To be Argued by:
JOSEPH L. GUZA, ESQ.
Estimated Time for Argument:
(10 Minutes)
STATE OF NEW YORK
(Emtrt of Appeal*
APL-2017-00087.
■o
INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, DISTRICT
COUNCIL NO. 4, by its Secretary-Treasurer, Mark Stevens; and
INTERNATIONAL UNION OFPAINTERS& ALLIEDTRADES, FINISHING
TRADES INSTITUTE OF WESTERN & CENTRAL NEW YORK, by its
Trustees Mark Stevens, Gregory Stoner, Robert Sinopoli, Jeffrey Carroll, Todd
Rotunno, Michael Dems, Daniel LaFrance, Dan Jackson, Dominic Zirilli, Tim
McCluskey, Jeff Sturtz, Frank Hosek, and Marvin Paige; and FORNO
ENTERPRISES, INC.; and TGR ENTERPRISES, INC.; and HOGAN GLASS,
LLC; and AJAY GLASS & MIRROR CO.; and THOMAS A. JERGE, as a citizen
taxpayer; and PAUL J. LEONE, as a citizen taxpayer; and CHRISTOPHER J.
POWERS, as an Apprentice enrolled in the Painters District Council No. 4 Glazier
Apprenticeship Program; and RACHEL TERHART, as a former Apprentice
enrolled in the Painters District Council No. 4 Glazier Apprenticeship Program,
Plaintiffs-Respondents,
vs.
THE NEW YORK STATE DEPARTMENT OF LABOR; and MARIO
MUSOLINO, as Acting Commissioner of New York State Department of
Labor, and CHRISTOPHER ALUND, as Director of the Bureau of Public
Works, a Division of the New York State Department of Labor,
Defendants-Appellants.
Appellate Division Docket Number: CA 16-00663.
Erie County Index No.: 801775/2015.
JOINT BRIEF FOR PLAINTIFFS-RESPONDENTS
ADAMS BELL ADAMS, P.C.
DANIEL P. ADAMS, ESQ.
Attorneys for Plaintiff-Respondent
Fomo Enterprises, Inc.
28 East Main Street, Suite 600
Rochester, New York 14614
Telephone: (585) 232-6900
LIPSITZ GREEN SCIME
CAMBRIA LLP
JOHN A. COLLINS, ESQ.
RICHARD D. FURLONG, ESQ.
JOSEPH L. GUZA, ESQ.
Attorneys for Plaintiffs-Respondents
DC4, FTI, Thomas A. Jerge,
PaulJ. Leone, Christopher J. Powers
and Rachel Terhart
42 Delaware Avenue, Suite 120
Buffalo, New York 14202
Telephone: (716) 849-1333
HARRIS BEACH, PLLC
EDWARD A. TREWETT, ESQ.
Attorneys for Plaintiff-Respondent
Ajay Glass & Mirror Co.
99 Gamsey Road
Pittsford, New York 14534
Telephone: (585) 419-8643
DUKE HOLZMAN PHOTIADIS
& GRESENS, LLP
PATRICIA GILLEN, ESQ.
Attorneys for Plaintiffs-Respondents TGR
Enterprises, Inc. and Hogan Glass, LLC
701 Seneca Street, Suite 750
Buffalo, New York 14210
Telephone: (716) 855-1111
Date of Completion: September 22, 2017.
BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768-2100
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES IV
PRELIMINARY STATEMENT 1
QUESTION PRESENTED 7
FACTUAL BACKGROUND 8
A. The Parties 8
B. Summary of Facts 9
ARGUMENT
DOL’S INTERPRETATION OF LABOR LAW SECTION 220(3-e)
IS IRRATIONAL AND INCONSISTENT WITH THE PLAIN MEANING
OF THE STAWTUTE AND THE STATUTORY PURPOSES OF
LABOR LAW SECTION 220 AND ARTICLE 23 14
I. THE LEGISLATURE’S INTENT BEHIND
SECTION 220(3-e) IS APPARENT FROM A
PLAIN READING OF THE STATUTE 19
A. The Defendants-Respondents Have Added a Limitation Not
Found on the Face of the Statute 19
The Four (4) Sentences of Section 220(3-e) When Read
Individually and as a Whole Plainly Allow Apprentices to be
Paid as Apprentices if They Are Individually Registered in a
Bona Fide Apprentice Program Which is Registered With the
DOL
B.
21
1. The First Sentence 21
2. The Second Sentence 22
The Third Sentence3. 25
4. The Fourth Sentence 26
II. DEFENDANTS-RESPONDENTS ARE ENTITLED TO NO
DEFERENCE AS IT SEEKS TO REWRITE SECTION 220(3-e),
NOT INTERPRET IT 31
III. DOL'S CLAIM THAT APPLYING THE PLAIN MEANING RULE
TO SECTION 220(3-e) WILL RESULT IN APPRENTICES
PERFORMING THE WORK OF ANY CRAFT AS APPRENTICES
IS INVALID 34
A. The New York State Labor Law already prohibits apprentices from
performing tasks outside the scope of their apprentice programs,
without regard to Section 220 (3-e). 35
B. The DC4 Glazier Apprentice Program has taught the installation of
curtain wall, storefronts and preglazed windows since its inception
and with the imprimatur of DOL. 38
C. Affidavits in support of Plaintiffs remain unrebutted. 43
IV. DOL’S ATTEMPTS TO PROTECT THE IRONWORKERS
UNION’S APPRENTICE PROGRAM FROM COMPETITION AT
THE EXPENSE OF THE GLAZIERS UNION’S BONA FIDE
APPRENTICE PROGRAM CONTRAVENES THE PREVAILING
RATE STATUTE GENERALLY AND ITS APPRENTICE
PROVISIONS SPECIFICALLY. 48
Section 220’s Goal of Insuring That Public Bodies Pay the
Wages/Supplements That Prevail in a Locality is Being
Subverted by the Denial of Apprentices to Glazier
Contractors
A.
49
ii
Section 220’s Goal of Equalizing Contractors’ Minimum Labor
Costs is Subverted by the Denial of Apprentices to Glazier
Contractors
B.
52
Section 220(3-e)’s Goal of Preventing Contractors From
Utilizing “Sham” Apprentice Programs is Not Advanced by
Denying Plaintiffs-Appellants Contractors Access to
Apprentices Registered in the Glaziers Bona Fide Apprentice
Program.
C.
53
V. PLAINTIFFS MERELY AIM TO HAVE GLAZIER APPRENTICES
PAID AS APPRENTICES ON TAXPAYER FINANCED
PROJECTS, AND DO NOT CHALLENGE THE APPLICABLE
PREVAILING WAGE CLASSIFICATION AND APPRENTICE
RATES AS DETERMINED BY DOL 55
CONCLUSION 56
hi
TABLE OF AUTHORITIES
CASES Page(s)
Associated Builders and Contractors v. City of Rochester,
67 NY2D 854(1986) 51,52
Cole v. Mandell Food Stores, Inc., 93 NY2D 34 (1999), 15
Doctors Council et al. v. NYC Employees Retirement System,
71 NY2D 669 (1988) 15
E. Williamson Roofing and Sheet Metal Co. v. Town of Parish,
139 AD2d 97 (4th Dep’t 1988) 51
Fata v. Healy Co., 289 AD2d 660 (3d Dep’t 1973), 51
Kurcsics v. Merchants Mutual Ins. Co., 40 NY2d 451 (1980) 24,33
Lantry v. State of New York, 6 NY3d 49 (2005) 18, 30, 55,56
Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 NY2D 577, (1998) 20
Martin v. Curran, 303 NY 276 (1951) 22,49
Matter of 427 W. 51st St. Owners Corp v. Division of Housing and Community
Renewal, 3 NY3D 337 (2004) 18,33
Matter of Action Electrical Contractors, Co. v. Goldin,
64 NY2d 213 (2008) 19-21,32, 52
Matter ofAlbano v. Kirby, 36 NY2d 526 (1975) 24, 29
Matter of Armco Drainage and Metal Products, Inc. v. State of New York,
285 AD 236 (1st Dep’t 1954) 27
Matter ofBeltrone Const, v. McGowan, 260 AD2d 870 (3d Dep’t 1999)......49, 50
Matter of Monarch Electrical Contractors v. Roberts,
70 NY2d 91 (1987) 16-17, 22, 27, 50, 52-53
iv
Matter of Raritan Dev. Corp. v. Silva, 91 NY2D 98 (1997) 34
Matter of Tall Trees Constr. Corp. v. Zoning Bd. of Appeals of Town of
Huntington, 97 NY2D 86 (2001) 33
Matter of Trump-Equitable Fifth Ave Co. v. Gliedman,
57 NY2d 588 (1984) 20,33
Matter of Visiting Nurse Service v. New York State Dep’t of Health,
5 NY3D 499 (2005) 18, 33
New York Independent Contractors Alliance v. Liu, 43 Misc 3d 443 (2013) 27
Orens v. Novello, 99 NY2d 180 (2002) 29
Patrolmen’s Benevolent Assn. v. City of New York, 41 NY2d 205 (1976) 15
People ex rel. Harris v. Sullivan, 74 NY2D 305 (1989), 15
Rangolan v. County of Nassau, 96 NY2d 42 (2001) 24
Tucker v. Board of Education, Community School District No. 10,
82 NY2D 274 (1993) 15
STATUTES
MCKINNEY’S CONS. LAWS OFN.Y., BOOK 1, STATUTES § 94, 15,21
MCKINNEY’S CONS. LAWS OFN.Y., BOOK 1, STATUTES § 236. 28
NY LABOR LAW § 10, 9
NY LABOR LAW § 220(3), 19
NY LABOR LAW § 220(3)(a) 16
NY LABOR LAW § 220(3)(b) 16
NY LABOR LAW § 220(3-e), passim
NY LABOR LAW§ 810, 54
NY LABOR LAW ARTICLE 23 passim
29 USC 158(b)(4)(D), 42
29 USC 160(k) 42
29 USC 186(c)(6), 8
OTHER AUTHORITIES
Oxford Dictionaries (https://en.oxforddictionaries.eom/definition/a). 32
NYS DOL Active Apprenticeship Trades,
http://www.labor.ny.gov/apprenticeship/general/occupations.shtm. 22
New York State DOL Bricklayers Work Processes,
http://labor.state.ny.us/apprenticeship/pdEActiveTrades/! l-025.pdf. 39
New York State DOL Ironworker Work Processes,
http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/15-221.pdf. 42
New York State DOL Plumbers Work Processes,
http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/46-273.pdf. 39,42
New York State DOL Sheet Metal Worker Work Processes,
http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/15-201.pdf. 42
New York State DOL Welder Work Processes,
http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/33-295.pdf. 43
Governor Cumo Announces $4.2 Million in Federal Funding Secured to Expand
New York’s Apprenticeship Program, https://www.govemor.ny.gov/news/
govemor-cuomo-announces-42-million-federal-fimding-secured-expand-new-
yorks-apprenticeship 35
vi
PRELIMINARY STATEMENT
Plaintiffs-Respondents (“Plaintiffs”) submit this brief in opposition to
Defendants-Appellants’ (collectively “DOL”) appeal of the Fourth Department’s
majority decision. Plaintiffs are a coalition comprised of the International Union
of Painters & Allied Trades, District Council No. 4 (“DC4”) and the Finishing
Trades Institute of Western & Central New York (“FTI”) (sponsors of the DOL-
approved DC4 Glazier Apprentice Program), several Glazing Contractors (Fomo
Enterprises, Inc., TGR Enterprises, Inc., Hogan Glass, LLC and Ajay Glass &
Mirror Co.), citizen taxpayers (Thomas A. Jerge and Paul J. Leone), and glazier
apprentices (Christopher J. Powers and Rachel Terhart).
Plaintiffs respectfully submit that this Court should reject DOL’s ultra vires
interpretation of Section 220(3-e) of the New York State Labor Law - the statute
that specifies the conditions under which workers may be compensated as
apprentices on taxpayer financed projects - because DOL’s interpretation exceeds
the agency’s authority by adding a condition for apprentice compensation not
found on the face of the statute. On this basis, the Fourth Department’s ruling
should be affirmed.
More specifically, Plaintiffs brought this action before Supreme Court and
the Fourth Department seeking injunctive relief and a declaratory judgment on the
meaning of Labor Law Section 220(3-e) - a straightforward, four-sentence statute.
1
That statute sets forth the requirements apprentices must meet in order to receive
apprentice wages on taxpayer financed projects in New York State. The
requirements are twofold: (1) the employee must be registered, individually, in a
bona fide apprentice program, and (2) the apprentice program itself must be
registered with the New York State Department of Labor (“DOL”). The Fourth
Department agreed that these two conditions remain the only criteria by which
apprentice status may be judged.
Notwithstanding the plain language of the statute, DOL has interpreted
Section 220(3-e) to include a third requirement not found on its face. Namely,
DOL claims that apprentices may only receive apprentice-level compensation on
public works projects when they belong to an apprentice program in a trade sharing
the same prevailing wage classification for the work they are performing. Because
DOL’s rule is contrary to the plain meaning of Section 220(3-e), DOL is not
entitled to deference. For that reason, this Court should affirm the Fourth
Department’s ruling.
iPlaintiffs DC4 and FTI sponsor the DC4 Glazier Apprentice Program (89).
The DC4 Glazier Apprentice Program is registered with DOL and teaches a
curriculum which was developed in collaboration with, and ultimately approved
by, DOL (97). Glazing is a highly skilled trade (90) and demand for skilled
I Numbers in parentheses refer to the pages of the record on appeal unless
otherwise indicated.
2
glaziers is (and has been) growing exponentially (129). To keep up with these high
demands and proficiency requirements, the DC4 Glazier Apprentice program
offers a combination of field and classroom training, and is designed to teach
apprentices the skills they need to become joumeyworker glaziers capable of
performing the work required by DC4’s signatory contractors (99-100). Like
many apprenticeships, the program requires four years of classroom and field
instruction (140), during which time the apprentices are taught and supervised by
highly skilled joumeyworker glaziers (142). Developed in collaboration with the
DOL, the program’s curriculum requires 8,000 hours of classroom and field
instruction - 2,000 more hours than the DOL’s minimum requirement for glazier
apprentice programs (97-98). The DC4 Glazier Apprentice Program requires
apprentices to complete 1,500 field training hours (nearly 20% of the curriculum)
installing curtain wall, storefronts and preglazed windows (100).
Because DC4’s signatory contractors perform the majority of their work on
taxpayer-financed projects (90, 175, 184, 191, 197), the success of the DC4 Glazier
Apprentice Program depends (as do all DOL-registered apprentice programs in the
construction trades) on the ability of signatory contractors to pay apprentices at the
lower apprentice rate. The lower apprentice rate provides an incentive for
contractors to hire as-yet-unskilled workers, and the apprentices are provided with
3
opportunities to learn valuable skills and acquire the field hours they need to
progress through the DC4 Glazier Apprentice Program.
To successfully complete the program, DC4 glazier apprentices must learn,
inter alia, to install storefronts, curtain wall and preglazed windows. Id. While
these work processes are included in the program’s DOL-approved curriculum,
DOL has classified the installation of storefronts, curtain wall and preglazed
windows as ironworkers’ work for purposes of determining the prevailing
joumeyworker and apprentice wage rates applicable on taxpayer financed projects.
Put otherwise, based on DOL’s prevailing wage classification, any construction
workers installing storefronts, curtain wall or preglazed windows on taxpayer
financed projects must be paid the applicable ironworker joumeyworker and/or
apprentice wage rates. While DC4’s signatory glazing contractors exclusively
perform the work at issue in thirty-three counties throughout New York State,
Plaintiffs do not challenge DOL’s prevailing wage determination, which requires
the installation of storefronts, curtain wall and preglazed windows to be
compensated at ironworker joumeyworker and apprentice rates.
Erroneously, DOL does not permit glazier apprentices to be paid the
ironworkers’ apprentice wage rate when they install curtain wall, storefronts or
preglazed windows. Rather, DOL claims that the only way apprentices performing
work classified under the ironworkers’ prevailing wage rates may receive the
4
ironworkers’ apprentice wage rate is if they are enrolled in a DOL-registered
ironworkers’ apprentice program (84, 93, 177, 186, 192, 198-199, 259). Put
generally, DOL argues that, to receive apprentice-level wages, apprentices must be
registered in a bona fide DOL-registered apprentice program matching DOL’s
prevailing wage classification for the work they are performing. Labor Law
Section 220(3-e), however, provides no such restriction. While DOL claims that
its interpretation of Section 220(3-e) is necessary to protect apprentice programs,
in practice DOL’s rule restricts access to the very apprentices who are required to
learn the work - and who would otherwise be permitted to perform the work at
apprentice-level wage rates under a plain reading of the statute.
DOL - also erroneously - argues that applying Section 220(3-e) in
accordance with its plain meaning will result in apprentices from various trades
cannibalizing the apprenticeship system by performing work they are not trained to
perform at the lower apprentice rate. DOL’s arguments completely miss the mark,
because contractors and apprentice programs alike have no incentive for allowing
apprentices to perform work outside of their respective programs. Indeed, were a
glazier apprentice to perform masonry on a taxpayer financed project, she would
neither be compensated as an apprentice nor would she receive apprentice credit
for the work, because the glazier apprentice curriculum does not require
apprentices to learn masonry as a condition of completing the program. Put
5
otherwise, DOL’s alleged concerns in no way follow from the plain meaning of
Section 220(3-e) and to suggest otherwise is absurd.
Supreme Court did not address the issue at hand, misreading this case as a
challenge to DOL’s authority to set the prevailing wage and dismissing the
Complaint. The Fourth Department reversed in a 4-1 decision, finding that the
plain meaning of Section 220(3-e) permits apprentices who are registered in a bona
fide DOL-registered apprentice program to work and be paid as apprentices even
where DOL’s prevailing wage classification of the work they are performing does
not match the name of the trade in which they are apprenticed. Because DOL’s
interpretation of Section 220(3-e) is contrary to the plain meaning of the statute,
the Fourth Department found that DOL is not entitled to deference and rejected the
DOL’s interpretation of the statute.
This Court should affirm. DOL’s rule is contrary to the plain meaning of the
statutory language, and therefore without a rational basis. The Fourth
Department’s ruling affirms both the plain meaning of Section 220(3-e) and this
Court’s jurisprudence regarding the enforcement and interpretation of statutes.
Further, the ruling comports with the real-world overlap between the construction
trades by requiring DC4 glazier apprentices to be paid as apprentices when they
are performing work that is included in the DOL-approved DC4 Glazier
Apprentice Program curriculum. Indeed, the Fourth Department’s decision
6
protects all of New York State’s apprentice programs (particularly those in the
construction trades) by allowing their DOL-approved curricula to circumscribe the
boundaries of apprentice compensation, instead of the ultra vires restrictions
imposed by DOL’s Bureau of Public Work. DOL’s rule throttles access to
apprentices where the construction trades overlap, impermissibly and irrationally
barring apprentice compensation wherever one trade’s apprentice curriculum
includes work processes DOL has designated under another trade’s prevailing
wage classification. For all of these reasons, discussed in detail below, the Fourth
Department’s order should be affirmed.
QUESTION PRESENTED
Whether Labor Law § 220(3-e), which governs the employment of
apprentice workers on public works projects in the State of New York, provides
that apprentices may be paid apprentice-level wages only if they are registered in
an apprenticeship program in the trade matching DOL’s prevailing wage
classification for the labor they will be performing.
The Fourth Department answered this question in the negative. Again, this
Court should affirm.
7
FACTUAL BACKGROUND
A. The Parties
Plaintiff DC4 is a labor organization representing skilled tradespersons in
the construction industry including glaziers, throughout thirty-three counties in
New York State (45).
Plaintiff FTI is a joint labor-management, non-profit trust formed under
Section 302(c)(6) of the Taft-Hartley Act [29 U.S.C. § 186(c)(6)] (45). DC4 and
FTI sponsor a glazier apprenticeship program (the “DC4 Glazier Apprentice
Program”) which has been registered with the New York State Department of
Labor (“DOL”) for over twenty years (89).
Plaintiffs Fomo Enterprises, Inc. (“Fomo”), TGR Enterprises, Inc. (“TGR”),
Hogan Glass, LLC (“Hogan”) and Ajay Glass & Mirror Co. (“Ajay Glass”)
(collectively, “Glazing Contractors”) are New York corporations and employers in
the construction industry (46). The Glazing Contractors all specialize in the
manufacture and installation of glass products including, inter alia, storefronts,
curtain walls and preglazed windows (186, 184, 191, 197).
Plaintiffs Thomas A. Jerge and Paul J. Leone are citizen taxpayers who
reside in counties in New York State in which certain Glazing Contractors
performed work on publicly funded glazing construction projects (207-217).
8
Plaintiff Christopher J. Powers is an apprentice registered in the DC4
Glazier Apprentice Program (218-223). Plaintiff Rachel Terhart is a
joumeyworker glazier who graduated from the DC4 Glazier Apprentice Program
(224-225).
Defendant DOL is an agency of the State of New York established pursuant
to New York State Labor Law Section 10. Defendant Mario Musolino was the
NYS Acting Commissioner of Labor at the time the action below was filed (47).
Defendant Christopher Alund is the Director of the New York State Bureau of
Public Works, a Division of DOL, and a former ironworker, in a long line of
ironworkers.2
B. Summary of Facts
The detailed facts of this case are recited at length in the panoply of fact
affidavits included in the Record on Appeal. What follows is a brief summary of
those facts.
The DC4 Glazier Apprentice Program is registered with DOL and has been
so registered for over twenty years (89). The Work Processes and Related
Construction of the DC4 Glazier Apprentice Program (“Curriculum”) was
2 “Defendant Alund was an Ironworker, his father was an Ironworker, his
grandfather was an Ironworker, his brother was an Ironworker, his cousins were
Ironworkers, as were his uncles. All told, Defendant Alund surmised that
approximately ten (10) close family kin were either current or past Ironworker
Union members” (326).
9
developed in collaboration with, and is approved by, DOL (97). The Curriculum,
requires apprentices, as a condition for progressing in and graduating from the
Program, to spend a specific number of hours performing, inter alia, the
installation of storefronts, curtain wall and preglazed windows (99-100). Put
otherwise, the installation of storefronts, curtain wall and preglazed windows has
been explicitly recognized by DOL’s Department of Apprenticeship Training as
work which must be taught by the DC4 Glazier Apprentice Program inasmuch as
joumeyworker glaziers must be conversant with these work processes. Id. Despite
Defendants’ contention otherwise, DOL has not established a practice of
distinguishing ironworker apprentice tasks from glazier apprentice tasks with
respect to the installation of curtain wall, storefronts or preglazed windows in the
field. See Affidavit of Marcia Johnson (294) (“The Work Processes of the Glazier
Apprentice Program included, among other tasks/skills, learning how to install all
manner of curtain wall, store fronts and entrances and pre-glazed windows”). See
also Fourth Department’s Memorandum and Order (398) (“such work remains a
work process of glaziers, as defined by the work curriculum promulgated and
approved by the DOL”).
Apprentices enrolled in the DC4 Glazier Apprentice Program are placed in
field assignments with one of DC4’s signatory Glazing Contractors (91-93). The
vast majority of the jobs performed by the Glazing Contractors are publicly funded
10
construction projects (90, 175, 184, 191, 197). DC4’s apprentice glaziers rely
upon placement on these taxpayer financed projects to meet the curriculum’s
hourly requirements with respect to the installation of storefronts, curtain wall and
preglazed windows (82, 92-93). Despite the fact that the apprentice glaziers, by
definition, are inexperienced, the New York State Labor Law Section 220(3-e)
provides an incentive for contractors to hire them on publicly financed projects.
That incentive is the much lower apprentice wage and benefit rates (as opposed to
the higher journeyworker rates), which are only payable to apprentices that are: (1)
enrolled in a bona fide apprenticeship program, which is (2) registered with DOL
(94, 178, 184-187).
Section 220(3-e), when it is applied properly, offers multiple benefits for
contractors, apprentices and taxpayers. Apprentices are able to gain the experience
necessary to meet their program requirements (101). Contractors are able to hire
less experienced apprentices, which allow them to stay competitive (94, 178, 184-
187). Taxpayers benefit from lower labor costs on taxpayer financed projects
(179, 193,201-202).
Despite the clear language of Section 220(3-e), however, DOL has taken the
position that a third requirement - completely absent from the plain language of
the statute - is necessary before an enrolled apprentice can, for purposes of
compensation, be deemed an apprentice on taxpayer financed projects.
Specifically, DOL claims that, with respect to apprentices performing the
installation of storefronts, curtain wall and preglazed windows, such apprentices
must be enrolled in an ironworker apprentice program (84, 93, 177, 186, 192, 198-
199, 259).
For purposes of the classification of wages on public projects, DOL has
determined that the installation of storefronts, curtain wall and preglazed windows
is to be paid at the posted ironworkers’ joumeyworker and apprenticeship rates.
Plaintiffs do not dispute DOL’s prevailing wage classification determination (87),
but only dispute DOL’s ultra vires requirement that apprentices performing the
installation of storefronts, curtain wall and preglazed windows may only be paid
the ironworker apprentice rate if they are enrolled in an ironworker union
apprentice program registered with the DOL. Put otherwise, Section 220(3-e) does
not require apprentices to be enrolled in an apprentice program for a trade that
matches DOL’s prevailing wage classification for the work being performed as a
precondition for apprentice-level compensation.
Before the Fourth Department declared DOL’s interpretation of Section
220(3-e) to be contrary to the statute’s plain meaning, Plaintiffs suffered myriad
harms and injustices under DOL’s rule, including:
• DC4 Glazier Apprentices were unable to receive sufficient field placements
on taxpayer-financed projects, resulting in significant delays to their career
development, both short and long term earning potentials and in some
12
instances, the forced abandonment of their chosen career (82, 92, 177, 186-
187, 193, 200-201, 220, 225, 229);
• DC4 and FTI were unable to place their registered apprentice glaziers on
taxpayer-financed projects, which caused the erosion of DC4’s Glazier
Apprenticeship Program, market share and bargaining strength (78-87; 88-
104);
• The Glazing Contractors suffered from a shortage of skilled glaziers due to
their inability to supplement their workforce with apprentices compensable
at the posted ironworker apprentice rates (175-202);
• The costs of taxpayer financed projects were artificially and illegally inflated
because the Glazing Contractors were denied access to lower compensated
glazier apprentices, thereby harming the individuals who pay for these
projects, to wit, taxpayers such as Plaintiffs Jerge and Leone (179, 193, 201-
202,207-217);
• Glazing Contractors have been put at a competitive disadvantage due to the
forced inflation of their labor costs (177, 192).
Should this Court disturb the Fourth Department’s ruling, Plaintiffs will once again
be subjected to these injustices. Further, if DOL is permitted to modify the plain
language of Section 220(3-e) so that DOL’s prevailing wage classifications trump
the scope of DOL-approved apprenticeship curricula, all apprentice programs will
be throttled wherever their curricula overlap with the DOL’s “chosen” trade.
Because Section 220(3-e) contemplates neither the restrictions set forth in DOL’s
rule nor the circumstances described above, this Court should affirm the Fourth
Department’s ruling.
13
ARGUMENT
DOL’S INTERPRETATION OF LABOR LAW SECTION 220(3-
e) IS IRRATIONAL AND INCONSISTENT WITH THE PLAIN
MEANING OF THE STATUTE AND THE STATUTORY
PURPOSES OF LABOR LAW SECTION 220 AND ARTICLE 23
New York Labor Law Section 220(3-e) addresses when apprentices can be
compensated as such while working on public works contracts. Labor Law Section
220(3-e) states in pertinent part:
Apprentices will be permitted to work as such only when
they are registered, individually, under a bona fide
program registered with the New York State Department
of Labor.
journeymen in any craft classification shall not be greater
than the ratio permitted to the contractor as to his work
force on any job under the registered program. Any
employee listed at an apprentice wage rate, who is not
registered as above, shall be paid the wage rate
determined by the New York State Department of Labor
for the classification of work he actually performed. The
contractor or subcontractor will be required to furnish
written evidence of the registration of his program and
apprentices as well as of the appropriate ratios and wage
rates, for the area of construction prior to using any
apprentices on the contract work, (emphasis added).
The allowable ratio of apprentices to
The legislature’s chosen language is plain and its intent clear: to be treated
and compensated at apprentice rates, an individual must be registered in a bona
fide apprentice program that itself is registered with DOL. In other words,
contractors cannot avail themselves of the benefits of hiring an apprentice by
14
simply calling an employee an “apprentice.” There must be legitimate training as
part of a bona fide comprehensive training program.
The principle that statutes should be interpreted and enforced in accordance
with their plain meaning, and without resorting to artificial or forced constmction,
is ensconced in New York Law. See McKinney’s Cons Laws of NY, Book 1,
Statutes § 94 (“The Legislative intent is to be ascertained from the words and
language used, and the statutory language is generally construed according to its
natural and most obvious sense, without resorting to an artificial or forced
construction”).
This Court has never shied away from giving effect to the “plain meaning”
rule. Indeed, the Court of Appeals has held it to be “fundamental that a court, in
interpreting a statute, should attempt to effectuate the intent of the Legislature, and
where the statutory construction is clear and unambiguous, the court should
construe it so to give effect to the plain meaning of the words used.” Doctors
Council et al. v. NYC Employees Retirement System, 71 NY2d 669 (1988) quoting
Patrolmen’s Benevolent Assn. v. City of New York, 41 NY2d 205, 208 (1976). See
also, Cole v. Mandell Food Stores, Inc., 93 NY2d 34 (1999) (“When the language
of a statute is clear and unambiguous, courts are obliged to constme the statute so
as to give effect to the plain meaning of the words.” (quoting People ex rel. Harris
v. Sullivan, 74 NY2d 305, 309 (1989)); Tucker v. Board of Education, Community
15
School District No. 10, 82 NY2d 274 (1993) (“Where statutory language is
unambiguous, a court will ordinarily give effect to the plain meaning of the words
and apply the statute according to its express terms” (citations omitted)).
Ironically, DOL has already persuaded the Court to apply the “plain
meaning” rule when interpreting the apprenticeship language in Labor Law
Sections 220(3)(a), (3)(b) and (3-e). In Matter of Monarch Electrical Contractors
v. Roberts, 70 NY2d 91 (1987), a group of contractors who sponsored “trainee”
programs registered with the United States Department of Labor (“USDOL”)
argued that the programs were functionally identical to DOL registered programs
and therefore the participants were eligible to be paid apprentice rates. DOL did
not take issue with the claim that the program registered with USDOL was the
functional equivalent of DOL apprentice programs and indeed the Court found
“that the programs are essentially identical” {Id. at 97). Rather, DOL argued that
the plain and literal meaning of Labor Law Section 220(3-e) trumped any policy
arguments and, as the contractors’ programs were not registered with DOL, the
lower apprentice wages could not be paid. The Court agreed with the application
of the plain meaning rule to Section 220(3-e):
[W]e are constrained to affirm respondent’s
interpretation of the statute. We find the statute
unambiguous in its recognition of only two
classifications of workers— apprentices and journey-level
employees— and in its requirement that, to be paid
apprentice level wages, individuals must be in an
16
apprenticeship program registered with the New York
State Department of Labor ... the Labor Law as written
and as consistently interpreted, recognized only
apprentices registered with the State Department of
Labor. Respondent [DOL Commissioner] applied its
plain meaning to petitioners when she held that the
trainees must be registered in a State registered
apprenticeship program to work as apprentices, failing
which they must be paid as journeymen. Id. at 97-98.
Thus, in Monarch Electrical, DOL contended that Labor Law Section
220(3-e) is unambiguous and must be enforced according to its plain and literal
meaning. This Court agreed, and, Plaintiffs respectfully submit, should apply the
same reasoning here.
While the plain meaning of the statute should settle this case in Plaintiffs
favor (the Fourth Department reasoned that it did), there are several reasons why
DOL’s interpretation of Section 220(3-e) should be rejected. First, it immediately
becomes clear that the legislature intended to place only two restrictions on the
payment of apprentice wage rates to employees on publicly funded projects: (1)
that the employee be registered in a bona fide apprentice program, and (2) that the
bona fide apprentice program in which the employee is registered is itself
registered with DOL. Because there are only two restrictions on payment of
apprentice wages on publicly funded projects, DOL’s position that glazier
apprentices must be enrolled in an ironworker program to receive apprentice wage
rates impermissibly adds a limitation not found on the face of the statute.
17
Second, because the meaning of Section 220(3-e) is plain, DOL’s
interpretation of the statute is not entitled to any deference. See, e.g., Matter of
Visiting Nurse Service v. New York State Department of Health, 5 NY3d 499, 506
(2005) (“Although it is true that an agency’s interpretation of its own regulation
generally is entitled to deference, courts are not required to embrace a regulatory
construction that conflicts with the plain meaning of the promulgated language”
(citing Matter of 427 W. 51st St. Owners Corp. v. Division of Housing and
Community Renewal, 3 NY3d 337 (2004)).
Third, DOL’s interpretation of 220(3-e) ignores the safeguards against
abuse of apprentices enshrined in Article 23 of the Labor Law and unfairly restricts
access to apprentices wherever (as here) apprentice programs overlap.
Fourth, DOL’s interpretation of 220(3-e) contravenes the purpose of the
prevailing wage laws generally by distorting the wages
Fifth, DOL’s reliance on the Lantry decision is wholly misplaced, as
Plaintiffs have never challenged DOL’s authority to determine prevailing wage
classifications.
These arguments were all raised before the Fourth Department, which issued
a well-reasoned and pragmatic majority decision in favor of Plaintiffs. The Fourth
Department’s ruling is based firmly on this Court’s long-standing “plain meaning”
18
jurisprudence and should remain undisturbed. Accordingly, Plaintiffs respectively
submit that this Court should affirm.
I. THE LEGISLATURE’S INTENT BEHIND SECTION 220
(3-e) IS APPARENT FROM A PLAIN READING OF THE
STATUTE
A. DOL Has Added a Limitation Not Found on the Face of the
Statute.
In Matter of Action Elec. Contrs. Co. v. Goldin, 64 NY2d 213 (2008), a
contractor sought to comply with Section 220 by making cash payments to
employees in lieu of making those same payments to specific benefit plans. DOL
alleged that paying the money directly to employees rather than actually making
those payments to an in-kind benefits package was improper and violated the
Section 220(3) requirement that “locally prevailing supplements” be provided.
The Court of Appeals rejected DOL’s position:
Of importance, however, is the fact that nothing in
Section 220 expressly prohibits an employer from
providing the prevailing supplements either totally by
payments in cash, partially in benefits and partially in
cash, or totally in benefits by direct contribution to a
benefit fund.
Respondent evaluated petitioner’s compliance with the
statute according to the erroneous standard that no cash
payments could be made to employees as a means of
providing the prevailing supplement. This was an
arbitrary and irrational interpretation of the statute
because it provides no such limitation. Therefore,
19
Respondent’s determination cannot be sustained
(emphasis added).
Action Electrical, 64 NY2d at 221-223 (citing Matter of Trump-Equitable Fifth
Ave Co. v. Gliedman, 57 NY2d 588 (1984)). Here, DOL is attempting to do the
very thing found impermissible by this Court in Action Electrical, impose a
disabling limitation not found in the statute. The Legislature in Section 220(3-e)
drew the dividing line for apprentice access between programs which are bona fide
and registered with DOL and programs which are not. DOL, however, has added
the additional limitation that, of the pool of bona fide and registered programs,
only the program that is sponsored by the trade/craft sharing the prevailing wage
classification of the work is eligible to have its apprentices treated as apprentices
on public works projects. Just like its interpretation of Section 220 in Action
Electrical, DOL’s rule here has added a limitation not found on the face of the
For this reason, the Fourth Department rightly rejected DOL’sstatute.
interpretation of Section 220(3-e), noting that where statutes “have a definite
meaning, which involves no absurdity or contradiction, there is no room for
construction and courts have no right to add to or take away from that meaning.”
(399) (quoting Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 NY2D 577, 583
(1998)). Accordingly, this Court should affirm.
20
B. The Four (4) Sentences of Section 220(3-e) When Read
Individually and as a Whole Plainly Allow Apprentices to be
Paid as Apprentices if They Are Individually Registered in a
Bona Fide Apprentice Program Registered With DOL.
1. The First Sentence
The first sentence of Section 220(3-e) reads: “Apprentices will be permitted
to work as such only when they are registered, individually, under a bona fide
program registered with the New York State Department of Labor” (emphasis
added). According to DOL, however, this sentence actually reads, “[apprentices
will be permitted to work as such only when registered in the apprentice program
of the prevailing wage classification assigned to the work by the Director of the
Bureau of Public Work” (i.e. Defendant Alund). The first sentence, however,
does not read as claimed by DOL, nor does reading the sentence require any
technical expertise above and beyond rudimentary literacy skills. See Action
Electrical, 64 NY2d at 221 (“When ... interpreting a statute does not require any
technical expertise, as in the present situation, the courts are not bound by the
agency’s construction” (citation omitted)). See also McKinney’s Statutes, Section
94 (“the legislative intent is to be ascertained from the words and language used,
and the statutory language is generally construed according to its natural and most
obvious sense, without resorting to an artificial or forced construction”).
21
If DOL wishes, for policy reasons or otherwise, to redraft the first sentence,
let them introduce an appropriate bill in the Legislature. Their appeal to the courts
is wholly misplaced. See, e.g., Martin v. Curran, 303 NY 276 (1951).
2. The Second Sentence
The second sentence of Section 220(3-e) confirms categorically that the
Legislature understood and intended that apprentices from a bona fide program
may perform tasks in a different craft classification. It states:
The allowable ratio of apprentices to journeymen in any
craft classification shall not be greater than the ratio
permitted to the contractor as to his work force on any
job under the registered program, (emphasis added).
Each apprentice program registered with DOL is assigned an allowable apprentice
to joumeyworker ratio. As recognized by the Court of Appeals in Monarch
Electrical, 70 NY2d at 95-96, these apprentice-to-joumeyworker ratios, which are
made an express part of each Apprenticeship Training Program Registration
Agreement (131) are “intended to prevent employers from cutting standards of
construction work by hiring an excessive number of unskilled employees, and to
ensure that learning level workers receive approved, supervised training.” These
ratios apply whether apprentices are utilized on public or private work and
regardless of the size of the project.
Importantly, ratios vary from trade to trade. See NYS DOL Active
Apprenticeship Trades, http://www.labor.ny.gov/apprenticeship/general/
22
occupations.shtm (last visited March 2, 2016). The Glaziers Apprenticeship
Program has a ratio of 1:1; 1:3, meaning as to the first two (2) employees on a
project there can be one (1) apprentice to one (1) joumeyworker; for the next four
(4) employees placed on the project, one (1) can be an apprentice and three (3)
must be joumeyworkers prepared to supervise the two (2) apprentices. On the
other hand, the Ironworkers Apprentice Program has a ratio of 1:1; 1:4. And other
crafts have different ratios required as a condition of their DOL registration: by
way of example, the Elevator Constructor is 1:1; 1:2. The Lather is 1:1, 1:5. The
Operating Engineer is 1:1; 1:5. The Painter is 1:1; 1:3 and so on. Every craft
apprentice program is unique, with some more liberal in their ratios than others.
The second sentence of Section 220(3-e) makes clear that the contractor
must maintain the same ratio under its registered program when performing work
“in any craft classification” including where the craft classification of the work
being performed would permit a more liberal and relaxed ratio (emphasis added).
In other words, the statute contemplates that apprentices may work in different
classifications but the integrity of the ratios in their own DOL-registered apprentice
programs must be maintained. The contractor is not free to avail itself of more
favorable ratio formulas. Thus, if Glazier apprentices perform work under the
ironworker prevailing wage classification, the Glazier apprentices must maintain
their 1:1; 1:3 ratio notwithstanding that the Ironworker ratio is 1:1; 1:4. And the
23
reverse is true as well: if Ironworker apprentices perform work classified as
Glaziers, the Ironworkers must maintain their 1:1; 1:4 ratios and are not free to
adopt the more liberal 1:1; 1:3 Glazier program ratio. This provision recognizes
that apprentices may be called to work in a prevailing wage classification holding a
different ratio.
Were DOL’s interpretation of the Legislature’s intent true this sentence
would be completely unnecessary since apprentices can, per DOL, never be treated
as apprentices unless they are performing tasks within their trade’s prevailing wage
classification. That is, the variance in ratios by trade classification would never be
an issue since per DOL, an apprentice cannot perform work outside of his/her
classification to begin with.
This Court should not assume that the Legislature wrote into Section 220(3-
e) a meaningless and redundant provision regarding apprentice to joumeyworker
ratios. For to do so would contradict the fundamental rule that words have
meaning. Rangolan v. County of Nassau, 96 NY2d 42, 48 (2001) (court must give
effect to “all the language employed by the particular legislation”); Kurcsics v.
Merchants Mutual Ins. Co., 49 NY2d 451, 458 (1980) (“it remains a basic
principle of statutory construction that a court will not by implication read into a
clause or a rule or statute a limitation for which no sound reasons [can be found]
and which would render the clause futile”); Matter of Albano v. Kirby, 36 NY2d
24
526, 530 (1975) (in interpreting a statute “the enacting body will be presumed to
have inserted every provision for some useful purpose”). The Legislature here was
perfectly aware that different craft classifications have different ratios and its
chosen language makes clear that the right to use a bona fide registered apprentice
(set forth in the first sentence) shall not result in the adoption of a less restrictive
apprentice/journeyworker ratio when working in another classification.
3. The Third Sentence
The third sentence of Section 220(3-e) states that “[a]ny employee listed on
a payroll at an apprentice wage rate, who is not registered as above, shall be paid
the wage rate determined by [DOL] for the classification of work he actually
performed.” This provision specifically addresses the right to pay, or not pay as
the case may be, an employee the posted apprentice wage rates. It speaks to the
requirement that the employee be “registered as above”, meaning (per the first
sentence) individually and in a bona fide apprentice program which itself is
registered with DOL.
Notably, the sentence does not read that the employee must be “registered as
an apprentice in the prevailing wage classification as determined by the Director of
the Bureau of Public Work.”
25
4. The Fourth Sentence
The fourth and last sentence of Section 220(3-e) states that “[t]he contractor
or subcontractor will be required to furnish written evidence of the registration of
his program and apprentices as well as the appropriate ratios and wage rates, for
the area of construction prior to using any apprentices on the contract work.”
According to DOL, the phrase “for the area of construction” actually was intended
by the Legislature to denote the prevailing wage classification (i.e. glazier,
ironworker, roofers, etc.) used to establish wages on a project (277-278). There are
many problems with this argument, chief among them that the interpretation
assigned to the phrase by DOL has never, not on a single occasion, been similarly
assigned to any portion of Section 220 by the courts, the Legislature or even DOL
itself. DOL’s definition of the phrase “area of construction” is a definition of first
impression, and a strained one at that.
As a threshold matter, Plaintiffs note that unlike the first three (3) sentences
of Section 220(3-e) which address conditions that must be met for an employee to
be deemed an apprentice, this fourth sentence is merely a reporting/recordkeeping
provision. The contractor must “furnish written evidence” that he is complying
with the registration requirements of the first and third sentences. Like statutes of
all kinds, here the first three (3) sentences of Section 220(3-e) establish substantive
rights/obligations which are then followed by a recordkeeping provision set forth
26
in the fourth and last sentence. But the fourth sentence does not create an
additional substantive condition that must be met in order to attain apprentice
status.
Further, there is not a single reported case from any New York court at any
level that suggests directly or indirectly that “area of construction” is for purposes
of Section 220 synonymous with the oft used phrases “craft classification,”
“trade,” “craft,” or simply “classification” all of which are used throughout Section
220 “to refer to a type of work.” Indeed, it becomes apparent upon a perusal of the
dozens upon dozens of reported court decisions arising out of Section 220 that the
exact opposite is true: when New York courts address the craft or type of work
performed invariably they mirror the statute’s use of the terms “craft
classification,” “trade,” “craft,” or simply “classification.” That was true 60 years
ago {Matter of Armco Drainage and Metal Products, Inc. v. State of New York, 285
AD 236 (1st Dept 1954) (“The trade occupation is determined in a process referred
to as ‘classification’”)), it was true 30 years ago {Monarch Electrical Contracting
Corp. v. Roberts, 70 NY2d 91, 96 (1987) (“Respondent DOL has interpreted Labor
Law Section 220 as amended, with judicial approval, to require classification of
workers by ... expertise as carpenters, ironworkers, roofers, etc.”)) and it remains
true today {New York Independent Contractors Alliance v. Liu, 43 Misc. 3d 443,
446 (2013) (“[bjefore setting the prevailing wages for a trade or an occupation, the
27
Comptroller classifies work into a specified trade or occupation”)). And while we
cite a mere three (3) cases to make our point, we urge the Court - as we urged the
Fourth Department - to randomly select any Section 220 decision, from any era or
court, to confirm that our assertion is accurate. “Area of construction” is nowhere
found; “craft classification” and the like are found throughout these decisions to
denote the craft or type of work performed.
Aside from the absence of any supporting case law, the words and placement
of the words in Section 220 belie the claim that “area of work” was intended by the
Legislature to refer to craft classification. The terms “classification” and “craft
classification” have specific meaning separate and apart from “area of
construction” and/or “area.” The term “classification” appears thirteen (13) times
in Section 220, including two (2) times in Section 220(3-e). In every instance,
“classification” refers to the trade/occupation/craft of the work to be performed.
Conversely, the term “area” appears in Section 220 five (5) times, and in every
instance clearly refers to the geographic area where the construction is to be
performed (401).
More particularly, the Legislature used the terms “craft classification” in the
second sentence of Section 220(3-e) and the similar term “for the classification of
work” immediately thereafter in the third sentence, both usages clearly referring to
the craft classification assigned by DOL. See McKinney’s Cons Laws of NY,
28
Book 1, Statutes § 236 (“[W]here the same word or phrase is used in different parts
of the statute, it will be presumed to be used in the same sense throughout;
Commentary - When, on the one hand, the Legislature uses unlike terms in
different parts of a statute it is reasonable to infer that a dissimilar meaning is
intended”); Albano v. Kirby, 36 NY2d 526, 530 (1975) (“When different terms are
used in various parts of a statute or rule, it is reasonable to assume that a distinction
between them is intended”); Orens v. Novello, 99 NY2d 180, 187 (2002) (“where
... the Legislature uses different terms in various parts of a statute, courts may
reasonably infer that different concepts are intended.”).
Interestingly, DOL itself, just like New York courts and the Legislature, has
never deemed the term “classification” or “craft classification” to hold the same
meaning as the “area of construction.” Defendant Alund, in his April 19, 2005
letter to Jeffrey Carroll (261-262) refers to “classification issues regarding metal
windows, curtain wall, metal entranceways, etc.”; “proper payment to apprentices
for work both in and out of their classification.”; “if the apprentice is working
outside his recognized classification,”; “it is generally the classification of glazier.”
Nowhere does Defendant Alund use the word “area” or the phrase “area of
construction” when describing the type of work, trade or craft to be employed.
And the reason Defendant Alund, in an unguarded moment, repeatedly and
uniformly used the term “classification” to reference the type of work to be
29
performed was because, just like the courts and the Legislature, he understood that
the type of work equates in all instances to the “classification” of the work.
Last, it is of no small import that the phrase “wage rates” immediately
precedes the phrase “area of construction.” The posted prevailing rate of wages
depends not only on the craft classification but on the geographic area in which the
constmction is performed. So, a glazier who performs the installation of curtain
wall in Buffalo on Monday who then travels to Long Island and performs the same
installation of curtain wall on Wednesday will receive a different wage - not
because his trade/craft has changed, but because the area in which the construction
was performed has changed. See Lantry v. State of New York, 6 NY3d 49 (2005);
see also Section 220 (5)(a) - “[t]he ‘prevailing rate of wage’ for the intents and
purposes of this article, shall be the rate of wage paid in the locality, as hereinafter
defined, by virtue of collective bargaining agreements between bona fide labor
organizations and employers of the private sector .. The variation of wage rates
based on the area where the work is performed is memorialized throughout the
statute.
Finally, even were the phrase “area” or “area of construction” to take on the
meaning urged by DOL, it is not clear how that would modify the remainder of
Section 220(3-e). The qualifying condition for apprentice status would still remain
enrollment in “a bona fide program.” If the term “area of construction” was
30
intended to mean craft classification or type of work, so what? It would simply
mean that the Glazier contractor would have to furnish written evidence of the
various Ironworker apprentice rates applicable to the project. And of course, the
contractor would have to pay the applicable apprentice rates “for the area of
construction.” This, Plaintiffs have readily agreed to do.
DOL already knows that its interpretation of Section 220(3-e) does not flow
from the plain language of the statute. That is precisely why DOL asks this Court
to look to Article 23 of the Labor Law and the New York State Constitution.
Notwithstanding its fervent wish otherwise, nothing in Article 23 or the
Constitution imbues DOL with the power to act as a “super legislature” with
respect to Section 220(3-e). Accordingly, because the plain meaning of Section
220(3-e) requires apprentices only to be enrolled in a bona fide apprentice program
which is itself registered with DOL, this Court should reject DOL’s appeal and
affirm the ruling of the Fourth Department.
II. DOL IS ENTITLED TO NO DEFERENCE AS IT SEEKS
TO REWRITE SECTION 220(3-e), NOT INTREPRET IT
Deference to an agency’s interpretation of a governing statute has its place.
But that role is limited to situations where the Legislature has used vague or
technical language in a statute thereby creating ambiguities best informed by
turning to the expertise of the agency. Nothing in the law, however, elevates DOL
31
to the de facto status of a “super-legislature” with powers to ignore the plain
wording of a statute. Simply, deference has its limits and so says this Court.
Here, there is nothing technical, vague or even mildly confusing in the
words chosen by the Legislature to reflect its intent: apprentices registered in “a
bona fide program” can work as such. The language does not limit apprentice
status to apprentices enrolled in “the apprentice program of the trade with the
prevailing wage classification assigned to the work by the Director of the Bureau
of Public Work.” The word “a” is perhaps the simplest word in the English
language and is “used to indicate membership of a class of people or things.”
Oxford Dictionaries, https://en.oxforddictionaries.eom/defmition/a (last visited
Sept. 12, 2017). As the Fourth Department explained in the decision from which
DOL now appeals:
“Although ‘a’ may mean ‘one’ where the overall tenor of
the statute connotes such meaning, that is neither the
usual meaning of the word generally, nor the most
reasonable meaning of the word given the particular
circumstances and statutory language at issue here.
Recognizing that a contrary interpretation of the article
‘a,’ if adopted generally, would lead to no end of absurd
statutory constructions, those courts that have considered
the issue have held that the usual and ordinary meaning
of ‘a’ is not ‘one and only one,’ but rather ‘any number
of or ‘at least one’ - not ‘one and no more’ but rather
‘one or more’”
(400) (citations omitted). There is no need for this Court to step to the side and
defer to the “expertise” of DOL when interpreting the word “a.” Action Electrical,
32
64 NY2d at 221 (“When ... interpreting a statute does not require any technical
expertise, as in the present situation, the courts are not bound by the agency’s
construction” (citations omitted)). See also Matter of Visiting Nurse Service v.
New York State Department of Health, 5 NY3d 499, 506 (2005) (“Although it is
true that an agency’s interpretation of its own regulation generally is entitled to
deference, courts are not required to embrace a regulatory construction that
conflicts with the plain meaning of the promulgated language” (citing Matter of
427 W. 51st St. Owners Corp. v. Division of Housing and Community Renewal, 3
NY3d 337 (2004)); Matter of Trump-Equitable Fifth Ave. Co. v. Gliedman, 62
NY2d 539, 545 (1984) (“where as in the instant case ‘the words of the statute are
clear and the question simply involves the proper application of the provision,
there is little basis to rely on any special competence or expertise of the
administrative agency and its interpretative regulations especially when the
interpretation, as embodied in a regulation, directly contravenes the plain words of
the statute” (citing Kurcsics v. Merchants Mutual Ins. Co., 49 NY2d 457 (1980)).
In finding that Section 220(3-e) places only two restrictions on apprentice
status (enrollment in a bona fide apprentice program registered with DOL), the
Fourth Department was compelled by this Court’s jurisprudence to “give effect to
its plain meaning” (401) (quoting Matter of Tall Trees Constr. Corp. v. Zoning Bd.
of Appeals of Town of Huntington, 97 NY2D 86, 91 (2001)), and not permitted to
33
“resort to extrinsic material such as legislative history or memoranda.” Id. And
because DOL’s interpretation “is contrary to the plain meaning of the statutory
language” (399) (quoting Matter of Raritan Dev. Corp. v. Silva, 91 NY2D 98, 100
(1997)), DOL is not entitled to any deference.
Here, the Fourth Department simply applied and enforced the longstanding
jurisprudence of this Court to find that that DOL is not owed any deference in its
interpretation of a plainly worded statute. Accordingly, DOL’s contention
otherwise is without a rational basis, and for this reason this Court should affirm
the Fourth Department’s ruling.
III. DOL’S CLAIM THAT APPLYING THE PLAIN
MEANING RULE TO SECTION 220(3-e) WILL RESULT
IN APPRENTICES PERFORMING THE WORK OF ANY
CRAFT AS APPRENTICES IS INVALID
As argued above, and as the Fourth Department acknowledged, the plain
meaning of Section 220(3-e) forecloses any deference to which DOL might
otherwise be entitled, and for that reason its interpretation of Section 220(3-e) must
also be rejected by this Court. Notwithstanding the firm foundations on which
these conclusions rest, Plaintiffs would be remiss not to address the purported
consequences DOL argues will follow from a plain reading of the statute. Indeed,
DOL argues that the Fourth Department’s plain reading of Section 220(3-e) will
lead to widespread abuse of apprentices, while DOL’s own interpretation of the
34
statute will protect the State’s apprenticeship system by ensuring that apprentices
receive relevant training. DOL’s Brief 37-39. DOL’s claims are invalid and
should be rejected by this Court, for at least two reasons.
First, DOL’s arguments downplay (or outright ignore) the limitations
already placed on apprentices and apprentice programs under Article 23 of the
Labor Law, which already work to curb the abuses of which DOL speculates.
Second, DOL’s interpretation of 220(3-e) actually harms apprentice programs,
apprentices, the contractors that utilize them (and the taxpayers) by restricting
access to apprentices wherever the programs in which they are registered overlap.
Such results neither cohere with a plain reading of the Labor Law, nor do they
comport with the State’s goal of expanding New York’s apprentice programs. See,
e.g., https://www.govemor.ny.gov/news/govemor-cuomo-announces-42-million-
federal-funding-secured-expand-new-yorks-apprenticeship (last visited Sept. 13,
2017).
A. The New York State Labor Law already prohibits apprentices
from performing tasks outside the scope of their apprentice
programs, without regard to Section 220 (3-e).
As a threshold matter, DOL’s existing apprenticeship mles prohibit
registered apprentice programs from teaching outside of DOL-approved curricula.
See generally Affidavit of Marcia Johnson (293-305), Supplemental Affidavit of
Gregory Stoner (306-316), and Supplemental Affidavit of Krista Lehde (317-324).
35
Pursuant to Labor Law, Article 23, Section 811(l)(f), DOL retains the power (and
duty) to, inter alia, “terminate and cancel any apprenticeship agreement in
accordance with the provisions of such agreements.” Moreover, as referenced and
explained by former DOL Apprentice Training Representative Marcia Johnson,
Part 601.9 of DOL’s regulations “(Voluntary and Formal Deregistration of
Registered Programs”), subsection (b), gives the Commissioner the authority to
deregister an apprentice program if it fails to abide by its Apprentice Training
Program Registration Agreement (“Apprentice Agreement”) (296).
The provisions of these Apprentice Agreements require the Program
Sponsor (DC4 and FTI) to, inter alia, “follow and comply with the approved Work
Process” (296, 305). See also Apprenticeship Agreement Terms (316) (“Training
and employment must conform to the terms and conditions for this trade in the
Sponsor’s registered program”)). Additionally, the terms of the Apprenticeship
Agreement also require DC4 and FTI, inter alia, “[t]o employ the Apprentice to
learn the craft or trade” for which the apprentice is registered and to train the
Apprentice in conformity with “the terms and conditions for this trade in the
Sponsor’s registered program” (309) (quoting Apprenticeship Agreement at
Section 2(1)(a) (316) (emphasis added)). As FTI’s Director of Apprenticeship and
Journeyman Retraining and Works, Gregory Stoner, explains in his Supplemental
Affidavit (306-316), FTI is required to file with DOL a completed Apprenticeship
36
Agreement for each apprentice registered in the DC4 Glazier Apprentice Program
(309). Thus, where an apprentice program fails to teach the work processes
included in its DOL-approved curricula, DOL is empowered to deregister the
program under Labor Law Section 811 and Part 601 of DOL regulations,
irrespective of Labor Law Section 220(3-e).
Further, as a matter of economics, no glazing contractor (or any contractor in
any other trade, for that matter) has any interest in employing unskilled apprentices
to perform work outside of the scope of their apprentice program. See, e.g.,
Supplemental Affidavit of Krista Lehde, a representative of Plaintiff T.G.R.
Enterprises, Inc. (318) (“...[it] would make absolutely no economic sense to
employ apprentices who know nothing about the work of glaziers to perform our
work”). As further explained by Affiant Lehde:
Put simply, [glazing contractors] operate in highly
competitive markets and in a technically advanced trade
where the training and skill level of our employees,
including apprentices, spells the difference between
economic success and failure. ... [W]e make monetary
contributions to maintaining the Glazier Apprentice
Program ($1.10/hour worked) as opposed to hiring
bakers or roofers because we value the ongoing training
the apprentices receive (or should be receiving, as the
case may be). As a company we are not interested in
failing.
(318-319).
37
Accordingly, because utilization of apprentices to perform work outside the
scope of their respective apprentice programs is prohibited, both de jure and de
facto, curbing such violations does not require DOL’s ultra vires revision of the
plain meaning of 220(3-e). Put otherwise, because the Labor Law already provides
mechanisms to regulate and punish (including the ultimate punishment of
deregistration) apprentice programs which abuse the apprenticeship system,
applying the plain meaning rule to Section 220(3-e) will not and cannot instigate
the abuses of which DOL speculates.
B. The DC4 Glazier Apprentice Program has taught the
installation of curtain wall, storefronts and preglazed windows
since its inception and with the imprimatur of DOL.
The ultimate irony in this dispute is that Glazier Contractors are being told
by DOL that they cannot compensate glazier apprentices as apprentices when
performing work required to be taught by their DOL-registered apprenticeship
program. This scenario is wholly different from one where a plumber apprentice
begins laying brick. DOL argues that compensating apprentices when they
perform tasks under a different prevailing wage classification “does not further
their training and is at odds with the prevailing wage mandate, which generally
requires joumey-level compensation.” DOL Brief 39 (emphasis added). DOL
may be correct about the plumber apprentice laying brick (who will not receive any
apprentice credit for the work and whose DOL-approved apprentice curriculum
38
does not include “bricklaying” as a work process). But this argument completely
misses the mark with respect to work processes that are included in a DOL-
approved apprentice curriculum.
Plaintiffs agree that if a plumber apprentice is employed to perform
bricklayers’ work on a taxpayer financed project, that plumber apprentice is not
entitled to be treated as an apprentice- but only because laying brick is not part of
the plumber apprentice curriculum, and therefore performance of such work as an
apprentice violates the terms of the Apprentice Agreements for programs
registered with DOL. Such abuses, as noted above, are specifically addressed by
Labor Law Section 811 and DOL regulations under Part 601. But again, these
purely speculative violations have nothing to do with the application of Section
220(3-e) and in no way address the facts at issue in this case.
Indeed, this case centers on glazier apprentices seeking to perform work
required by the (DOL-approved) DC4 Glazier Apprentice Program curriculum.
See generally Affidavit of Gregory Stoner and attached Exhibits (88-173) and
Supplemental Affidavit of Gregory Stoner and attached Exhibits (306-316).
Compare New York State DOL Plumbers Work Processes,
http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/46-273.pdf (last visited
August 25, 2016) with New York State DOL Bricklayers Work Processes,
http://labor.state.ny.us/apprenticeship/pdf/ActiveTrades/1 l-025.pdf (last visited
39
August 25, 2016). Thus, DOL’s belief that apprentices registered per the plain
meaning of Section 220(3-e) may not receive apprentice wages for performing
work included in their apprentice curriculum is absurd.
DOL, of course, claims that the terms “curtain wall,” “storefront” and
“preglazed windows,” when used in the DC4 Glazier Apprentice Program
Curriculum, are only a short hand for glazier-specific tasks related to such work
processes (250). These claims, however, have been completely rebutted by former
DOL Apprentice Training Coordinator Marcia Johnson, who affirmed that “the
Work Processes of the Glazier Apprentice Program included, among other
tasks/skills, learning how to install all manner of curtain wall, store fronts and
entrances and pre-glazed windows” (294). See also Fourth Department’s
Memorandum and Order (398) (“such work remains a work process of glaziers, as
defined by the work curriculum promulgated and approved by the DOL”).
It matters not that the work at issue (the installation of curtain wall,
storefronts and preglazed windows) is classified as ironworkers work for purposes
of initially determining both joumeyworker and apprentice prevailing wages.
Nowhere in the New York State Labor Law generally, or Section 220(3-e) in
particular, does it state that apprentices enrolled in a bona fide apprenticeship
program registered with DOL may not be paid as apprentices for performing DOL-
mandated apprentice work processes which overlap with the work processes of a
40
different trade including the one to whom the work is classified for prevailing
wage purposes. It is DOL, not the New York State Legislature that has added the
unwritten condition at the center of this dispute. Indeed, 220(3-e) does not limit
the work that may be performed by apprentices, and for good reason: the scope of
an apprentice program is determined by DOL when it creates the curriculum, and
the scope of an apprentice’s work is limited only to and by that curriculum.
Further, it makes no difference that one construction trade’s apprentice
curriculum may overlap with another trade’s apprenticeship curriculum, as 220(3-
e) anticipates such overlap between the trades. Again, joumeyworker to apprentice
ratios vary from craft to craft. Thus, the second sentence of 220(3-e) (“The
allowable ratio of apprentices to journeymen in any craft classification shall not be
greater than the ratio permitted to the contractor as to his force on any job under
the registered program”) would be superfluous unless the Legislature recognized
that there are overlapping work processes between trades and, more particularly,
the joumeyworker to apprentice ratios contained in the various apprenticeship
programs vary. DOL’s arguments to the contrary ignore the simple crafting of
Section 220(3-e).
Moreover, as DOL now acknowledges, work processes in the constmction
industry are clearly delineated on a craft by craft basis, and overlap between the
different constmction trades is common. Indeed, on the federal level, Congress has
41
long-recognized that the construction trades overlap, and it amended the National
Labor Relations Act in 1947 to, inter alia, resolve disputes between competing
crafts over work jurisdiction. See 29 U.S.C. § 158(b)(4)(D) (proscribing certain
conduct by a union designed to pressure an employer to use its members to
perform certain work instead of using the members of another union); see also 29
U.S.C. § 160(k) (empowering the National Labor Relations Board to hold hearings
to resolve work jurisdiction disputes). In other words, it is commonplace in the
construction industry that work jurisdiction among and between two or more crafts
will overlap in some areas. But it does not follow that, when they overlap, one of
the crafts “owns” the exclusive right to train its workers in the applicable work
processes. DOL’s position here is extreme and not sanctioned by law, either
federal or state.
Take the craft of “welding.” The ironworkers, the sheet metal workers, the
plumbers and probably a host of other trades teach welding as part of their
apprenticeship curricula. See New York State DOL Plumber Work Processes,
http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/13-180.pdf (last visited Sept.
12, 2017); New York State DOL Sheet Metal Worker Work Processes,
http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/15-201.pdf (last visited Sept.
12, 2017) and New York State DOL Ironworker Work Processes,
http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/15-221.pdf (last visited Sept.
42
12, 2017). And of course, the welders teach welding. See New York State DOL
Welder Work Processes, http://labor.ny.gov/apprenticeship/pdfs/ActiveTrades/33-
295.pdf, (last visited Sept. 12, 2017). To Plaintiffs’ knowledge, DOL permits
apprentices in DOL-registered ironworker, sheet metal worker and plumber
apprentice programs to perform welding on public works projects as apprentices.
Presumably, apprentices in these trades can perform welding at apprentice-level
wages because welding is a work process that is included in their apprentice
curricula - just as the installation of curtain wall, storefronts and preglazed
windows are work processes included in the DC4 Glazier Apprentice Program
curriculum.
Given these circumstances, there should not be a scintilla of doubt that a
plain reading of 220(3-e), as the Fourth Department found, permits glazier
apprentices to be compensated at apprentice rates - whatever DOL determines
those apprentice rates to be - when completing the requirements of the apprentice
program to which they are indentured.
C. Affidavits in support of Plaintiffs remain unrebutted.
The unrebutted facts of this case demonstrate that, inter alia, the DC4
Glazier Apprentice Program has taught the work at issue since its inception, DOL
has required that it teach this work for as long as the program has been registered,
the lion’s share of this work takes place on taxpayer financed projects and glazier
43
apprentices cannot and will not gain the skills necessary to perform this work at a
skill level expected of joumeyworkers if they are not afforded work opportunities
as apprentices on taxpayer financed projects.
We implore this Court - as we implored the Fourth Department - to review
the fact Affidavits in the Record on Appeal. These Affidavits - which, again,
remain completely unrebutted by DOL - demonstrate that, inter alia, the DC4
Glazier Apprentice Program has been required to teach, and has in fact taught, the
installation of curtain wall, storefronts and preglazed windows from its inception.
That is a critical distinction from the fantastical scenarios DOL has dreamed up in
its papers - scenarios which, in the very unlikely event they would come to pass,
would presumably be met by enforcement of the terms of the Apprenticeship
Agreements, Labor Law Section 811 and the Commissioner of Labor’s regulations
under Part 601.
More specifically, the Affidavits, and the exhibits attached thereto
demonstrate, inter alia, the following:
• Affidavit of Marcia Johnson (293-305): Ms. Johnson, DOL’s former
Apprentice Training Coordinator, explains that apprentices are required, as a
condition of their apprenticeship, to perform the Work Processes set out in
their apprentice program’s curriculum. She further explains that, as an
Apprentice Training Coordinator, she was tasked with monitoring the DC4
Glazier Apprentice Program to ensure that the Work Processes outlined in
their curriculum were being taught to apprentices, both in the classroom and
in the field. Ms. Johnson notes that, during her time as an Apprentice
Training Coordinator for DOL, the Work Processes of the DC4 Glazier
Apprentice Program included learning how to install “all manner of’ curtain
44
wall, storefronts and preglazed windows, and that a failure to follow and
comply with the approved Work Processes for the Program could result in
decertification by DOL.
• Supplemental Affidavit of Krista Lehde (317-324): Ms. Lehde, Secretary
of Plaintiff TGR, explains, inter alia, that “[a]lcohol abuse counselor
apprentices...plumber apprentices, electrician apprentices...do not get
trained in the Glaziers Apprentice Program Work Processes because such
training is not included in their respective apprentice curriculum.” R. 319.
Further, Ms. Lehde explains that TGR, like other glazing contractors, has no
economic incentive to hire apprentices other than glaziers (whether bakers,
plumbers, laborers, etc.) to perform the glazier work processes taught by the
DC4 Glazier Apprentice Program, given the highly specialized and technical
nature of the work. Similarly, Ms. Lehde explains, glazier apprentices have
no incentive to perform work outside of their curriculum because they will
not receive credit toward their progress in the apprentice program. For these
reasons, and others, Ms. Lehde concludes that DOL’s arguments to the
contrary “are disingenuous and make no sense” (321).
• Affidavit of Gregory Stoner (88-173): The installation of curtain wall,
storefronts and preglazed windows are core skills required for the work
performed by DC4’s signatory contractors and have long been included in
the apprentice program’s DOL-approved curriculum. The lion share of
curtain wall, storefront and preglazed window installation takes place on
taxpayer financed projects, and apprentices will only be hired on such
projects when they can be paid as apprentices. FTI has been recognized by
the State as the premiere apprentice program for glaziers throughout
Western and Central New York, having recently received $700,000 in State
funds to upgrade its training facilities.
• Supplemental Affidavit of Gregory Stoner (306-316): Mr. Stoner,
Director of Apprenticeship and Journeyman Retraining and Works for FTI,
explains in detail the terms of DOL-registered DC4 Glazier Apprentice
Program’s DOL-approved Work Processes (the curriculum which the
Program must teach) and the Apprenticeship Agreement (which the
apprentice and Program must sign, and of which a copy is sent to DOL).
Mr. Stoner explains that, per the terms of the Apprenticeship Agreement, the
Program must follow and comply with its DOL-approved Work Processes or
risk decertification.
45
• Affidavit of Michael Spaccaforno (174-182): Plaintiff Fomo, a DC4
signatory glazing contractor, performs 70%-80% of its work on taxpayer
financed projects. Fomo will not hire apprentice glaziers on such projects
because DOL is prohibiting the firm from compensating them at apprentice
wage rates. 90% of Fomo’s work consists of the installation of curtain wall,
storefronts and preglazed windows. Without a steady supply of highly
skilled glaziers, Fomo will not be able to compete as a glazing company.
• Affidavit of Krista Lehde (183-189): Plaintiff TGR, a DC4 signatory
glazing contractor, performs 90% of its work on taxpayer financed projects.
TGR will not hire apprentice glaziers on such projects because DOL is
prohibiting the firm from compensating them at apprentice wage rates.
Without a steady supply of highly skilled glaziers, TGR will not be able to
survive as a glazing company.
• Affidavit of John Hogan (190-195): Plaintiff Hogan Glass, a DC4
signatory glazing contractor, performs 50% of its work on taxpayer financed
projects. Hogan Glass will not hire apprentice glaziers on such projects
because DOL is prohibiting the firm from compensating them at apprentice
wage rates. 90% of Hogan Glass’ work consists of the installation of curtain
wall, storefronts and preglazed windows. Without a steady supply of highly
skilled glaziers, Hogan Glass will not be able to survive as a glazing
company.
• Affidavit of Demetrios G. Stothopoulos (196-205): Plaintiff Ajay Glass, a
DC4 signatory glazing contractor, performs 70% of its work on taxpayer
financed projects. Ajay Glass will not hire apprentice glaziers on such
projects because DOL is prohibiting the firm from compensating them at
apprentice wage rates. In 2013 Ajay Glass performed more than $35 million
of glazing and related glasswork. 95% of the installation of curtain wall,
storefronts and preglazed windows in the glazing industry is performed by
glaziers.
• Affidavits of Paul J. Leone (206-211) and Thomas A. Jerge (212-217),
taxpayers: Plaintiffs Leone and Jerge participate in this action to challenge
DOL’s illegal labor cost inflation of public projects by its failure to allow
glazing contractors to compensate glazier apprentices at applicable
Ironworker apprentice rates. A recent taxpayer financed project for the
Rochester City School District (Mr. Leone resides in Rochester) was
46
performed by Ajay Glass without utilizing apprentices, the hiring of which
would have lowered the cost of the project substantially. See Affidavit of
Demetrios G. Stothopoulos (196-205).
• Affidavit of Christopher J. Powers (218-223): Plaintiff Powers, a glazier
apprentice enrolled in the DOL-registered DC4 Glazier Apprentice Program,
was required to perform “menial tasks” in lieu of curtain wall installation on
a project at SUNY Fredonia Center. Mr. Powers explains that his employer,
Ajay Glass, would not allow him to install curtain wall because he would
then have to be compensated at the Ironworker joumeyworker wage rate (as
opposed to the Ironworker apprentice wage).
• Affidavit of Rachel Terhart (224-226): Plaintiff Terhart, a former glazier
apprentice enrolled in the DOL-registered DC4 Glazier Apprentice Program,
was “forbidden” from installing curtain wall because the company “could
not afford to pay” her the ironworker joumeyworker wage rate (as opposed
to the Ironworker apprentice wage).
• Affidavit of Michael Fitzgerald (227-230): Plaintiff Fitzgerald is the
Apprentice Coordinator for the DOL-registered DC4 Glazier Apprentice
Program and a former Superintendent for glazing contractor BRG
Corporation. Mr. Fitzgerald explains, inter alia, that DOL’s policy of
forbidding glazier apprentices to work as apprentices continues to
negatively affect taxpayers (inflated costs of taxpayer financed projects),
glazing contractors (pool of skilled employees continues to shrink) and
glazing apprentices (lost opportunities for critical on-the-job training).
• Affidavit of Mark Stevens (78-87): The DC4 Glazier Apprentice Program
is the lifeblood of DC4’s glazier unions, and is designed to train and supply
skilled joumeyworker glaziers to its signatory contractors. Core skills taught
in the Program include the installation of curtain wall, storefronts and
preglazed windows.
The above-referenced Affidavits- all included in the Record on Appeal - highlight
the deleterious consequences of DOL’s position. Review of the Affidavits reveals
that, before the Fourth Department stmck down DOL’s mle:
47
Glazing contractors were forced to substantially increase the cost of their
bids on taxpayer financed projects,
Because contractors recoil at paying joumeyworker wages to unskilled or
semi-skilled apprentices, glazing apprentices had great difficulty obtaining
the experience necessary to progress through and eventually graduate from
the apprenticeship program,
The pool of skilled glaziers was significantly diminished,
The sponsor of the DC4 Glazier Apprentice Program (recently awarded
$700,000 in State funds to improve its training facilities) was in crisis mode,
constantly fearing decertification as a result of job opportunities for its
apprentices being strangled by DOL’s policy, and
Ironworker apprentices, clearly the intended beneficiaries of DOL’s policy,
were actually not benefiting since Ironworker Contractors rarely bid on,
obtain or perform the subject work.
The Fourth Department’s decision has begun to reverse these effects. And,
because DOL’s interpretation 220(3-e) is contrary to the plain meaning of the
statute, the Fourth Department’s decision should not be disturbed.
IV. DOL’S ATTEMPTS TO PROTECT THE
IRONWORKERS UNION’S APPRENTICE PROGRAM
FROM COMPETITION AT THE EXPENSE OF THE
GLAZIERS UNION’S BONA FIDE APPRENTICE
PROGRAM CONTRAVENES THE PREVAILING RATE
STATUTE GENERALLY AND ITS APPRENTICE
PROVISIONS SPECIFICALLY
Plaintiffs respectfully contend that it is not within the purview of the courts
to construe statutes based on competing views of public policy. The Fourth
Department (397-401) and this Court’s jurisprudence concur. The citizens of New
48
York elect and pay for a Legislature to weigh, debate and formulate prudent public
policy. See Martin v. Curran, 303 NY 276, 280 (1951) (“But such considerations
of policy cannot be allowed to control our decision when, as here, we are under the
command of a plainly stated, plainly applicable statute ... this court does not revise
statutes, in an effort to eliminate seeming injustices, or to bring the law into accord
with modem fact”). Notwithstanding this hallowed principle, DOL’s arguments
before Supreme Court, the Fourth Department and now to this Court are in large
measure a plea to ignore the plain meaning of Section 220(3-e) in favor of
effectuating “sound public policy.” Ironically, the public policies favored by DOL
are neither sound nor supportive of the judicially recognized virtues of the
prevailing rate statute, including that part which addresses apprentice training.
A. Section 220’s Goal of Insuring That Public Bodies Pay the
Wages/Supplements That Prevail in a Locality is Being
Subverted by the Denial of Apprentices to Glazier Contractors.
While the plain and unambiguous language of 220(3-e) renders the
examination of “extrinsic material such as legislative history or memoranda”
unnecessary” (401), the public policies supporting Section 220 and 220(3-e)
support the Fourth Department’s mling. “Labor Law § 220 was enacted to insure
that employees on public works projects are paid wages equivalent to the
prevailing rate of similarly employed workers in the locality where the contract is
to be performed ...” Matter of Beltrone Const. Co. v. McGowan, 260 AD2d 870,
49
871-872 (3d Dept 1999). Put otherwise, Section 220 “was intended to thwart what
had become a widespread competitive practice among contractors of exploiting the
labor force in order to submit the lowest bid for public work.” Monarch Electrical
Contracting Corp. v. Roberts, 70 NY2d 91, 95 (1987). The whole purpose of the
statute is to insure to the greatest extent possible that taxpayer dollars are spent so
as not to undercut the wages/supplements that prevail in local labor markets. In
other words, the statute is intended to restrain a race to the bottom at the expense of
employee compensation. But nothing in the statute, case law or legislative history
suggests Section 220 was intended to artificially inflate the wages that truly prevail
in the private and local markets. The whole purpose, again, of collecting data,
posting rates and enforcing Section 220 is to insure wages equivalent to the
prevailing rate of similarly employed workers in the locality are paid. Beltrone
Construction, 260 AD2d at 871-872.
By obstructing the use of glazier apprentices on public works contracts DOL
is not in any sense protecting the rates that actually prevail in the localities. In fact,
the agency is distorting them. It is not disputed by DOL that in the 33 counties of
Upstate New York the Plaintiffs contractors have a virtual market monopoly (both
private and public) on the installation of curtain wall, store fronts and entrances
and preglazed windows. And the Glazier Contractors, who are particularly
knowledgeable about both the public and private markets, uniformly state that
50
public customers pay far more for the exact same work than their private market
counterparts (193-194, 201-202, 178-179, 186-187). Why? Because of a purely
political decision of DOL, Glazier apprentices are denied work opportunities to
perform the exact same work on public projects that they perform on private
projects. This represents distortion, not protection, of the rates that actually prevail
in the localities.
Closely related to the inflation of wages payable on taxpayer financed
projects is the harm being inflicted on taxpayers such as Plaintiffs Leone and Jerge.
The courts have recognized that Section 220 “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 and
Sheet Metal Co. v. Town of Parish, 139 AD2d 97, 104 (4th Dept 1988) (citing
Associated Builders and Contractors v. City of Rochester, 67 NY2d 854 (1986),
Fata v. Healy Co., 289 NY 401 (1943), and General Building Contractors, Inc. v.
Bd. Of Trustees, 42 AD2d 660 (3d Dept 1973)). Here, Plaintiffs contractors have
provided affidavits, wholly uncontested by the DOL, setting forth that the inability
to employ apprentices on public works projects directly results in substantial
increased costs to the taxpayers who underwrite these projects (201) (“on a larger
sized publically funded project, this means the taxpayers are paying tens of
thousands, if not hundreds of thousands of dollars in unnecessary inflated and
51
artificial costs simply because we are forbidden from utilizing glazier apprentices,
all of whom are indentured in the Glaziers Union’s bona fide DOL approved
apprentice program.”). Suffice it to note, DOL’s interpretation of Section 220
neither respects the taxpayers nor honors the underlying policies recognized by the
courts.
B. Section 220’s Goal of Equalizing Contractors’ Minimum
Labor Costs is Subverted by the Denial of Apprentices to
Glazier Contractors.
One of the primary policy goals of Section 220 is “to equalize contractors’
minimum labor costs,” thus taking those costs out of competition. Action
Electrical, 64 NY2d at 222. See also Associated Builders, 67 NY2d 854; Monarch
Electrical, 70 NY2d 91. Indeed, employees and taxpayers alike are well served
when bids are won based on the training, skills and experience of a contractor’s
workforce - and not because one craft’s apprentices are deemed worthy by the
DOL to exclusively perform the work. Ironworker contractors have been provided
by Defendant Alund (himself a former ironworker, from a long line of
ironworkers) with an artificial, exclusive monopoly on access to apprentices and
thus access to decidedly lower labor costs. To apply Section 220(3-e) to favor one
registered apprentice program to the detriment of other registered programs is to
reject a key purpose of the prevailing wage statute, to wit the equalization of labor
costs as between competing contractors. There is absolutely nothing in Section
52
220, the case law surrounding it or its legislative history that suggests the statute
was intended to insure unequal footing vis-a-vis labor costs. Yet, that is precisely
what DOL accomplishes by virtue of its unauthorized amendment of Section
220(3-e) and the concomitant grant of a monopoly to the Ironworkers’ Apprentice
Program.
C. Section 220 (3-e)’s Goal of Preventing Contractors From
Utilizing “Sham” Apprentice Programs is Not Advanced by
Denying Plaintiffs Contractors Access to Apprentices
Registered in the Glaziers Bona Fide Apprentice Program.
As recognized by this Court, the impetus behind the addition of Section
220(3-e) to the statute was to curtail the proclivity of certain contractors to “set up
sham training programs which were not supervised by the State, classify persons as
apprentices regardless of skill level, and pay them less than journey-level wages.”
Monarch Electrical, 70 NY2d at 95. In other words, Section 220(3-e) set forth a
bright line between programs that are bona fide, registered with and regulated by
DOL on the one hand and “sham” non-registered, non-regulated programs on the
other. Here, it is not in dispute that the DC4 Glaziers Apprentice Program has for
decades been bona fide, registered and regulated by DOL (238). Indeed, the DC4
Glaziers Apprentice Program is perhaps the premier training facility in the nation
teaching young people how to install curtain wall, store ffonts/entrances and
windows, and in 2013 qualified for $700,000 in additional New York State public
monies to upgrade its Cheektowaga, New York facility (91).
53
Unfortunately, while the Section 220(3-e) provisions were aimed at denying
contractor access to “sham” programs, DOL has redrawn the bright line to now
deny access to the premier apprentice program in the industry. And they have
justified their actions on the grounds that it is necessary to assist an anemic,
struggling Ironworkers program (276). So now, on one side DOL has lumped
together the universe of non-regulated, non-registered sham apprentice programs
with the DC4 Glaziers Apprentice Program: neither will be permitted to supply
apprentices to perform the subject work on taxpayer funded projects. And on the
other side of the redrawn bright line stands the Ironworkers apprentice program
now given favored status simply because “the Commissioner can properly find that
an ironworkers training program is needed” (276). DOL has no authority, absent a
statutory amendment or a pivot by the courts on their policy analysis, to redraw the
line by lumping legitimate programs with sham programs.
Last, among the stated public policy goals of apprenticeship training is to
“develop skilled craftsmen and help meet the increasing needs for such workers in
the state’s labor force ... and to encourage industry and labor to institute training
Labor Law, Article 23, Apprenticeship Training, Section 810,programs.”
Statement of Public Policy. Nowhere in Article 23 or the case law is there any
suggestion that the disqualification of entire groups of legitimate apprentices from
receiving training on public works projects serves to advance these public policies.
54
Indeed, if DOL were truly concerned with developing a new generation of skilled
workers in numbers sufficient to meet the needs of the industry, it would give full
effect to the plain meaning of Section 220(3-e). And it makes no sense from the
Glazier Contractors’ perspective to invest millions of dollars in state-of-the-art
training facilities only to have DOL turn around and deny them access to the
registered apprentices.
DOL’s interpretation of 220(3-e) - if reinstated by this Court - all but
guarantees that opportunities to train young people in the skilled trades will
continue to diminish, as will any incentive for industry and labor to institute
legitimate training programs. Accordingly, this Court should reject DOL’s
irrational interpretation of Section 220(3-e) and the consequences which flow from
it, and affirm the Fourth Department’s decision.
V. PLAINTIFFS MERELY AIM TO HAVE GLAZIER
APPRENTICES PAID AS APPRENTICES ON
TAXPAYER-FINANCED PROJECTS, AND DO NOT
CHALLENGE THE APPLICABLE PREVAILING WAGE
CLASSIFICATION AND APPRENTICE RATES AS
DETERMINED BY DOL
Contrary to DOL’s claims - and as Plaintiffs have stated repeatedly -
Plaintiffs are not challenging or asking this Court to revisit its decision in Lantry v.
State of New York, 6 NY3d 49 (2005). Indeed, the emphasis on Lantry is an issue
of DOL’s own making. To the limited extent Plaintiffs have been compelled to
55
reference Lantry in these proceedings, it has been in response to DOL’s
mischaracterizations of the parties’ dispute. Simply put, this case has nothing to do
with Lantry. no one is challenging DOL’s right to determine prevailing wage
classifications, and the Glazier Contractors have repeatedly emphasized that they
are willing to pay all appropriate and posted prevailing rates. DOL’s insinuations
otherwise are false and misleading, and should be rejected by this Court, as they
were by the Fourth Department.
CONCLUSION
As the Fourth Department held, “[t]he function of the courts is to enforce
statutes, not to usurp the power of legislation, and to interpret a statute where there
is no need for interpretation, to conjecture about or to add to or to subtract from
words having a definite meaning, or to engraft exceptions where none exist are
trespasses by a court upon the legislative domain” (399) (citations omitted).
Because the plain language of Section 220(3-e) does not require or permit
interpretation, and because DOL’s rule is contrary to the plain meaning of the
statute, DOL is not entitled to deference.
Accordingly, because DOL exceeded its authority in enforcing a rule that
imposes restrictions not embodied in Labor Law Section 220(3-e), Plaintiffs
respectfully request that this Court reject DOL’s appeal and affirm the Fourth
Department’s ruling.
56
Dated: Buffalo, New York
September 22, 2017
Respectfully submitted,
RicharcÿD. Furlgng, I
John A. Collins, Esq.
Joseph L. Guza, Esq.
LIPSITZ GREEN SCIME CAMBRIA LLP
Attorneys for Plaintiffs
DC4, FTI, Thomas A. Jerge, Paul J. Leone,
Christopher J. Powers and Rachel Terhart
42 Delaware Avenue, Suite 120
Buffalo, NY 14202
(716) 849-1333
rfurlong@lglaw.com
jcollins@lglaw.com
jguza@lglaw.com
'Sq-
Daniel P. Adams, Esq.
ADAMS BELL ADAMS, P.C.
Attorneys for Plaintiff
Fomo Enterprises, Inc.
28 East Main Street, Suite 600
Rochester, NY 14614
(585) 232-6900
dadams@abalawpc.com
Patricia Gillen, Esq.
DUKE HOLZMAN
PHOTIADIS & GRESENS, LLP
Attorneys for Plaintiffs
TGR Enterprises, Inc. and Hogan Glass,LLC
701 Seneca Street, Suite 750
Buffalo, NY 14210
(716)855-1111
pgillen@dhpglaw.com
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Edward A. Trewett, Esq.
HARRIS BEACH PLLC
Attorneys for Plaintiff
Ajay Glass & Mirror Co.
99 Gamsey Road
Pittsford, NY 14534
(585)419-8643
ETrevvett@HarrisBeach,com
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PRINTING CERTIFICATION
Pursuant to 22 NYCRR § 500.13 (c) (1)
The foregoing brief was prepared on a computer. A proportionately spaced
typeface was used, as follows:
Name of Typeface:
Point Size:
Line Spacing:
Times New Roman
14
Double
The total number of words in the brief, inclusive of point headings and
footnotes and exclusive of pages containing the table of contents, table of citations,
printing certification, or any authorized addendum containing statutes, rules,
regulations, etc. is 13,133.
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