To be argued by Owen Demuth
Time requested: 15 minutesAPL-2017-00087
Appellate Division, 4th Dept. No. CA 16-00663; Erie County Index No.: 801775/2015
i§>tate of dÿeto §9ork
Court of Uppeate
INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, DISTRICT
COUNCIL NO. 4, BY ITS SECRETARY-TREASURER, MARK STEVENS; and
INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, 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,
- AGAINST -
THE NEW YORK STATE DEPARTMENT OF LABOR, AND MARIO MUSOLINO, AS
ACTING COMMISSIONER OF THE 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.
BRIEF FOR DEFENDANTS-APPELLANTS
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendants-Appellants
The Capitol
Albany, New York 12224
Telephone: (518) 776-2053
BARBARA D. UNDERWOOD
Solicitor General
ANDREW D. BING
Deputy Solicitor General
OWEN DEMUTH
Assistant Solicitor General
of Counsel Dated: August 9, 2017
Reproduced on Recycled Paper
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES iii
PRELIMINARY STATEMENT 1
JURISDICTIONAL STATEMENT ... 4
QUESTION PRESENTED 5
STATUTORY AND REGULATORY BACKGROUND 6
A. The Prevailing Wage Law 6
B. The Apprenticeship Statutes 8
1. Labor Law § 220(3-e) 8
2. Labor Law Article 23 10
3. The DOL Interpretation at Issue 12
STATEMENT OF THE CASE 13
The Classifications at IssueA. 13
B. The Complaint 15
C. DOL’s Motion for Summary Judgment and
Dismissal of the Complaint 16
D. Supreme Court’s Decision 19
E. The Fourth Department’s Decision 20
i
TABLE OF CONTENTS (cont'd)
PAGE
ARGUMENT
DOL’S INTERPRETATION IS RATIONAL AND CONSISTENT WITH THE
PLAIN LANGUAGE AND STATUTORY PURPOSES OF LABOR LAW § 220
AND ARTICLE 23 . 23
A. DOL’s Interpretation of the Prevailing Wage Law
is Entitled to Deference 25
B. DOL Properly Read the Statute to Condition the Payment
of Apprentice Wage Rates on the Apprentices’ Performance
of Tasks Within Their Trade Classification 28
Glazier apprentices are not working “as such” within
the meaning of Labor Law § 220(3-e) when they
perform tasks classified as part of the ironworkers’
trade or occupation, and thus must be paid as
journeyworkers for that work
1.
28
Labor Law § 220(3-e) requires that contractors must
use appropriate wage rates “for the area of
construction” prior to using any apprentices on the
contract work
2.
34
DOL’s interpretation of Labor Law § 220(3-e)
furthers the goals of Labor Law Article 23 to ensure
that apprenticeship program provide relevant
training .
3.
37
The Fourth Department’s Ruling Undermines the Public
Policies of the Prevailing Wage Law and Labor Law
Article 23
C.
40
CONCLUSION 48
ii
TABLE OF AUTHORITIES
CASES PAGE
Albany Elec. Contrs. Assn. v. Angello,
6 A.D.3d 920 (3d Dep’t 2004) 12, 27
Brown, Matter of v. Wing,
93 N.Y.2d 517 (1999) 27
Building & Constr. Trades Dep’t v. Donovan,
712 F.2d 611 (D.C. Cir. 1983),
cert, denied, 464 U.S. 1069 (1984) 36
Chesterfield Associates, Matter of v. New York State
Dep’t of Labor,
5 N.Y.3d 597 (2005) 26
Cortland Glass Co., Matter ofv. Angello,
300 A.D.2d 891 (3d Dep’t 2002) 14n
Empire State Chapter of Associated Bldrs. &
Constrs., Inc. v. Smith,
98 A.D.3d 335 (4th Dep’t 2012),
aff’d as modif, 21 N.Y.3d 309 (2013) 35
General Elec. Capital Corp., Matter of v. New York State
Div. of Tax Appeals, Tax Appeals Trib.,
2 N.Y.3d 249 (2004) 34
James Square Assocs. v. Mullen,
21 N.Y.3d 233 (2013) 27, 34
Kelly, Matter of v. Beame,
15 N.Y.2d 103 (1965) 24, 45
Lantry, Matter of v. State of New York,
12 A.D.3d 864 (3d Dep’t 2004),
aff’d, 6 N.Y.3d 49 (2005) 14n
iii
TABLE OF AUTHORITIES (cont’d)
CASES (cont’d) PAGE
Lantry, Matter of v. State of New York,
6 N.Y.3d 49 (2005) passim
Lee v. YES of Russellville, Inc.,
858 So.2d 250 (Ala. 2003) 35
Long v. Adirondack Park Agency,
76 N.Y.2d 416 (1990) 31
Monarch Electrical Contracting Corp., Matter of v. Roberts,
70 N.Y.2d 91 (1987) passim
NLRB v. San Antonio Portland Cement Co.,
611 F.2d 1148 (5th Cir. 1980),
cert, denied, 449 U.S. 849 (1980) 35
O’Brien v. OBrien,
66 N.Y.2d 576 (1985) 33
Raritan Dev. Corp. v. Silva,
91 N.Y.2d 98 (1997).... 27
Samiento v. World Yacht, Inc.,
10 N.Y.3d 70 (2008) 26
Sarco Industries, Matter of v. Angello,
23 A.D.3d 715 (3d Dep’t 2005) ... 42
Seittelman v. Sabol,
91 N.Y.2d 618 (1998) 25
United Constr. Contrs. Assn., Inc., Matter ofv. Levine,
52 A.D.2d 371 (3d Dep’t),
Iv. denied, 39 N.Y.2d 711,
appeal dismissed, 39 N.Y.2d 1057 (1976) 26, 41
iv
TABLE OF AUTHORITIES (cont’d)
CASES (cont’d)
White v. Mass. Council of Contr. Employers,
460 U.S. 204 (1983) .
PAGE
35
NEW YORK STATE CONSTITUTION
article I, § 17 6, 29
STATE STATUTES
C.P.L.R.
§ 2103(b)(2)...,
§ 2211
§ 5513(a)
§ 5513(b)
§ 5602(a)(l)(i).
5
5
5
5
4
Labor Law
article 8..
article 23
18
passim
§ 220
§ 220(3-a)(a)
§ 220(3-a)(a)(ii)
§ 220(3-e)
§ 220(3)
§ 220(3)(a)
§ 220(3)(b)
§810
§811
§811(1)0
§ 811(l)(k)
§815(1),(2)
passim
7
8
passim
26
....6, 9, 20, 29
....6, 9, 20, 29
24, 37, 38, 40
24, 38
11
11, 38
38, 41
v
TABLE OF AUTHORITIES (cont’d)
PAGE
STATE RULES AND REGULATIONS
12 N.Y.C.R.R.
§ 601.1
§ 601.3
§ 601.3(d)
§ 601.3(d)(6)
§ 601.3(g) .
§ 601.5
§ 601.5(c)(7)
§ 601.5(c)(15)
§ 601.6
§ 601.6(d)(e)(2), (f)
§ 601.7(b)
11, 37
38
38
38, 44
38
11
12, 38
12, 38
11
38
38, 41
FEDERAL STATUTES
40 U.S.C.
§3141 36
MISCELLANEOUS
https://www.labor,ny.gov/apprenticeship/general/occupations.shtm 11
General Provisions of Laws Covering Workers:
Apprentices, available http://labor.ny.gov/workerprotection/
publicwork/pwgeneralprovisions.shtm(last visited August 8, 2017) 13
https://web.archive.Org/web/20010915001347/http://www.labor.
state.ny.us:80/html/prevwage/general.htm
(last visited August 8, 2017) 13
vi
PRELIMINARY STATEMENT
Respondent Department of Labor (DOL) is responsible for enforcing
the prevailing wage law, a constitutional and statutory mandate
requiring that all workers on public work projects receive wages and
supplements that are at least equal to the prevailing rate for the specific
trade or occupation in the locality where the work is being performed.
DOL is also responsible for regulating apprenticeship programs for each
apprenticeable occupation to ensure that apprentices receive relevant on-
the-job training, supervised by skilled journeyworkers in such
occupation. Accordingly, for public work projects, DOL’s Bureau of Public
Work (BPW) classifies work into trades and occupations and determines
prevailing wage rates for two types of workers within each trade: journey-
level workers, or journeyworkers, and learning-level workers, or
apprentices. The prevailing wage law permits apprentices to “work as
such” on a public work project only if they are individually registered in
a bona fide apprenticeship program approved by DOL’s Apprenticeship
Training Program (ATP). Labor Law § 220(3-e).
For many years, DOL has interpreted the Labor Law to provide
that contractors may only pay the lower apprentice wage rates on a public
work project when apprentices registered with ATP for a given
apprenticeable occupation are performing work that BPW has classified
as part of a corresponding trade or occupation. DOL’s authority to do this
springs from the plain language of the Labor Law’s prevailing wage and
apprenticeship provisions, which give it broad authority to create and
enforce standards for apprenticeship programs, and from this Court’s
decisions interpreting the prevailing wage and apprenticeship statutes.
Plaintiffs, a group of glazier contractors and the glaziers’ union,
which sponsors an ATP-approved glaziers’ apprenticeship program,
commenced this action to challenge BPW’s determination that, on public
work projects, apprentice wage rates can only be paid to glazier
apprentices when they work as such, performing tasks that BPW has
classified as part of the glazier’s trade or occupation; if apprentices work
as ironworkers, performing tasks that BPW has classified as part of the
ironworkers’ trade or occupation, they must be paid the applicable
journey-level wage rate for ironworkers. According to plaintiffs, Labor
Law § 220(3-e) permits contractors to pay reduced apprentice rates on
public work projects for any work performed by any apprentice registered
by ATP in any apprenticeable occupation and, specifically, to pay
2
apprentice rates when ATP-registered glazier apprentices perform work
classified by BPW as part of the ironworkers trade or occupation.
Supreme Court rejected plaintiffs’ contention and issued a
judgment declaring that DOL’s determination was a rational
interpretation of the Labor Law. A divided Fourth Department reversed,
holding that § 220(3-e) did not authorize DOL to regulate the payment of
apprentice wages in this manner. The majority concluded that the
statute permits apprentices who are registered in a glazier apprentice
program to work and be paid as apprentices even if the work they are
performing is not in the same trade classification as their apprentice
program. The dissenting Justice concluded that DOL’s interpretation of
§ 220(3-e) was supported by the language of that statute and its
underlying purpose.
This Court should reverse. DOL’s interpretation is a reasonable
interpretation of the plain terms of the prevailing wage law, including
Labor Law § 220(3-e), and furthers the purposes of the prevailing wage
law and the apprenticeship program statutes in Labor Law article 23.
The Fourth Department’s contrary ruling undermines DOL’s
longstanding statutory authority to regulate apprentices on public work
3
projects throughout New York and to ensure both that contractors adhere
to the prevailing wage mandate and that apprentices in each
apprenticeable occupation receive on-the-job training and supervision
that comes with working with journeyworkers in that same occupation.
The decision’s broad sweep permits apprentices in a given apprenticeable
occupation on public work projects to be paid the lower apprentice wage
rate for any tasks they perform, regardless of how DOL’s BPW has
classified those tasks and irrespective of differences in the occupations of
the apprentice and the journeyworker. For these reasons, discussed
further below, the Fourth Department’s order should be reversed and the
Court should enter judgment declaring that DOL’s interpretation is
rational.
JURISDICTIONAL STATEMENT
This Court has jurisdiction over this appeal under C.P.L.R.
§ 5602(a)(l)(i). Plaintiffs’ declaratory judgment action originated in
Supreme Court, Erie County. The action was finally determined by the
Appellate Division, Fourth Department in a Memorandum and Order
4
entered February 10, 2017 (397-402).1 The Fourth Department granted
DOL’s motion for permission to appeal by order entered April 28, 2017
(395-396).
DOL’s appeal is timely. Plaintiffs served the Fourth Department’s
memorandum and order with notice of entry, by regular mail, on
February 15, 2017. DOL served and filed its motion for leave to appeal
within 35 days of this date, and thus DOL’s appeal is timely. See C.P.L.R.
§§ 2103(b)(2), 2211, 5513(a), (b).
The issues presented in the State’s appeal are preserved for this
Court’s review because DOL raised them in Supreme Court, which
addressed them in its decision (32-39), and DOL briefed and argued them
before the Fourth Department, which also addressed them (397-402).
QUESTION PRESENTED
Whether DOL rationally interpreted Labor Law § 220 (the
prevailing wage statute) and, in particular, subdivision (3-e), to require
that in order to be paid at the lower apprentice wage rates, apprentices
public work projects must be performing work within the tradeon
1 Numbers in parentheses refer to the pages of the record on appeal
unless otherwise indicated.
5
classification that is the subject of the ATP-approved apprenticeship
program in which they are registered.
STATUTORY AND REGULATORY BACKGROUND
A. The Prevailing Wage Law
New York’s Bill of Rights provides that human labor is not a
commodity nor an article of commerce, and that workers engaged in the
performance of any public work shall not “be paid less than the rate of
wages prevailing in the same trade or occupation in the locality within
the state” where the public work is to be located. N.Y. Const., art. I § 17.
Labor Law § 220 implements the Constitution’s prevailing wage
mandate. The statute mirrors the constitutional command, requiring
that contractors involved in public works projects pay their workers a
rate not less than the prevailing rate of wages in the same trade or
occupation in the locality. See Labor Law § 220(3)(a); see also (3)(b) (the
supplements provided to workers must also be in accord with the
prevailing practices in the same trade or occupation in the locality).
DOL’s BPW classifies work according to various trades or occupations
and determines the prevailing rate of wages for journeyworkers and
apprentices in each trade or occupation in every locality. As this Court
6
has observed, section 220 requires the classification of workers based on
the nature of the work they perform (e.g., as carpenters, ironworkers,
laborers, roofers, glaziers, etc.), and their status as either journeyworkers
or apprentices. See Matter of Monarch Electrical Contracting Corp. v.
Roberts, 70 N.Y.2d 91, 96 (1987).
Thus, prevailing wages for any public works contract are
determined by first classifying the work to be performed by an employee
within a specific trade or occupation. See Labor Law § 220(3-a)(a).
Courts exercise broad deference in reviewing DOL’s trade classifications.
See Matter of Lantry v. State of New York, 6 N.Y.3d 49, 55 (2005) (“trade
classifications are a matter given to the expertise of the Department and
courts are strongly disinclined to disturb them, absent a clear showing
that a classification does not reflect the nature of the work actually
performed”) (citations and quotation marks omitted). Next, DOL must
ascertain the prevailing rates for journeyworkers and for apprentices
working as such within that trade or occupation in the relevant locality.
When contractors enter into a public works contract, they must post at
the jobsite a statement of all wage rates and supplements for all of the
7
relevant trade classifications they propose to use for the project. See
Labor Law § 220(3-a)(a)(ii).
B. The Apprenticeship Statutes
1, Labor Law § 220(3-e)
Labor Law § 220 requires that all workers covered by the statute
must be paid a journeyworker’s prevailing wage for the trade in which
they are engaged, unless the workers qualify for an apprentice wage.
Labor Law § 220(3-e) provides:
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. 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. Any employee listed on a payroll 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.
This section permits the payment of apprentice wage rates, which
are less than the prevailing journeyworker wage rates. However, the
8
statute requires that “[apprentices will be permitted to work as such”
only when they are registered individually in a bona fide program
registered with DOL, and only when the contractor has established that
its use of apprentices satisfies the appropriate wage rates and ratios “for
the area of construction” the workers are performing. See also id.,
§ 220(3)(a), (b) (no employee shall be deemed to be an apprentice unless
he or she is so registered). An apprentice who is not properly registered
as required by Labor Law § 220(3-e) cannot be paid apprentice wage
rates, but instead must be paid the journeyworker’s wage rate
determined by the New York State Department of Labor “for the
classification of work he actually performed.” Labor Law § 220(3-e).
This Court has found that limiting the payment of apprentice wages
to participants in programs that have been approved by DOL’s ATP
serves a two-fold purpose: it curbs contractor abuses, including the
establishment of unsupervised “sham training programs” set up to allow
contractors to pay less than journey-level wages to persons “regardless of
skill level,” and also “ensure[s] that learning-level workers receive
approved, supervised training.” Matter of Monarch Elec. Contr. Corp.
70 N.Y.2d at 95-96 (1987). In this way, the statute ensures that the
9
financial incentives for contractors to pay an apprentice wage are
constrained by the requirement that apprentices are used properly. See
id. at 95 (noting that the amendments to Labor Law § 220’s
apprenticeship provisions “were enacted to prevent subversion of the
prevailing wage law, which itself 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”).
Similarly, in order to prevent contractors from overloading projects
with learning-level workers and to ensure that apprentices in a given
occupation are supervised by journeyworkers in that same occupation,
the statute also requires that “[t]he 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.” Labor Law § 220(3-e).
2. Labor Law Article 23
In Labor Law article 23, the Legislature directed DOL to “develop
sound apprenticeship training standards,” and gave the agency the
authority to adopt necessary rules and regulations “for the effective
10
administration of the purposes and provisions of’ the apprenticeship
statutes. Labor Law § 811(l)(j). The Legislature also directed DOL to
perform other duties necessary “to give full effect to the policies of the
state and the provisions” of article 23. Labor Law § 811(l)(k).
In furtherance of this broad legislative mandate, DOL has
promulgated regulations in order “to ensure that apprenticeship
programs developed and registered in accordance with public policy are
of the highest possible quality in all aspects of on-the-job training, related
and supplemental instruction, and in providing meaningful employment
and relevant training for all Apprentices.” 12 N.Y.C.R.R. § 601.1; see
12 N.Y.C.R.R. § 601.5 (“[standards for apprenticeship programs”);
12 N.Y.C.R.R. § 601.6 (governing apprenticeship agreements between
the apprentice and his or her sponsor or employer). DOL also publishes
information pertaining to the 145 trades, including those outside of the
construction industry, which are governed by DOL’s apprenticeship
https://www.labor.ny.gov/apprenticeship/general/Seeprogram.
occupations.shtm (last visited August 9, 2017).
In particular, to ensure the proper supervision and training of
apprentices, the DOL article 23 regulations require that each
11
apprenticeship program plan must specify, among other things, “[t]he
numeric ratio of apprentices to journeyworkers under the program as
determined by the Commissioner.” 12 N.Y.C.R.R. § 601.5(c)(7). The
regulations also specify that the ratio of apprentices to journeyworkers
can be “changed only for the entire trade and such changes can only be
made by the Commissioner.” Id., § 601.5(c)(15) (last sentence). DOL
imposed uniform statewide ratios for each trade in 1995- before then, a
single trade could be governed by different ratios in different parts of the
state. See Albany Elec. Contrs. Assn v. Angello, 6 A.D.3d 920 (3d Dep’t
2004).
3. The DOL Interpretation at Issue
In accordance with its interpretation of these statutes and its
statutory duty to develop and supervise apprenticeship programs that
give full effect to the public policies of the State, which include the
prevailing wage mandate, DOL determined that apprentice wage rates
may not be paid unless the apprentice is both duly registered in an ATP-
approved program and actually performing work within the trade
classification that is the subject of the apprenticeship program in which
he or she is enrolled. DOL has interpreted the Labor Law to require that:
12
“[a]n employee listed on a payroll as an apprentice who is not
registered as above or is performing work outside the
classification of work for which the apprentice is indentured,
must be paid the prevailing journeyworker's wage rate for the
classification of work the employee is actually performing.”
General Provisions of Laws Covering Workers: Apprentices, available at
http://labor.ny.gov/workerprotection/publicwork/pwgeneralprovisions.sh
tm (emphasis added) (last visited July 31, 2017). That interpretation has
2001. Seebeen publicly available since at least
https://web.archive.Org/web/20010915001347/http://www.labor.state.ny.
us:80/html/prevwage/general.htm (last visited August 9, 2017).
STATEMENT OF THE CASE
A. The Classifications at Issue
This appeal concerns certain tasks that BPW has classified for
prevailing wage purposes as ironworker’s work rather than glazier’s
work. The ironworker tasks are part of three work processes: the
installation of curtain wall, the construction of storefronts and entrances,
and the installation of pre-glazed windows (261-262). “Curtain wall”
refers to non-load bearing walls with metal frames holding glass or other
materials on the exterior of a building (258).
13
These three work processes also include certain other tasks that
DOL’s BPW classifies as glazier’s work (258-259). Because each work
process encompasses a multitude of specific tasks, not all tasks within a
work process necessarily are part of the same trade classification, which
depends on the nature of the specific tasks involved (258-259). For
example, BPW classifies the installation of metal frames for curtain wall
as ironworkers’ work, but it classifies the installation of glass-related
products in curtain wall, such as glass settings, sealants, and pressure
plates, as glazier’s work (258, 261-262). In Matter of Lantry, this Court
upheld BPW’s classification of the installation of pre-glazed windows into
masonry (one of the tasks at issue here) as ironworker’s work. 6 N.Y.3d
at 58-59.
Plaintiffs have known about the relevant BPW classifications since
at least 2005, when plaintiff District Council No. 4 received DOL’s
response to its inquiry about them (258, 261-262).2 The classifications
2 Prior to 2005, DOL’s classifications were the subject of
administrative determinations that were at issue in cases decided
between 2002 and 2005. See Matter of Cortland Glass Co. v. Angello,
300 A.D.2d 891 (3d Dep’t 2002); Matter of Lantry v. State of New York,
12 A.D.3d 864 (3d Dep’t 2004), affd, 6 N.Y.3d 49 (2005).
14
have not changed since that time (259). Plaintiffs, and all contractors,
may contact BPW for guidance about the proper classification of work
(259).
Because BPW has classified certain tasks within the three work
processes mentioned above as ironworker’s work, DOL requires that
glazier apprentices, as well as apprentices learning any trade other than
that of ironworkers, must be paid journey-level ironworker prevailing
wages when they perform these tasks. Notwithstanding DOL’s directive,
plaintiff contractors seek to pay their employees who perform these
ironworker tasks while enrolled in an ATP-approved glaziers’
apprenticeship program at the lower apprentice wage rates.
B. The Complaint
Plaintiffs commenced this action for a declaratory judgment and a
permanent injunction in February 2015 (40-64). They alleged that DOL’s
interpretation of Labor Law § 220, requiring that glazier apprentices be
paid ironworker journey-level rates when they perform work classified as
ironworker’s work, “violates the plain meaning” of the Labor Law (58).
Plaintiffs asserted that Labor Law § 220, particularly section 220(3-e),
permits contractors to “pay apprentices the posted apprentice rates as
15
long as they are registered and enrolled in a bona fide DOL certified
apprentice program,” even when glazier apprentices are performing
tasks that BPW has classified as part of the ironworkers’ trade or
occupation (52).
Plaintiffs further complained that DOL’s interpretation denies
them the opportunity to place glaziers in their apprenticeship program
on public works projects, and forces taxpayers to pay “artificially and
illegally inflated” costs (56-57, 78-104, 184-188, 190-194, 196-203). They
sought a declaratory judgment from Supreme Court that “the Plaintiff
glazing contractors may compensate apprentices registered and enrolled
in the [g]lazier [apprentice program in accordance with the applicable
apprentice rates posted by the DOL on taxpayer financed projects,” and
a permanent injunction preventing DOL from requiring that these
individuals be paid journey-level ironworker rates (61).
C. DOL’s Motion for Summary Judgment and Dismissal of
the Complaint
DOL simultaneously answered the complaint and moved for
summary judgment dismissing the complaint’s three causes of action
(237-248). Jane Thompson, the director of DOL’s ATP, who certifies and
16
regulates apprenticeship programs for DOL “in both public work and
private work, and for workers who are both within and outside of unions”
(250; see 249-251), defended DOL’s interpretation. She explained that
opportunities for apprentices to work on public work projects are limited
by the statutory apprentice-to-journeyworker ratio (Labor Law § 220[3-
e]) (250). She also explained that requiring apprentices to perform work
that is classified within the trade they are learning in order to be paid at
the lower apprentice wage rate is a commonsense interpretation of the
relevant statutes that ensures that apprentices receive on-the-job
training in the trade in which they are apprenticed (250). Otherwise
employers would be encouraged to “lower their wage bill by employing
any apprentice to perform any trade’s work” (250 [emphasis in original]).
DOL also submitted an affidavit from Christopher Alund, the
director of DOL’s BPW, which is responsible for enforcing trade
classifications that BPW assigns under the prevailing wage law. Alund
explained which of the tasks involved in the relevant work processes are
classified as glazier’s work and which are ironworker tasks (257-260). He
noted that “[t]hose classifications have not changed” since plaintiff
District Council No. 4 inquired about them in 2005 (258; see 261-262). He
17
explained that “DOL interprets Labor Law Articles 8 and 23 as requiring
that a learning-level worker cannot be paid apprentice rates on a public
work project unless the apprentice is performing work within the trade
classification that is the subject of the ATP-approved apprenticeship
program that the apprentice is attending” (259). Thus, “a glazier
apprentice may be paid glazier apprentice wages on a public work project
for tasks that are classified as glazier’s work: for example, installation of
glass-related products such as glass settings, sealants, and pressure
plates into curtain wall; installing glass into metal frames of storefronts
and entrances, with the possible exception of some specialty work; and
any other work that DOL classifies as within the glaziers’ trade” (259-
260). But “ [i]f an ironworker apprentice performed such work on a public
work project, the apprentice cannot be paid an apprentice wage but would
have to be paid a glazier’s journeyman prevailing rate” (260).
Finally, Alund cautioned that interpreting Labor Law § 220 to
permit contractors to pay apprentice wage rates for work done outside of
the apprentice’s trade “if (among other things)” apprentices in the
program do the work in question in the private sector as plaintiffs argued,
would impose “an enormous administrative burden” on DOL’s public
18
work investigators (260). Under plaintiffs approach, DOL would be
required to consider the tasks performed by apprentices in private work
so that public work classified as ironwork could be paid at apprentice
rates if DOL found that glazier apprentices performed that work on
private projects. Alund explained that this approach was not practical.
Even if the investigators “had the authority to assess the work done by
apprentices on private work, opening up that broad area of inquiry would
not be administratively feasible” (260).
D. Supreme Court’s Decision
Supreme Court viewed plaintiffs’ arguments as essentially a
challenge to DOL’s classifications. The court agreed with DOL that the
statute and this Court’s precedent validated DOL’s interpretation, since
“it was appropriate for the Department to classify the work done to
determine the appropriate wage to be paid” (36-37, citing Lantry v. State
of New York, 6 N.Y.3d 49 [2005], and Monarch Elec. Contr. Corp. v.
Roberts, 70 N.Y.2d 91 [1987]). Supreme Court entered a declaratory
judgment finding that “[DOL’s] determination that the work in question
is that of the ironworkers and not [of] the glaziers is not unreasonable or
19
arbitrary or capricious,” and ordered the dismissal of the complaint in its
entirety (32-34).
E. The Fourth Department’s Decision
A four-Justice majority of the Fourth Department reversed
The majority rejected asSupreme Court’s judgment (397-402).
unreasonable DOL’s interpretation of Labor Law § 220(3-e) as
authorizing the payment of apprentice wages on public work projects only
for tasks classified by BPW as part of the occupation for which the worker
is in an apprenticeship program. (400). Instead, the court accepted
plaintiffs’ argument that the statute authorized a contractor to pay
apprentice wages to glazier apprentices performing ironworker tasks, so
long as the apprentice “is registered in any bona fide apprentice program”
(400).
The majority refused to defer to DOL’s interpretation of the statute,
and also did not address DOL’s argument that its interpretation
furthered the policies of the apprenticeship statutes in Labor Law article
23. Instead, the court cited Labor Law § 220 (3)(a) and (b), governing the
payment of prevailing wages and benefits to journeyworkers. In the
court’s view, “the very limitation [DOL] seeks to impose on section (3-e),
20
i.e., a limitation to work in the same trade or occupation,” was expressly
included in those sections, so the absence of similar language in section
220(3-e) indicated that no such limitation was intended there (401).
Accordingly, the majority held that “Labor Law § 220(3-e), by its
terms, permits glazier apprentices who are registered, individually,
under a bona fide glazier apprenticeship program to work and be paid as
apprentices even if the work they are performing is not work in the same
trade or occupation as their apprenticeship program” (401). Consistent
with that interpretation, the court entered a judgment declaring that
“glazing contractors may compensate apprentices registered and enrolled
in the DC4 Glazier Apprenticeship Program in accordance with the
applicable apprentice rates posted by defendant New York State
Department of Labor on taxpayer financed projects” (398).
Presiding Justice Whalen dissented and would have affirmed
Supreme Court’s order and judgment (401-402). He pointed out that
Labor Law § 220(3-e) was enacted to further the goals of the prevailing
wage law by expressly prohibiting persons from working as apprentices
on public work projects unless they were individually registered in an
ATP-approved apprenticeship program. “The statute specifically
21
provides that ‘[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 [DOL]”’ (401, quoting
Labor Law § 220[3-e] [emphasis added]), and 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 the [DOL] for the classification
of work he [or she] actually performed” (id. at 401-402). The Presiding
Justice explained that DOL’s interpretation was rational, because “[a]ny
employee who is working outside the trade classification of his or her
apprenticeship program is not working ‘as such,’ i.e., as an apprentice,
under the statute” (402). “In that circumstance,” he continued, the
statute provides that “the employee is entitled to be paid at the rate paid
to journey-level workers for ‘the classification of work . . . actually
performed’” (id., quoting Labor Law § 220[3-e]).
In the dissent’s view, the DOL’s interpretation was reasonable and
not contrary to the statute’s plain meaning because it “ensures that
workers receive appropriate wages based upon the work they perform,
and that they receive appropriate training in their trade classification
when they are in fact working as apprentices” (402). Accordingly,
22
Presiding Justice Whalen opined that “[b]ecause the agency responsible
for implementing section 220(3-e) gave the statute a rational
interpretation that is not inconsistent with its plain language, that
interpretation must be upheld” (402).
ARGUMENT
DOL’S INTERPRETATION IS RATIONAL AND CONSISTENT WITH
THE PLAIN LANGUAGE AND STATUTORY PURPOSES OF LABOR
LAW § 220 AND ARTICLE 23
This Court should reverse the Fourth Department’s ruling. DOL
rationally interpreted the relevant provisions of the Labor Law in
determining that a contractor may pay an apprentice on a public work
project at the lower apprentice wage rate only for work that BPW has
classified as within the trade or occupation that is the subject of his or
her apprenticeship program.
DOL’s interpretation is consistent with the plain meaning of Labor
Law § 220(3-e). That statute provides that people who are not properly
registered apprentices must be paid at the journeyworker rate for the
classification of the work actually performed. As Presiding Justice
Whalen correctly noted in his dissent, “any employee who is working
outside the trade classification of his or her apprenticeship program is
23
not working “as such,” i.e., as an apprentice, under the statute” (402).
Thus, DOL reasonably required that glazier apprentices must be paid the
applicable journeyworker rate when they are performing tasks that BPW
classifies as part of a different trade or occupation.
Further, DOL’s interpretation gives effect to what this Court has
recognized are the fundamental purposes of the prevailing wage law: (1)
that the status and classifications assigned to workers, the jobs they
perform, and the wages to be paid, should reflect “the nature of the work
actually performed.” Matter of Lantry, 6 N.Y.3d at 55 (citation and
quotation marks omitted); see Matter of Kelly v. Beame, 15 N.Y.2d 103,
109 (1965) (“[t]he pivotal question is the nature of the work actually
performed”); and (2) that only workers who truly qualify as apprentices
may be paid the lower apprentice wage rates; everyone else must receive
“a journeyman’s prevailing wage for their occupation.” Matter of
Monarch Elec. Contr. Corp., 70 N.Y.2d at 96.
Moreover, DOL’s interpretation of the prevailing wage and
apprenticeship statutes, i.e., Labor Law §§ 220, 810 and 811, and DOL’s
apprentice regulations, ensures that contractors adhere to the prevailing
wage mandate and that apprentices receive on-the-job training and
24
supervision that is within the trade they are learning. Finally, DOL’s
interpretation is fair because it does not disqualify the apprentice or
prevent the contractor from using an apprentice in one occupation to
perform some tasks that BPW classifies as part of a different trade or
occupation; it requires only that the contractor pay the prevailing
journey-level wage when its apprentices in a given occupation are not
actually working as such. For all of these reasons, discussed below, this
Court should reverse the Fourth Department’s order and declare that
DOL may limit the payment of apprentice wages to apprentices who are
actually performing work that is within the trade classification of the
ATP-approved program in which the apprentices are enrolled.
A. DOL’s Interpretation of the Prevailing Wage Law is
Entitled to Deference
Preliminarily, the Fourth Department erred in concluding that
DOL’s statutory interpretation was not entitled to judicial deference. As
the agency responsible for implementing and enforcing the prevailing
wage and apprenticeship statutes, DOL’s “interpretation of the statutes
it administers must be upheld absent demonstrated irrationality or
unreasonableness.” Seittelman v. Sabol, 91 N.Y.2d 618, 625 (1998). As
25
this Court held in a prevailing wage case, the question is “whether [DOL]
applied a reasonable methodology to evaluate [the contractor’s]
compliance with its obligation under Labor Law § 220(3).” Matter of
Chesterfield Associates v. New York State Dep’t of Labor, 4 N.Y.3d 597,
604 (2005).
DOL’s interpretation derives from its statutory authority to give
effect to the trade classifications and wage rates it assigns, as well as to
regulate apprenticeship programs. Under these circumstances, DOL's
“interpretation of a statute it is charged with enforcing is entitled to
deference.” Samiento v. World Yacht, Inc., 10 N.Y.3d 70, 79 (2008).
“[T]rade classifications are a matter given to the expertise of [DOL] and
courts are strongly disinclined to disturb them, absent a clear showing
that a classification does not reflect the nature of the work actually
performed.” Matter of Lantry, 6 N.Y.3d at 55 (citations and quotation
marks omitted). Deference is also warranted because DOL has “broad
power” to “supervise apprenticeship agreements and to maintain the
standards thereof.” Matter of United Constr. Contrs. Assn., Inc. v. Levine,
52 A.D.2d 371, 373 (3d Dep’t), Iv. denied, 39 N.Y.2d 711, appeal
dismissed, 39 N.Y.2d 1057 (1976). DOL’s determination here is merely “a
26
specific application of [this] broad statutory grant of authority.” Id. at
374; accord Albany Elec. Contractors Assn., Inc. v. Angello, 6 A.D.3d 920,
921 (3d Dep’t 2004).
The Fourth Department refused to defer to DOL because it
concluded that the agency’s policy was “’contrary to the plain meaning of
the statutory language’” (399, quoting Matter of Raritan Dev. Corp. v.
Silva, 91 N.Y.2d 98, 100 (1997). This conclusion is incorrect, and the
court’s refusal to defer to DOL’s reasonable interpretation of the
prevailing wage law was mistaken. As explained below, DOL’s
construction offers “a rational interpretation that [is] not inconsistent
with the plain language.” James Square Assocs. v. Mullen, 21 N.Y.3d
233, 251 (2013); see Matter of Brown v. Wing, 93 N.Y.2d 517, 524 (1999)
(determining that it is “proper to utilize a rational interpretation by the
agency responsible for administering the statute”).
27
B. DOL Properly Read the Statute to Condition the
Payment of Apprentice Wage Rates on the Apprentices’
Performance of Tasks Within Their Trade
Classification
1. Glazier apprentices are not working “as such”
within the meaning of Labor Law § 220(3-e) when
they perform tasks classified as part of the
ironworkers’ trade or occupation, and thus must
be paid as journeyworkers for that work.
Contrary to the Fourth Department’s holding (400), DOL’s
interpretation is consistent with the first sentence of § 220(3-e), which
reads: “[apprentices will be permitted to work as such only when they
registered, individually, under a bona fide program registered withare
the New York State Department of Labor” (emphasis added). There is no
conflict between the statute and DOL’s interpretation, which does not bar
apprentices from working in a trade other than the one in which they are
registered; it simply recognizes that if they do, they are not at that
moment working as apprentices any more than someone in a registered
plumber’s apprenticeship program is learning the plumber’s trade if
assigned to help lay bricks. In these circumstances, DOL reasonably
construes the statute to mean that the glazier apprentices are not
working “as such” - i.e., as apprentices - when performing ironworker
tasks, and the statute thus requires that they be compensated for “the
28
classification of work [they] actually performed,” that is, at the
journeyworker wage rate for the ironworker’s trade. Labor Law § 220(3-
e).
The Fourth Department reasoned that the language of § 220(3-e)
did not support DOL’s interpretation because other subdivisions of § 220,
but not subdivision (3-e), contain “the very limitation [DOL] seek[s] to
impose” (401). The court referred to Labor Law §§ 220(3)(a) and (b),
which govern the payment of wages and benefits to journeyworkers and
provide that the wages and supplements “to be paid for a legal day's work
. . . shall be not less than the prevailing rate for a day's work in the same
trade or occupation.” Contrary to the court’s reasoning, the absence of
the phrase “in the same trade or occupation” from § 220(3-e) does not
mean that the limitation does not apply to apprentice wages.
First, the clause “in the same trade or occupation” is contained in
the Constitution’s prevailing wage mandate, which, as part of New York’s
fundamental law, applies to the entirety of the prevailing wage statute
whether explicitly restated there or not. N.Y. Const, art I, § 17. Second,
as the text of the constitutional provision demonstrates, the requirement
that a worker’s prevailing wage be determined separately for each trade
29
or occupation is a fundamental part of the prevailing wage mandate, and
the Constitution does not distinguish between journeyworkers and
apprentices for this purpose, referring instead to “laborer[s], worker[s] or
mechanic[s].” Id. Indeed, the constitutional provision was adopted in
1938, and it was not until 1966 that the prevailing wage law was
amended to authorize, subject to stringent limitations, the employment
of apprentices on public work projects. See Matter of Monarch Elec.
Contr. Corp., 70 N.Y.2d at 95-96.
Under these circumstances, it would have made little sense for the
Legislature to have empowered DOL to determine the appropriate
journeyworker rate based on the classification of the work performed, but
to have denied the agency the authority similarly to regulate the
payment of apprentice wages. Accordingly, DOL’s determination that
glazier apprentices are not working “as such” when they are performing
tasks that BPW classifies as part of a different trade or occupation and
must be compensated at the journey-level wage for the tasks they
actually perform is consistent with the constitutional and statutory
mandate that the prevailing wage be determined separately for each
trade or occupation.
30
This reasoning also disposes of the court’s conclusion that in order
to be paid as apprentices under the first sentence of § 220(3-e),
individuals need only be registered in “a bona fide program” that is
registered with DOL’s ATP, which the court construed to mean “any”
such program (400), regardless of whether the work they actually
perform is within the trade classification of their program. In light of the
prevailing wage mandate’s requirement that the prevailing wage be
determined separately for each trade or occupation, it is more reasonable
to construe the entire first sentence of § 220(3-e) consistently with DOL’s
interpretation, rather than reject that interpretation based on the
construction of the single indefinite article “a.” The Appellate Division
ignored this Court’s caution not to read statutes “in vacuum-like isolation
with absolute literalness.” Long v. Adirondack Park Agency, 76 N.Y.2d
416, 420 (1990). Rather, the appropriate approach is to “give the statute
sensible and practical over-all construction, which is consistent witha
and furthers its scheme and purpose and which harmonizes all its
interlocking provisions.” Id.
DOL’s interpretation implements the constitutional and statutory
requirement that the prevailing wage must be set for each trade or
31
occupation. In addition, the trade classifications are necessary in order
to compute the applicable ratio of apprentices to journeyworkers for
purposes of both article 23 and section 220(3-e), as well as to ensure that
apprentices are learning tasks within their own trade and are properly
supervised by journeyworkers in their trade for purposes of their on-the-
job training. See Matter of Monarch Elec. Contr. Corp., 70 N.Y.2d at
95-96 (§ 220[3-e] was intended among other things to “ensure that
learning-level workers receive approved, supervised training”).
Supreme Court reasonably viewed this case as an attempt by the
glaziers to revive their unsuccessful challenge in Lantry to DOL’s
classification of various tasks comprising the work of installation of
curtain wall, storefronts and entrances, and pre-glazed windows. See
Matter of Lantry v. State of New York, 6 N.Y.3d 49 (2005). In Lantry, the
Court upheld DOL’s classification as ironwork of the task of installing
pre-glazed windows into masonry, a task also involved here, and
emphasized DOL’s broad discretion in making these classifications. As a
result, journeyworkers performing this task on public work must be
compensated at the ironworker wage rate.
32
Seeking to avoid the consequences of Lantry, plaintiffs insisted in
the courts below that they can use glazier apprentices, paid at the much
lower apprentice wage rate, to perform tasks that BPW properly
determined should be paid at the journeyworker rate for ironwork. This
Court should reject plaintiffs’ attempt to circumvent both DOL’s trade
classification determinations as upheld in Lantry and DOL’s policy that
apprentices must perform work that is classified within the trade in
which they are apprenticed in order to receive the lower apprentice wage
rate.
In sum, DOL’s interpretation is grounded in the language and
public policies of the Constitution, Labor Law § 220(3-e), and Labor Law
article 23, and also is “implicit in the statutory scheme as a whole.”
O’Brien v. OBrien, 66 N.Y.2d 576, 585 (1985). Even if DOL’s
interpretation were not compelled by the words of § 220(3-e), it would be
supported by at most a small inferential step well within the bounds of
DOL’s interpretive authority. This Court has recognized that an agency
is permitted to “go beyond the text” of the legislation where, as here, its
construction is “not inconsistent with the statutory language or its
underlying purposes.” Matter of General Elec. Capital Corp. v. New York
33
State Div. of Tax Appeals, Tax Appeals Trib., 2 N.Y.3d 249, 254 (2004);
see James Square Assocs., L.P. v. Mullen, 21 N.Y.3d 233, 251 (2013).
DOL’s interpretation permits payment of the lowest wages to glazier
apprentices only when they are performing tasks classified by BPW as
part of the glazier’s trade that is the subject of their training and is the
reason they have been certified to work as apprentices in the first place.
2. Labor Law § 220(3-e) requires that contractors
must use appropriate wage rates “for the area of
construction” prior to using any apprentices on
the contract work.
Additional support for DOL’s interpretation can be found in the
language of § 220(3-e) that requires a contractor to furnish written
evidence of, among other things, “the appropriate ratios and wage rates,
for the area of construction prior to using any apprentices on the contract
work” (emphasis added). The Fourth Department did not address the
meaning of the statutory phrase “for the area of construction,” but that
phrase reinforces DOL’s interpretation of the statute that the apprentice
rate can be paid to glazier apprentices only when they are working as
such.
34
The phrase “area of construction” is routinely used both within and
outside the prevailing wage context to refer to a type of work, not just a
geographic area, since both are necessary to determine the appropriate
prevailing wage rate for any trade within a locality. The phrase has been
used to refer to a type of work by New York courts, the U.S. Supreme
Court and federal courts of appeals, and by courts of sister states. See,
e.g., Empire State Chapter of Associated Bldrs. & Contrs., Inc. v. Smith,
98 A.D.3d 335, 342 (4th Dep’t 2012) (“areas of construction” used as a
synonym for “subdivisions” or “categories” of construction work on a
project), aff’d as modif., 21 N.Y.3d 309 (2013); White v. Mass. Council of
Constr. Employers, 460 U.S. 204, 209 (1983) (referring to “specialized
areas of construction”); NLRB v. San Antonio Portland Cement Co.,
611 F.2d 1148, 1150 (5th Cir. 1980), cert, denied, 449 U.S. 849 (1980)
(“Although the men work as a crew, each possess a skill in some specific
area of construction. For example, one is the plumber, one is the painter
and Fuentes is the carpenter”); Lee v. YES of Russellville, Inc., 858 So.2d
250, 254 (Ala. 2003) (contractor experienced “in various areas of
construction including, but not limited to, electrical and plumbing”)
(quotation marks omitted) (277-278).
35
For instance, in Building & Constr. Trades Dep’t v. Donovan,
712 F.2d 611, 613-614 (D.C. Cir. 1983), cert, denied, 464 U.S. 1069 (1984)
the court interpreted the Davis-Bacon Act, 40 U.S.C. § 3141, which is
Labor Law § 220’s federal analog, by referring to “wages prevailing in the
area of construction,” i.e., those “to be paid various classes of laborers and
mechanics.” While there is no New York case that has definitively
interpreted the phrase “area of construction” as set forth in Labor Law
§ 220(3-e),there is no reason that the interpretation of the phrase adopted
by the courts in the cases cited above, including a New York case and a
case applying section 220’s federal counterpart, should differ from that
applied here in a case applying New York’s prevailing wage law.
Accordingly, DOL has reasonably construed the statute’s reference
to the “area of construction” to require that wages must be evaluated
separately for each trade or occupation, and in particular that the special
statutory dispensation to pay lower apprentice wages applies only to the
tasks that BPW has classified within the trade or occupation that is the
subject of the worker’s apprenticeship program. Under a statute that
regulates wages separately for each trade or occupation, DOL reasonably
concluded that a contractor on a public works project is authorized to pay
36
apprentice rates only if his use of apprentices satisfies the requirements
of § 220(3-e) for each trade or occupation, including the appropriate ratio
and wage rates.
3. DOL’s interpretation of Labor Law § 220(3-e)
furthers the goals of Labor Law Article 23 to ensure
that apprenticeship programs provide relevant
training.
DOL’s interpretation also furthers the purposes of Labor Law
article 23 governing apprenticeship programs. These provisions
emphasize the importance of providing apprentices with relevant
training and employment experience in the trade or craft being taught.
Labor Law § 810 requires that DOL “develop sound apprenticeship
training standards.” DOL has promulgated regulations “intended to
insure that apprenticeship programs [that comply with the registration
requirements of Labor Law § 220(3-e)] are of the highest possible quality
in all aspects of on-the-job training, related and supplemental
instruction, and in providing meaningful employment and relevant
training for all Apprentices.” 12 N.Y.C.R.R. § 601.1. (emphasis added).
Apprenticeship agreements must state “the trade or craft to be taught”
and “the process in the trade or craft divisions in which the apprentice is
37
to be taught.” • Labor Law § 815(1),(2). The agreements must also state
the hours of instruction in technical subjects related to the trade.
12 N.Y.C.R.R. §§ 601.3, 601.6(d)(e)(2),(f).
Sections 810 and 811 and their accompanying regulations require
DOL to ensure that apprentices receive quality relevant training and to
“give full effect to the policies of the[S]tate,” which include the prevailing
wage law. Labor Law § 811(l)(k). Apprenticeship programs are required
to teach tasks that are classified within a specific trade. The regulations
provide that an apprenticeship program must “train[] apprentices in an
apprenticeable occupation,” i.e., a skilled trade commonly recognized
throughout an industry. 12 N.Y.C.R.R. §§ 601.3(d),(g). An
“apprenticeable occupation” can include skills “sufficiently broad to be
applicable in like occupations throughout an industry.” 12 N.Y.C.R.R.
§ 601.3(d)(6). The program’s basis for measuring the apprentice’s
advancement through the program must be “appropriate to the trade for
which the program is registered.” Id., § 601.7(b). To ensure that
apprentices receive proper on-the-job training, DOL specifies the
appropriate ratio of apprentices to journeyworkers for each trade,
12 N.Y.C.R.R. §§ 601.5(c)(7), (15).
38
DOL’s statutory interpretation furthers the goals of the
apprenticeship provisions of Article 23 by requiring that apprentices on
a public work project may be paid at apprentice rates only for work that
is classified within their trade or occupation, and then only if the
contractor complies with the applicable apprentice-journeyworker ratio
measured on a trade-by-trade basis. If a public work project can pay
apprentice wage rates to glazier apprentices performing ironworker
tasks, the contractor will have a strong financial incentive to treat
apprentice labor as a commodity, diverting glazier’s apprentices from
their limited opportunities to learn glazier skills on the job and requiring
them instead to perform ironworker’s tasks. That practice does not
further their training in their trade or craft and is at odds with the
prevailing wage mandate, which, as a general rule, requires journey-level
compensation. The lower apprentice wage rates are justified only because
apprentices are receiving training in a specific trade. As Ms. Thompson
explained in her affidavit, “[i]f public-work contractors could lower their
wage bill by employing any apprentice to perform any trade’s work, that
would limit the likelihood that an apprentice received training for work
within the trade the apprentice is learning” (250) (emphasis in original).
39
DOL’s interpretation of the statutes and regulations reasonably
guards against the potential for abusive contractor practices and furthers
the statutory goals of ensuring that workers receive an appropriate wage
based on the nature of the work they perform and that apprentices
receive relevant training in accordance with “sound apprenticeship
training standards.” Labor Law § 810. For this reason as well, this Court
should uphold it.
C. The Fourth Department’s Ruling Undermines the
Public Policies of the Prevailing Wage Law and Labor
Law Article 23
The Fourth Department’s erroneous ruling, if undisturbed, will
severely compromise DOL’s authority to closely supervise apprenticeship
programs and the use of apprentices on public work projects. Under the
court’s construction of Labor Law § 220(3-e), contractors may now pay
the lower apprentice wage rates not only to glazier apprentices
performing tasks classified as ironwork, but also to ironworker
apprentices who perform work classified as glazier’s work, carpenter
apprentices who perform work classified as ironwork, bricklayer
apprentices who perform work classified as electrician’s work, and so on.
This result conflicts with DOL’s mandate to ensure that apprentices
40
learn work processes and tasks that are “appropriate to the trade for
which the program is registered,” 12 N.Y.C.R.R. § 601.7(b), and with this
Court’s pronouncement that the purpose of section 220(3-e) is to ensure
that “that learning-level workers receive approved, supervised training.”
Matter of Monarch Elec. Contr. Corp., 70 N.Y.2d at 95-96.
As a practical matter, undermining DOL’s supervisory authority
and permitting payment of apprentice-level wages when glazier
apprentices perform ironworker tasks could significantly limit the on-
the-job training that is the purpose of the apprenticeship program. The
Labor Law specifically provides that apprenticeship agreements should
include the use of a statement indicating “the trade or craft to be taught,”
the “processes in the trade or craft divisions in which the apprentice is to
be taught,” and the number of hours the apprentice is to spend in
classroom instruction and on-the-job training Labor Law §§ 815(1),(2).
An apprentice may lose important opportunities for training in the trade
if the apprentice is diverted to working in another trade, or if an
apprentice from another trade is doing his or her work. Cf. Matter of
United Constr. Contrs. Assn., Inc. v. Levine, 52 A.D.2d 371 (3d Dep’t
1976). In that case, the court upheld DOL’s deregistration of an
41
apprenticeship program that “failed to achieve its fundamental purpose”
of providing apprentices with “organized instruction designed to provide
the apprentice with a knowledge in technical subjects related to his
trade.” Id. at 372, 375.
Also, the Fourth Department’s conclusion that registered
apprentices may be paid apprentice wage rates for performing tasks
classified outside the trade in which they are registered weakens the
quality of supervision that may be available to apprentices for in-trade
work, since the journeyworkers are supposed to be teaching apprentices
work in one and the same trade or occupation. Cf. Matter of Sarco
Industries v. Angello, 23 A.D.3d 715, 717 (3d Dep’t 2005) (upholding
DOL’s determination that an apprentice working for two weeks without
a supervising journeyworker was required to be paid journey-level wages
for the work he performed, and imposing a civil penalty).
Finally, although the Appellate Division framed its declarations
narrowly by limiting them to glazier contractors and apprentices (398),
the court’s reasoning is far more sweeping: “we agree with plaintiffs that
Labor Law § 220(3-e) permits an apprentice to work as such if he or she
is registered in any bona fide apprentice program” (400) (emphasis
42
added). Similarly, plaintiffs argued in reply in the Fourth Department
that they simply sought to be allowed to pay apprentice wages to glazier
apprentices who were performing tasks that were taught as part of their
glazier apprentice curriculum, although DOL had classified some of those
tasks as ironwork for purposes of the prevailing wage law. But the logic
of plaintiffs’ argument is not limited to ironworker tasks that are
included in the glazier’s apprenticeship program. Plaintiffs ultimately
prevailed by making the broader argument that the Fourth Department
adopted, namely, that the terms of § 220(3-e) preclude DOL from
requiring that a glazier apprentice “work as such” in order to be paid as
an apprentice. For all the reasons explained above, this conclusion is
untenable.
Even considered on its own terms, there is no merit to plaintiffs’
argument that the Labor Law allows them to pay apprentice wages to
glazier apprentices performing tasks that BPW has classified as
ironwork if the tasks happen to be included in the glazier apprentice
curriculum. The training that an apprentice receives in a ATP-approved
program does not determine the classification of the work for prevailing
wage purposes on public work projects (251). This Court should reject
43
any notion that such trade classifications are governed by the content of
the curricula of the various apprenticeship programs. For purposes of
the prevailing wage law, classifications are a matter determined by
DOL’s BPW (258).
The prevailing wage law is a requirement to pay a specified wage,
which must be determined for each trade and occupation. A bright-line
demarcation between the tasks that are included in one trade or
occupation and those that are included in another is necessary for
effective enforcement of the prevailing wage mandate. But because the
apprenticeship provisions of Labor Law Article 23 focuses on effective
training, including preparing apprentices for trades and occupations
whose boundaries may shift in the future, bright lines are not essential
and may be counterproductive. Indeed, the apprenticeship regulations
recognize that an apprenticeable occupation can include skills that are
broad enough to be applicable “in like occupations.” See 12 N.Y.C.R.R.
§ 601.3(d)(6).
Thus, the fact that the glazier apprenticeship program, which can
involve private as well as public work, might include a work process that
overlaps with another trade has no bearing on DOL’s statutory authority
44
and obligation on public work projects to ensure that the appropriate
wage is paid based on the work “actually performed.” Labor Law § 220(3-
e); see Matter of Lantry, 6 N.Y.3d at 55; Matter of Kelly v. Beame, 15
N.Y.2d 103, 109 (1965) (“[t]he pivotal question is the nature of the work
actually performed”). The determinative factor for prevailing wage
purposes is how BPW has classified the tasks within each work process.
Mr. Alund explained that “a glazier apprentice may be paid glazier
apprentice wages on a public work project for tasks that are classified as
glazier’s work,” but tasks within the same work process that BPW has
assigned to another trade require the payment of the applicable
journeyworker wage rate (259-260). And Ms. Thomson explained that
“[t]he training that an apprentice receives in a DOL-certified program
does not determine the classification of work for the purposes of
prevailing rates on public-work projects” (251). And if it did, apprentice
programs could be flooded with requests to expand the programs simply
to allow contractors to cut their costs on public work projects.
In any event, the record does not support plaintiffs’ argument that
ironworker tasks are taught as part of their glazier apprentice program.
A work process, such as “curtain wall,” may contain tasks that BPW has
45
classified for prevailing wage purposes as belonging to more than one
trade. Jane Thompson, DOL’s Director of the ATP, explained in her
affidavit that “DOL’s current training outline for registered glaziers’
apprentice programs” uses “curtain wall” as a short-hand reference, but
this “does not mean that a registered glaziers’ apprentice program must
teach curtain-wall work processes that are classified as ironworkers’
work for the purposes of determining prevailing rates on public-work
projects” (250-251; see 252-255).
The Fourth Department overlooked the distinction between work
processes and the tasks of which they are comprised-some belonging to
ironworkers, some to glaziers - when it accepted plaintiffs’ argument
that DOL is “erroneously interpreting Labor Law § 220(3-e) as requiring
contractors on public works projects to pay glazier apprentices the wages
of ironworker journeymen when the glazier apprentices install curtain
walls, store fronts and pre-glazed windows” (398). The court erred in
finding that “such work remains a work process of glaziers” (398). As
rioted above, these work processes belong to neither trade exclusively,
since the trade classification for prevailing wage purposes depends on the
actual tasks within the work processes.
46
Here, BPW has classified the disputed tasks as ironwork, a
classification this Court upheld in Lantry. That BPW classification
governs for prevailing wage purposes, and glazier apprentices who
perform them are not working “as such” and thus cannot be paid “as
such.” As noted above, even if ironworker tasks were included in ATP-
approved glaziers’ apprenticeship programs and are performed on non¬
public projects, this would not entitle plaintiffs to circumvent the
prevailing wage law by paying wages less than those called for by the
formal trade classifications BPW is authorized to create for public work
projects.
For all of these reasons, the Appellate Division erred in striking
down DOL’s interpretation and this Court should reverse and declare
that it is rational.
47
CONCLUSION
This Court should reverse the Fourth Department’s memorandum
and order and enter a judgment declaring that DOL’s interpretation,
limiting the payment of apprentice wage rates to apprentices who are
actually performing work that is classified within their trade or
occupation, is reasonable and consistent with the prevailing wage law
and apprenticeship statutes that DOL is mandated to enforce.
Dated: Albany, New York
August 9, 2017
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General
State of New York
Attorney for
By:
OWEN DEMUTH
Assistant Solicitor General
BARBARA D. UNDERWOOD
Solicitor General
ANDREW D. BING
Deputy Solicitor General
OWEN DEMUTH
Assistant Solicitor General
of Counsel
The Capitol
Albany, NY 12224
(518) 776-2053
Reproduced on Recycled Paper
48
APL-2017-00087
H>tate of Iforb
Court of Appeals
INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, DISTRICT
COUNCIL NO. 4, BY ITS SECRETARY-TREASURER, MARK STEVENS; and
INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, 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-Appellants,
- AGAINST -
THE NEW YORK STATE DEPARTMENT OF LABOR, AND MARIO MUSOLINO, AS
ACTING COMMISSIONER OF THE 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.
CERTIFICATE OF COMPLIANCE WITH RULE 500.13(c)(1)
The undersigned attorney, Owen Demuth, hereby certifies that this brief
complies with the type-volume limitations of 500.13(c)(1). According to the word
processing system used by this office, all printed text in the body of this brief contains
9.061 words. —
OWEN DEMUTH
Assistant Solicitor General
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Respondent- Appellant
Albany, New York 12224
(518) 776-2053
State of New York
Court of Appeals
INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, ET AL.,
Plaintiff-Respondents,
-against-
THE NEW YORK STATE DEPARTMENT OF LABOR, ET AL.,
Defendants-Appellants,
COURT #APL-2017-00087 - AD #CA 16-00663- INDEX #801775/2015 - OAG #15-184866
STATE OF NEW YORK
COUNTY OF ALBANY
CITY OF ALBANY
ss:
WILLIAM SPORTMAN being duly sworn says:
I am over eighteen years of age and an employee in the office of the Attorney
General of the State of New York, attorney for the Defendants-Appellants. herein.
On 9th day of August. 2017 I served the annexed Record and Brief for the
upon the individual named below, by depositing 3 copies of
each thereof, properly enclosed in a sealed, postpaid wrapper, in the letter box of the
Capitol Station post office in the City of Albany, New York, a depository under the exclusive
care and custody of the United States Postal Service, directed to the said individual at the
address within the State respectively theretofore designated by them for that purpose as
follows:
Defendants-Appellants
(PLEASE SEE THE ATTACHED SERVICE LIST)
Sworn to before me this
9th day of August. 2017
NOTARY PUBETC
KENNETH KRUEGER
Notary Public, State of New Yoi;k
Reg. No. 01 KR6271 239
Qualified in Albany County A*-.
Commission Expires October 29, 20QLT
ATTACHED SERVICE LIST
John A. Collins, Esq.
Richard D. Furlong, Esq.
Joseph L. Guza, Esq.
LIPSITZ GREEN SCIME CAMBRIA LLP
42 Delaware Avenue, Suite 120
Buffalo, N.Y. 14202
Daniel P. Adams, Esq.
ADAMS BELL ADAMS, P.C.
28 East Main Street, Suite 600
Rochester, N.Y. 14614
Patricia Gillen, Esq.
DUKE HOLZMAN PHOTIADIS & GRESENS, LLP
701 Seneca Street, Suite 750
Buffalo, N.Y. 14210
Edward A. Trevvett, Esq.
HARRIS BEACH, PLLC
99 Garnsey Road
Pittsford, N.Y. 14534