Onondaga-Cortland-Madison Serv. v. McGowan
| Decision Date | 01 May 2001 |
| Docket Number | ONONDAGA-CORTLAND-MADISON |
| Citation | 728 N.Y.S.2d 109 |
| Parties | (A.D. 3 Dept. 2001) In the Matter ofBOARD OF COOPERATIVE EDUCATIONAL SERVICES, Petitioner, v JAMES J. McGOWAN, as Commissioner of Labor, et al., Respondents. 87571 : THIRD JUDICIAL DEPARTMENT Calendar Date: |
| Court | New York Supreme Court — Appellate Division |
Frank W. Miller, East Syracuse, for petitioner.
Eliot Spitzer, Attorney-General (C. Michael Higgins of counsel), New York City, for respondents.
Before: Mercure, J.P., Crew III, Peters, Carpinello and Rose, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent Commissioner of Labor which found that petitioner failed to pay prevailing wages.
Petitioner is a board of cooperative education services serving 23 member school districts in Onondaga, Cortland and Madison Counties. Seeking to augment the workforce training programs available to public high school students, petitioner undertook a novel program during the 1997-1998 school year to involve its construction technology students in the actual construction of an office building (hereinafter the project) for the West Genesee Central School District (hereinafter the District). After discussing the project with the District, legal counsel and representatives of two local trade unions, petitioner contracted with the District for use of the project site by its workforce training classes. Neither petitioner nor the students were to be paid for their work. The District also contracted with seven commercial contractors to perform work on the project. In the course of the project, otherwise unskilled students between 16 and 20 years of age were taught and then performed various construction tasks at the project site for approximately one half of each school day. Specifically, under the immediate direction and supervision of their instructors, student workers erected exterior and interior walls, installed sheet rock and placed insulation. The commercial contractors, using skilled union workers, performed the majority of the construction work, including all plumbing, electrical, foundation, truss and roofing work.
Midway through the school year, an officer of one of the unions on the project filed a complaint with respondent Department of Labor alleging that petitioner had failed to pay prevailing wages to its students for the work that they performed. In the course of its investigation of the complaint, the Department's legal counsel rendered an opinion that petitioner's students could not be classified as volunteers in connection with the project and, therefore, they would be considered employees subject to the prevailing wage provisions of Labor Law § 220. After further investigation, Department personnel prepared an audit reporting that petitioner had been required, but had failed, to pay prevailing wages to its students for their work. The Department then conducted a hearing on petitioner's objections, and the Hearing Officer found that petitioner had violated Labor Law § 220 by failing to pay prevailing wages and supplements in the amount of $44,012. The Hearing Officer also determined that interest was owed at the rate of 16% per year but, finding no willfulness, he did not recommend a civil penalty. Respondent Commissioner of Labor issued a decision and order adopting the Hearing Officer's report and recommendations. Petitioner then commenced this proceeding pursuant to CPLR article 78 seeking to annul the Commissioner's determination and dismissal of the complaint against it.
Petitioner argues, inter alia, that the prevailing wage provisions of Labor Law § 220 are not applicable here because the project was not a public work due to its use as a training exercise and because its students were not employees. Respondents contend that Labor Law § 220 applies to petitioner's students because they were laborers who performed work on a public construction project, and that neither the courts nor the Legislature has recognized an exemption from the statute for unpaid student workers. Thus, this proceeding presents the issue of first impression of whether public school student trainees come within the scope of Labor Law § 220 and are thereby required to be paid prevailing wages for their work.1
Initially, we reject petitioner's contention that the project was not a "public work" within the purview of Labor Law § 220. Despite the project's ancillary use in training petitioner's students, the primary purpose of the work performed by both the building contractors and the student workers clearly was the construction of an office building that would provide a benefit to the District, its employees and the general public (see, Matter of Bridgestone/Firestone Inc. v Hartnett, 175 A.D.2d 495, 497; Matter of Sarkisian Bros. v Hartnett, 172 A.D.2d 895, 896, lv denied 78 N.Y.2d 859; Matter of 60 Mkt. St. Assocs. v Hartnett, 153 A.D.2d 205, 207, affd 76 N.Y.2d 993).
Nevertheless, because petitioner's students were not employees of a contractor on the project, we cannot agree with respondents that Labor Law § 220 (3), as construed by the Court of Appeals in Matter of Monarch Elec. Contr. Corp. v Roberts (70 N.Y.2d 91), is applicable to them.
It is well settled that the primary purpose and intent of the prevailing wage law (Labor Law § 200) is to protect workers by ensuring that they have an effective remedy to secure the prevailing wage and supplements * * *. The statute is also part of the competitive bidding process and as such, is intended to protect the public fisc and to benefit and protect local governments and their taxpayers * * * (E. Williamson Roofing & Sheet Metal Co. v Town of Parish, 139 A.D.2d 97, 103-104 [citations omitted]).
(See, Matter of Beltrone Constr. Co. v McGowan, 260 A.D.2d 870, 871-872.) Labor Law § 220 (3) also provides "an incidental benefit to contractors * * * by placing nonunion and union contractors on an equal footing at the bidding stage" (E. Williamson Roofing & Sheet Metal Co. v Town of Parish, supra, at 104; see, Matter of Monarch Elec. Contr. Corp. v Roberts, supra, at 95). Summarizing its opinion in Matter of Monarch Elec. Contr. Corp. v Roberts (supra), the Court of Appeals stated:
In Monarch we reviewed the history and interpretation of Labor Law § 220 and held that it requires the classification of all employees on State-funded public work projects as either journeymen or apprentices and that to qualify as an apprentice under the statute an employee must be individually registered in a skills training program approved by the State Department of Labor (Matter of Tap Elec. Contr. Serv. v Hartnett, 76 N.Y.2d 164, 168).
Confirming that "[s]ection 220 unambiguously authorizes only two categories of employees, journeymen...
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