Perlera v. Vining Disposal Service, Inc.

• Decision Date: 03 August 1999
• Docket Number: 97-P-1728,Nos. 97-P-1087,s. 97-P-1087
• Citation: 713 N.E.2d 1017,47 Mass.App.Ct. 491
• Parties: Cruz A. PERLERA & others 1 v. VINING DISPOSAL SERVICE, INC. (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 1017

713 N.E.2d 1017

47 Mass.App.Ct. 491

Cruz A. PERLERA & others ¹ v. VINING DISPOSAL SERVICE, INC. (and a companion case

²

).

Nos. 97-P-1087, 97-P-1728.

Appeals Court of Massachusetts,

Middlesex.

Argued June 9, 1998.

Decided Aug. 3, 1999.

Elizabeth A. Sloane, Boston, for Cruz A. Perlera & others.

Kenneth H. Tatarian, Boston, for Vining Disposal Service, Inc., & another.

Luz A. Arevalo, Assistant Attorney General, for the Attorney General.

Scott Harshbarger, Attorney General, Luz A. Arevalo, Assistant Attorney General, & Linda M. Hamel for the Attorney General & another, amici curiae, submitted a brief.

Present: WARNER, C.J., ARMSTRONG, & PORADA, JJ.

ARMSTRONG, J.

The issue in these appeals is whether G.L. c. 149, § 27F, set out below at note 5, requires a private company, under contract with a municipality to provide refuse collection and disposal services, to pay wages at "prevailing rates" (as determined by the Commissioner of Labor and Workforce Development ³ [commissioner] ) to the trash collectors who load and operate the compacting machinery at the backs of typical trash trucks. The cases arise out of contracts held by the defendant Vining Disposal Service, Inc. (Vining), to provide trash collection services to a number of municipalities, including the defendant town of Burlington.

In 97-P-1087, the plaintiffs are nondriver employees of Vining whose work includes collecting the trash, dumping it into the hopper at the back of the trash trucks, and activating the compacting equipment. Known as "shakers" due to the nature of their work, they claim that Vining unlawfully paid them wages at less than the prevailing rates mandated by the statute. A judge of the Superior Court entered summary judgment for Vining, reasoning that the plaintiff "shakers" were not "operators" of "equipment" under section 27F because "equipment" refers only to automotive items and "operators" refers only to persons controlling the direction and speed of such items, that is to say, the drivers. The plaintiffs appealed.

In 97-P-1728, the plaintiff is the Attorney General, ⁴ who sought a declaratory judgment under G.L. c. 231A and G.L. c. 214, § 1, that Vining's contract with the town of Burlington is governed by section 27F and is therefore void for failing to contain a copy of the applicable prevailing wage rate schedule. Another judge of the Superior Court ruled (contrary to the judge in the shakers' action) that section 27F was applicable to the shakers, but that the contract was not void because it contained a provision incorporating "all terms required to be included by [c]hapter 149," thus satisfying the mandatory "stipulation requiring prescribed rates of wages" under section 27F. Summary judgment was entered ordering Vining to comply with section 27F and pay the prevailing rates. We consolidated Vining's appeal from that judgment with the shakers' appeal.

The dispute centers on the meaning of portions of three phrases in the first sentence of section 27F that determine its scope. ⁵ One issue concerns the phrase "public works," which Vining contends does not encompass the municipal collection of refuse. Another concerns Vining's assertion that a contract for services is not an "agreement of lease, rental or other arrangement, [or] order or requisition." The final issue--the one deemed pivotal by the judge in the shakers' action--concerns whether the shakers are "operators" of "equipment" as those terms are used in the first sentence of § 27F.

1. "Public works." The term "public works" has not been comprehensively defined in our decisional law. See, e.g., G.L. c. 30, §§ 39M-P; G.L. c. 149, §§ 26-27F; Lee v. Lynn, 223 Mass. 109, 113, 111 N.E. 700 (1916); Andover Consultants, Inc. v. Lawrence, 10 Mass.App.Ct. 156, 158 n. 4, 160, 406 N.E.2d 711 (1980); Modern Continental Constr. Co. v. Lowell, 391 Mass. 829, 831-835, 838-839, 465 N.E.2d 1173 (1984); J. D'Amico, Inc. v. Worcester, 19 Mass.App.Ct. 112, 113-114, 472 N.E.2d 665 (1984); Thorn Transit Sys. Intl., Ltd. v. Massachusetts Bay Transp. Authy., 40 Mass.App.Ct. 650, 652-656, 667 N.E.2d 881 (1996). The reason is doubtless that the meaning of the phrase is somewhat elastic, expanding or contracting with the statutory context. The core concept of "public works," in Massachusetts and elsewhere, is commonly expressed as involving the creation of public improvements having a nexus to land, such as a building, ⁶ road, sewerage or waterworks facility, bridge, or park. See Lee v. Lynn, supra; Commonwealth v. Daniel O'Connell's Sons, 281 Mass. 402, 403, 183 N.E. 839 (1933); Andover Consultants, Inc. v. Lawrence, supra; J. D'Amico, Inc. v. Worcester, supra; Carter v. City and County of Denver, 114 Colo. 33, 37-38, 160 P.2d 991 (1945); Demeter Land Co. v. Florida Pub. Serv. Co., 99 Fla. 954, 963, 128 So. 402 (1930); Ellis v. Common Council of Grand Rapids, 123 Mich. 567, 569, 82 N.W. 244 (1900); Black's Law Dictionary 1606 (6th ed.1990); Webster's Third New Intl. Dictionary 1836 (1993). A second category of activities sometimes associated with "public works" includes the work of maintaining or repairing such facilities. See G.L. c. 41, § 69D (by-law may vest town board of public works with power over "maintenance and repair of town buildings and property"); G.L. c. 149, § 27D (painting of public works and public buildings subject to prevailing wage law); Felix A. Marino Co. v. Commissioner of Labor & Indus., 426 Mass. 458, 459-461, 689 N.E.2d 495 (1998) (road repairs are "construction of public works" under G.L. c. 149, § 26); Commonwealth v. W. Barrington Co., 5 Mass.App.Ct. 416, 363 N.E.2d 1120 (1977) (street sweeping contract was for "public works" under G.L. c. 149, § 27F); Thorn Transit Sys. Intl., Ltd. v. Massachusetts Bay Transp. Authy., 40 Mass.App.Ct. at 652-656, 667 N.E.2d 881 (upgrade of transit fare collection system is "public work" under G.L. c. 30, § 39M). See also Gaston v. Taylor, 274 N.Y. 359, 363, 9 N.E.2d 9 (1937) (subway maintenance); Golden v. Joseph, 307 N.Y. 62, 67-68, 120 N.E.2d 162 (1954) (boiler repair); Sewer Envtl. Contractors, Inc. v. Goldin, 98 A.D.2d 606, 606, 469 N.Y.S.2d 339 (1983) (sewer cleaning); Henkels & McCoy, Inc. v. Department of Labor & Indus., 143 Pa.Commw.Ct. 264, 267-269, 598 A.2d 1065 (1991) (phone system replacement); Probst v. Menasha, 245 Wis. 90, 91, 93-94, 13 N.W.2d 504 (1944) (sidewalk repair).

Finally, legislatures have at times used "public works" still more broadly to include activities with no immediate connection to fixed public improvements. See United States v. Irwin, 316 U.S. 23, 27-30, 62 S.Ct. 899, 86 L.Ed. 1241 (1942) (construction of private university library with public funds was "public work" under Miller Act); Flying Tiger Lines, Inc. v. Landy, 370 F.2d 46, 49 (9th Cir.1966) (contract between air carrier and United States Air Force to transport military personnel to Vietnam was "public work" contract under Defense Base Act); Lelande v. Lowery, 26 Cal.2d 224, 227, 157 P.2d 639 (1945) (publication of tax notices under contracts with county was "public work"); State v. Butler, 178 Mo. 272, 305-317, 77 S.W. 560 (1903) (municipal refuse collection is a "public work"). Significant for our purposes is G.L. c. 41, § 69D, which allows a town to create a board of public works, the role of which may under local law include the "collection and disposal of garbage and refuse"--a function that § 69D describes as one "reasonably related to the duties and responsibilities of a board of public works." See Board of Pub. Works of Wellesley v. Selectmen of Wellesley, 377 Mass. 621, 621-622, 387 N.E.2d 146 (1979) (town board of public works was responsible for refuse disposal). Here, Burlington's superintendent of public works, having a supervisory role over the execution of the contract, has approval authority over changes in the collection schedule, the placement of dumpsters, and special collections. In construing "public works" in section 27F, we give weight to the role of boards of public works with respect to the activity in question. See Commonwealth v. W. Barrington Co., 5 Mass.App.Ct. at 419, 363 N.E.2d 1120.

The Legislature's broad use of "public works" to include refuse collection and disposal dates at least to the 1953 enactment of G.L. c. 41, § 69D (see St.1953, c. 101, § 1) and thus preceded and was available to inform the later enactment of § 27F in 1960. See St.1960, c. 795. We note also that, at least as early as 1975, the department was taking the position that § 27F required it to set prevailing wage levels for nondriver trash collection workers. Although at various times ascribing the source of its authority to §§ 27B and 27C, sections which Vining argues persuasively are restricted to construction contracts, rather than to § 27F, the department has nevertheless been consistent in asserting that municipal trash collection contract workers must be paid prevailing wages, and, accordingly, has consistently issued wage rate schedules for municipal trash hauling contracts. While we do not give pivotal weight to the department's view, see Gateley's Case, 415 Mass. 397, 399, 613 N.E.2d 918 (1993), and cases cited, we agree with its position that the nondriver trash collection workers in these cases are entitled to receive prevailing wages as determined by the department. Here, as in Commonwealth v. W. Barrington Co., 5 Mass.App.Ct. at 421, 363 N.E.2d 1120, "we see no occasion for invoking the principle that an ambiguous penal statute is to be strictly construed against the Commonwealth."

2. Service versus rental contract. We similarly reject Vining's argument that a contract (such as this) for the services of an independent contractor falls outside of section 27F because it is not a "lease, rental or other arrangement, [or] order or requisition." Relying on a decision of only marginal relevance, ⁷ Vining asserts that because the term "other arrangement" (which alone is broad enough to encompass...