondent General Contractors Association of New York.
Petitioners in these proceedings challenge the prevailing wage schedules that the New York City Comptroller set for roadbuilders and pavers employed in public works projects in the city during fiscal years 2011, 2012, and 2013. Since petitioners' third, most recent petition incorporates the petitions and the supporting affidavits and exhibits in the two previous proceedings, this decision addresses all three petitions, but cites principally to the record in the third proceeding.
Contractors engaged in public projects are required to pay their workers “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.” N.Y. Const. art. I, § 17. In accordance with this constitutional mandate, public works contractors must pay their workers “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 “supplements ... in accordance with the prevailing practices in the locality.” N.Y. Labor Law § 220(3)(b). See Lantry v. State of New York, 6 N.Y.3d 49, 54, 810 N.Y.S.2d 729, 844 N.E.2d 276 (2005) ; 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). Respondent Comptroller is responsible for classifying work into a specified trade or occupation and determining its prevailing wage, set by the collective bargaining agreements of 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(3–a)(a)(i) and (5)(a) and (e) ; Lantry v. State of New York, 6 N.Y.3d at 54–55, 810 N.Y.S.2d 729, 844 N.E.2d 276 ; Metropolitan Movers Assn., Inc. v. Liu, 95 A.D.3d 596, 599, 944 N.Y.S.2d 529 (1st Dept.2012) ; General Elec. Co. v. New York State Dept. of Labor, 154 A.D.2d 117, 119, 551 N.Y.S.2d 966 (3d Dept.1990), aff'd, 76 N.Y.2d 946, 563 N.Y.S.2d 764, 565 N.E.2d 513 (1990).
The Comptroller initiated a reclassification of the previously separate classifications of asphalt pavers and of concrete pavers into a single trade of Paver and Roadbuilder–Laborer for fiscal year 2011, running from July 1, 2010, to June 30, 2011. Within the reclassified trade of paver and roadbuilder, the Comptroller designated two subclassifications, production paving and nonproduction/utility paving, and then set the prevailing wage for this classification and its two subclassifications using the collective bargaining agreement (CBA) between respondents Highway and Street Laborers Local Union 1010 and General Contractors Association of New York (GCA). The Comptroller readopted this new trade classification of paver and roadbuilder and prevailing wage schedule for this classification in fiscal years 2012 and 2013, effective from July 1 of the year through June 30 of the following year.
Petitioners may challenge respondent Comptroller's trade classification (1) as violative of New York Constitution Article I, § 17, or Labor Law § 220(5)(a)'s requirement that the prevailing wage be set according to the CBA of employers employing 30% of the employees in the trade or (2) as arbitrary, irrational, and without a factual basis. C.P.L.R. § 7803(3). Petitioners are a labor union, Local 175, United Plant and Production Workers, and New York Independent Contractors Alliance (NYICA), an association of employers employing Local 175 members, whose CBA the Comptroller did not use to set prevailing wages in fiscal years 2011, 2012, and 2013.
Petitioners challenge respondent Comptroller's determination of the prevailing wages for the trade of roadbuilding and paving, which the Comptroller based on the CBA between respondent unions and the employer members of respondent GCA. Petitioners contend that the Comptroller's classification, which combined the previously separated trades of asphalt paving and concrete paving into a single trade of roadbuilding and paving, with subclassifications of production paving and utility paving, as not reflecting the different nature of paving work when using asphalt versus concrete. Lantry v. State of New York, 6 N.Y.3d at 55, 810 N.Y.S.2d 729, 844 N.E.2d 276. Petitioners further claim that, if the work was not misclassified, the CBA of respondent unions and employers would not cover 30% of the workers, laborers, and mechanics in the asphalt paving trade, but petitioners' CBA would.
Petitioner union and its members maintain an interest in nullifying the newly created Paver and Roadbuilder–Laborer classification and reclassifying the affected workers because this new classification has placed workers performing asphalt paving for each NYICA contractor under a CBA with Local 175 at a substantial competitive disadvantage. NYICA members are injured because prevailing wages are set too low, causing these employers to lose public projects to other employers paying the lower prevailing wages than NYICA members, and causing their employees to lose these jobs as well.
Petitioners thus allege tangible injury and threat of injury from respondent Comptroller's challenged actions. New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 214–15, 778 N.Y.S.2d 123, 810 N.E.2d 405 (2004) ; Troeller v. New York City Dept. of Educ., 107 A.D.3d 507, 507, 967 N.Y.S.2d 350 (1st Dept.2013) ; Roberts v. Health & Hosps. Corp., 87 A.D.3d 311, 319, 928 N.Y.S.2d 236 (1st Dept.2011). In reply to respondents' answers raising petitioners' lack of standing as a defense, moreover, petitioners pinpoint concrete examples of their members losing public work, illustrative of a cognizable harm due to respondent Comptroller's new classification and prevailing wage determination. E.g., Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 7–8, 988 N.Y.S.2d 115, 11 N.E.3d 188 (2014) ; Troeller v. New York City Dept. of Educ., 107 A.D.3d at 507, 967 N.Y.S.2d 350 ; New York Propane Gas Assn. v. New York State Dept. of State, 17 A.D.3d 915, 917, 793 N.Y.S.2d 601 (3d Dept.2005).
In particular, NYICA member A.S.C. Contracting Corp.'s president attests that the new classification and prevailing wages disadvantaged A.S.C. Contracting in competing for public projects, because, if it hires petitioner Local 175's workers, it must pay them higher wages under its CBA with Local 175 than other contractors who pay the Comptroller's lower prevailing wages. These higher costs have caused A.S.C. Contracting's bid to lose projects at Public School (P.S.) 333Q, P.S. 48Q, P.S. 56R, and P.S. 135K. Pet'rs' Reply Affs., Aff. of Charles Romano ¶ 6. If A.S.C. Contracting hires the predominant union members, from respondent Local 1010, paying them only the prevailing wages, as A.S.C. Contracting did to work for a contractor affiliated with GCA on a P.S. 171M project, A.S.C. Contracting still incurs higher labor costs in paying double benefits to Local 1010 members as well as to Local 175 under its CBA. Id. ¶ 7.
The president of NYICA member Nico Asphalt Paving, Inc., similarly attests to its higher labor costs from the Comptroller's challenged actions as a primary reason why Nico Asphalt Paving unsuccessfully bid for public projects, including the Delphi NYC DEP Pollution Control Plants, Staten Island School Construction Authority projects, and MTA Bus System projects in New York and Bronx Counties.Id., Aff. of Michael Pietranico ¶ 6. Because the Comptroller has recognized Local 1010 as the predominant union, whose CBA is with GCA, Nico Asphalt Paving, as a member of NYICA, whose CBA is with Local 175, either must pay higher wages than competing contractors that are not NYICA members or must hire Local 1010 members and pay double benefits to work as a subcontractor on public projects won by GCA members' bids. Therefore Nico Asphalt Paving paid those double benefits, for example, to work on the Prude Construction MTA Bus Project at First Avenue between East 34th and 35th Streets in New York County. Id. ¶ 7.
The presidents of other NYICA members, Green Gold Development Co. and Testani Paving Co., for example, likewise attest that, to work on public projects, the contractors paid double benefits to Local 1010 members whom the contractors hired due to Local 1010's status as the predominant union. Id., Aff. of Alfonso Taibi ¶ 7, Aff. of Gerard Testani ¶ 7. Again, these examples illustrate the concrete harm caused by respondent Comptroller's trade classification and designation of Local 1010 as the predominant union for purposes of determining prevailing wages in the trade.
In turn, petitioner union employee members are losing work because their union employers have...
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