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
of dBteto orft
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-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.
REPLY 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: October 31, 2017
Reproduced on Recycled Paper
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES iii
PRELIMINARY STATEMENT 1
ARGUMENT
DOL’s INTERPRETATION IS RATIONAL AND CONSISTENT WITH THE PLAIN
LANGUAGE AND STATUTORY PURPOSES OF LABOR LAW § 220 AND
ARTICLE 23 4
POINT I
THE APPELLATE DIVISION ERRED IN HOLDING THAT AN APPRENTICE MAY
BE PAID AS SUCH SO LONG AS HE OR SHE IS REGISTERED IN AAYBONA
FIDE APPRENTICE PROGRAM 4
A. The Appellate Division Should Have Deferred to DOL’s
Interpretation of the Prevailing Wage Law 4
B. DOL Properly Read the Statute to Condition the Payment
of Apprentice Wage Rates on the Apprentices’ Performance
of Tasks Within Their Trade Classification. 7
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.
7
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.
13
l
TABLE OF CONTENTS (cont’d)
PAGE
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 15
C. Plaintiffs’ Policy-Based Arguments are Meritless 17
POINT II
BPW’s PREVAILING WAGE LAW TRADE CLASSIFICATIONS, RATHER THAN
THE ATP-APPROVED APPRENTICE PROGRAM CURRICULA, GOVERN THE
PAYMENT OF APPRENTICES ON PUBLIC WORK. 19
A. DOL’s Statutory Obligation to Enforce the Prevailing Wage
Law on Public Work Projects is not Governed by the More
Flexible Apprenticeship Program Curricula that Apply to
Both Public and Private Work..... 22
B. The “Work Processes” Specified in Glazier Apprenticeship
Program Curricula are not the Same as the BPW “Tasks”
That Govern For Prevailing Wage Purposes :26
CONCLUSION 32
ii
TABLE OF AUTHORITIES
CASES PAGE
Action Electrical Contractors Company v. Goldin,
64 N.Y.2d 213 (1984) 13
Albany Elec. Contrs. Assn. v. Angello,
6 A.D.3d 920 (3d Dep’t 2004) 12
Barenboim v. Starbucks Corp.,
21 N.Y.3d 460 (2013) 4, 5,6
Brown, Matter of v. Wing,
93 N.Y.2d 517 (1999) 8
Chesterfield Assoc., Matter of v. New York State
Dept, of Labor,
4 N.Y.3d 597 (2005) 4-5
De La Cruz v. Caddell Dry Dock & Repair Co.,
21 N.Y.3d 530 (2013) . 22
General Elec. Capital Corp., Matter of v. New York State
Div. of Tax Appeals, Tax Appeals Trib.,
2 N.Y.3d 249 (2004) . 10
James Square Assocs. v. Mullen,
21 N.Y.3d 233 (2013) 8
Kelly, Matter of v. Beame,
15 N.Y.2d 103 (1965) 9
Lantry, Matter of v. State of New York,
6 N.Y.3d 49 (2005) passim
Long v. Adirondack Park Agency,
76 N.Y.2d 416 (1990) 10
iii
TABLE OF AUTHORITIES (cont’d)
CASES (cont’d) PAGE
Monarch Elec. Contr. Corp., Matter of v. Roberts,
70 N.Y.2d 91 (1987) 7, 9, 23
Samiento v. World Yacht, Inc.,
10 N.Y.3d 70 (2008) 4, 5,6
Sanders v. Winship,
57 N.Y.2d 391 (1982) 10
United Constr. Contrs. Assn., Inc., Matter of u. Levine,
52 A.D.2d 371 (3d Dep’t),
Iv. denied, 39 N.Y.2d 711,
appeal dismissed, 39 N.Y.2d 1057 (1976) . 16
NEW YORK STATE CONSTITUTION
article I, § 17 7
STATE STATUTES
Labor Law
article 23.
§ 196-d ....
§ 220
§ 220(3-e)
passim
......4,6
passim
passim
L. 1967, Ch. 503 § 1 12
STATE RULES AND REGULATIONS
12 N.Y.C.R.R.
§ 601.1
§ 601.3(d)(6)
§ 601.7(b) ....
§ 601.8
§ 601.9.
15
24
15
16
16
iv
PRELIMINARY STATEMENT
The New York State Department of Labor (DOL) is charged with
implementing the constitutional and statutory mandate that workers
engaged in the performance of any public work must be paid not less than
the rate of wages prevailing in the same trade or occupation in the
locality in the State where the public work is to be located. In our main
brief (“DOL Br.”), we explained that DOL’s reasonable interpretation of
Labor Law § 220(3-e), part of the prevailing wage law, furthers this
mandate.
In particular, DOL interprets § 220(3-e) to permit contractors to pay
the lower apprentice wage rates on a public work project only when
apprentices who are enrolled in an apprentice program that is registered
with DOL’s Apprenticeship Training Program (ATP) are performing
work that DOL’s Bureau of Public Work (BPW) has classified for
prevailing wage purposes as part of the specific trade or occupation for
which that apprenticeship program is registered.
In response, plaintiffs reiterate the argument they prevailed on in
the Appellate Division, namely, that an apprentice may be paid an
apprentice wage rate for any work, regardless of BPW classification, as
long as the apprentice is properly registered in “a” (meaning “any”)
apprenticeship program that is registered with ATP. In addition,
plaintiffs now showcase a much narrower argument they only hinted at
below: that DOL’s BPW must permit glazier contractors to pay the lower
apprenticeship wage rates whenever the glazier apprentices perform any
task that is part of a loosely defined “work process” that is included in
the broad curriculum of the ATP-approved glazier apprenticeship
program. This is true, plaintiffs assert, even if BPW has classified the
specific task that the apprentice is actually performing as part of another
trade or occupation for prevailing wage purposes.
Whether considered in their broad or narrow versions, plaintiffs’
arguments are meritless and are inconsistent with the prevailing wage
law, which requires DOL to ensure that apprentices and journeyworkers
are paid on public work projects according to the work they actually
perform. DOL’s construction of Labor Law § 220(3-e) is supported by the
language of that statute, the Constitution, case law from this Court, and
the apprenticeship statutes in Labor Law article 23, and reasonably
furthers the goals of the prevailing wage law. Further, DOL’s
construction ensures that apprentices receive approved, supervised
2
training that is relevant and appropriate to the trade in which they have
enrolled.
Additionally, plaintiffs’ reliance on the scope of apprenticeship
program curricula to establish classifications for prevailing wage
purposes is mistaken. These training programs, which apply to both
public and private work, have a broader scope and may include training
in skills that are relevant to more than one trade or occupation. But their
curricula do not govern DOL’s strict mandate to enforce the prevailing
wage law. In implementing the prevailing wage mandate, BPW, not
ATP, classifies specific tasks as part of a particular trade or occupation.
This Court has held that BPW’s trade classifications are entitled to
deference. In particular, this Court has upheld BPW’s classification of
some of the tasks at issue here as ironwork, not glazier’s work, and
plaintiffs’ real complaint is with this Court’s ruling. Matter of Lantry v.
State of New York, 6 N.Y.3d 49 (2005). But BPW’s classifications, rather
than work processes specified in the apprenticeship program curricula,
govern how apprentices are paid for public work. For all of these reasons,
discussed in our main brief and further below, this Court should reverse
3
the Fourth Department’s decision and uphold DOL’s statutory
interpretation.
ARGUMENT
DOL’S INTERPRETATION IS RATIONAL AND CONSISTENT WITH THE
PLAIN LANGUAGE AND STATUTORY PURPOSES OF LABOR LAW § 220
AND ARTICLE 23
POINT I
THE APPELLATE DIVISION ERRED IN HOLDING THAT AN
APPRENTICE MAY BE PAID AS SUCH SO LONG AS HE OR SHE IS
REGISTERED IN ANY BONA FIDE APPRENTICE PROGRAM
A. The Appellate Division Should Have Deferred to DOL’s
Interpretation of the Prevailing Wage Law
As we explained in our main brief (DOL Br. at 25-27), this Court
has repeatedly held that 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); see also Barenboim v. Starbucks Corp., 21 N.Y.3d
460, 470-71 (2013) (deferring to and upholding DOL’s long-standing
construction of [Labor Law §] 196-d as limiting tip-pool eligibility to
workers who “perform, or assist in performing, personal service to
patrons at a level that is a principal and regular part of their duties and
is not merely occasional or incidental”); Matter of Chesterfield Assoc, v.
4
New York State Dept, of Labor, 4 N.Y.3d 597, 604 (2005) (explaining that
the “construction given statutes and regulations by the agency
responsible for their administration, if not irrational or unreasonable,
should be upheld” (internal quotation marks and citation omitted).
Deference is especially appropriate here because DOL is
interpreting Labor Law § 220(3-e), governing its authority to formulate
and enforce prevailing wage trade classifications on public work projects.
This Court has recognized that such classifications “are a matter given
to the expertise of [DOL]” and thus will not be disturbed “absent a clear
showing that a classification does not reflect the nature of the work
actually performed.” Matter of Lantry v. State of New York, 6 N.Y.3d at
55 (citations and quotation marks omitted).
In response, plaintiffs mistakenly assert that deference is limited
to cases 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” (Plaintiffs’ Brief [“PI. Br.”] at 31). But this Court
has held that DOL’s authority is not so circumscribed. In both Samiento
and Barenboim, for example, the Court was “presented with a question
of statutory interpretation” involving language that was comparable to
5
the language at issue here, and the Court deferred to DOL’s construction.
Samiento, 10 N.Y.3d at 77-79 (whether Labor Law § 196-d, which
prohibited an employer from retaining “any charge purported to be a
gratuity,” applied to a mandatory service charge that is held out to the
customer as a substitute for a tip); see Barenboim, 21 N.Y.3d at 470-71
(deferring to and agreeing with DOL’s interpretation of who is an “agent”
of management and thus ineligible under Labor Law § 196-d to share in
the tip-pool). This case presents a similar question, and plaintiffs have
presented no basis for withholding deference.
The Fourth Department refused to defer to DOL’s interpretation of
Labor Law § 220(3-e) because the court mistakenly concluded that DOL’s
interpretation was “contrary to the plain meaning of the statutory
language” (399) (citation and quotation marks omitted). As we explain
in our main brief (DOL Br. at 28-40) and below, DOL’s interpretation is
grounded in the statute’s plain language, the case law and the underlying
purposes of the prevailing wage law. And even if the statute were
ambiguous, DOL has provided a rational interpretation that is consistent
with these authorities and the overall statutory scheme. In either case,
deference to DOL’s interpretation is warranted.
6
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.
We explained in our main brief that DOL’s interpretation of Labor
Law § 220(3-e) is supported by the statutory language and the underlying
goals of the prevailing wage law (DOL Br. at 28-34). As explained in our
main brief (DOL Br. at 29-30), the Constitution speaks only of “laborer[s],
workerjs] or mechanic[s]” and does not mention apprentices at all. N.Y.
Const., art I, § 17. It was not until 1966 that the Labor Law was amended
to authorize the employment of apprentices on public work projects.
Matter of Monarch Elec. Contr. Corp., 70 N.Y.2d 91, 95-96 (1987). DOL
appropriately construes the apprenticeship provisions strictly to ensure
that the purposes of the prevailing wage law are not subverted.
Thus, the statute provides that apprentices “will be permitted to
work as such” only when they are individually registered in an ATP-
registered program. Labor Law § 220(3-e). As the dissent below
recognized (402), DOL reasonably determined that for prevailing wage
7
purposes a glazier apprentice is working “as such” only when performing
tasks that BPW has classified as within the glazier’s trade or occupation.
A glazier’s apprentice is not working “as such” when performing
ironworkers’ tasks. Such an individual is working as an ironworker, and
the statute requires compensation for “the classification of work actually
performed,” that is ironwork, and since the individual is not a registered
ironworker apprentice participating in a registered ironworkers
apprenticeship program, the ironworker work must be paid at the
ordinary (journeyworker) rate for ironworkers. Labor Law § 220(3-e).
Thus, contrary to plaintiffs’ suggestion (PL Br. at 4-5), they cannot
use glazier apprentices to perform ironworker tasks and pay them at
ironworker apprentice rates. Because DOL has offered “a rational
interpretation that [is] not inconsistent with the plain language,” it
should be upheld. 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”).
Accordingly, plaintiffs’ contention that DOL has improperly added
a “third requirement” to section 220(3-e) (PI. Br. at 11-12) is meritless.
8
The apprenticeship provisions cannot be construed in a vacuum; they
exist within a statutory scheme that is premised on tasks being classified
into trades and occupations before applicable rates of pay are assigned,
and before the apprenticeship provisions are applied to determine which
individuals can be paid apprentice rates for a given trade or occupation.
DOL’s construction is consistent with the constitutional mandate and the
prevailing wage statute, which require that a worker’s prevailing wage
be determined separately for each trade or occupation. Moreover, DOL’s
interpretation is consistent with the prevailing wage law’s fundamental
purposes, as construed by this Court: (1) 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; see Kelly v. Beame, 15 N.Y.2d 103, 109 (1965)
(“[t]he pivotal question is the nature of the work actually performed”);
and (2) 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.
9
In light of the above, the requirement that an apprentice be
performing tasks that correspond to the BPW classification that is the
subject of his or her apprentice training follows reasonably from section
220(3-e), the constitutional mandate, the rest of section 220 and Labor
Law article 23. See Long v. Adirondack Park Agency, 76 N.Y.2d 416, 420
(1990) (when interpreting statutes, courts should “give the statute a
sensible and practical over-all construction, which is consistent with and
furthers its scheme and purpose and which harmonizes all its
interlocking provisions”); Sanders v. Winship, 57 N.Y.2d 391, 396 (1982)
(“In the exposition of a statute, the intention of the lawmaker will prevail
over the literal sense of the terms; and its reason and intention will
prevail over the strict letter”); see also Matter of General Elec. Capital
Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 N.Y.3d
249, 254 (2004) (agency may “go beyond the text” of the legislation where
its construction is “not inconsistent with the statutory language or its
underlying purposes”).
In contrast, the constricted interpretation urged by plaintiffs and
adopted by the Fourth Department undermines the purposes of the
prevailing wage law. Their unduly narrow view of the statute would have
10
the untenable result, adopted by the Fourth Department majority, that
DOL must allow contractors to pay apprentice wages to any apprentice
performing any task, so long as he or she is duly registered in “a”
(meaning “any”) DOL-approved apprenticeship program.
The Legislature cannot have intended that interpretation. As
explained above, in enacting the prevailing wage statute, the Legislature
provided that apprentices, like journeyworkers, must be paid based on
their “trade or occupation,” which this Court has emphasized is based on
the nature of the work actually performed. Matter of Lantry, 6 N.Y.3d at
55. The prevailing wage law and the trade classifications upon which it
depends apply with as much force to apprentices as to journeyworkers.
For glazier apprentices to work and be paid “as such,” they must be
performing tasks that BPW has classified as the work of glaziers, not
ironworkers. Labor Law § 220(3-e).
Moreover, there is no merit to plaintiffs’ argument that the second
sentence of Labor Law § 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” (PI. Br. at
22). That sentence addresses the allowable journeyworker-to-apprentice
11
ratios on any public work project and provides: “[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). The requirement
that the ratio could “not be greater than the ratio permitted to the
contractor as to his work force on any job” reflects the fact that when this
provision was enacted in 1967, see L. 1967, Ch. 503 § 1, contractors within
the same trade could be subject to different ratios in different parts of the
state. See Albany Elec. Contrs. Assn v. Angello, 6 A.D.3d 920 (3d Dep’t
2004) (noting that in 1995, DOL adopted uniform statewide ratios). The
statutory requirement meant that a contractor was required to use the
level of supervision of apprentices specified in its apprentice program,
even when the contractor was performing public work in a different part
of the State that permitted a lesser level of supervision.
Thus, contrary to plaintiffs’ argument (PI. Br. at 22-25), the ratio
language in Labor Law § 220(3-e) does not authorize contractors to use
apprentices paid at apprentice rates for out-of-trade-work so long as they
satisfy the ratio applicable to the apprentice’s program. And contrary to
plaintiffs mistaken reading, nothing in that second sentence, or
12
elsewhere, permits reduced rates to be paid to apprentices who are
performing tasks that BPW has classified as the work of another trade.
Finally, plaintiffs’ reliance on this Court’s decision in Action
Electrical Contractors Company v. Goldin, 64 N.Y.2d 213 (1984), is
misplaced. (PI. Br. at 19-20). That case did not involve a challenge to
DOL’s statutory authority and obligation to enforce the prevailing wage
law regarding the classification of tasks as part of a trade or occupation,
nor did it involve the appropriate payment of apprentices. Here, unlike
in that case, DOL’s interpretation is supported by the statute, the
Constitution, the case law, and Labor Law article 23.
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.
We explained in our main brief (DOL Br. at 34-36) that DOL’s
interpretation of § 220(3-e) is further supported by the portion of that
statute 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 statute’s reference to the “area of construction”
13
further implements the constitutional mandate that wages to be paid to
workers on public work projects, including apprentices, must be
evaluated separately for each trade or occupation, and in particular that
the special statutory authority 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.
Although plaintiffs argue that the term “area of construction” is
limited to the geographic location where the public work takes place (PI.
Br. at 26-28), the commonsense meaning of that term in section 220(3-e)
and its usage in many federal and state cases across a wide variety of
jurisdictions (DOL Br. at 35-36) support DOL’s view that the phrase
refers to the type of public work performed, not just the locality in which
it is performed. The fact that the prevailing wage law also utilizes the
term “classification” as another way of indicating this concept does not
undermine DOL’s construction.
14
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.
As we explained in our opening brief (DOL Br. at 37-40), DOL’s
interpretation of Labor Law § 220(3-e) furthers the goals of its
apprenticeship statutes and regulations. These mandate that apprentice
programs provide “meaningful employment and relevant training for all
apprentices.” 12 N.Y.C.R.R. §601.1 (emphasis added), and that such
training be “appropriate to the trade for which the program is registered.”
Id., § 601.7(b). By requiring that apprentices assigned to public work
projects perform work classified within their trade or occupation in order
to justify the payment of apprentice wages, DOL ensures that the glazier
apprentices and other apprentices make the most of their opportunities,
which are limited by the journeyworker-to-apprentice ratios in section
220(3-e), to receive on-the-job training that furthers their training in
their trade or craft. Thus, plaintiffs are wrong to argue (PI. Br. at 31)
that article 23 does not support DOL’s construction of section 220(3-e).
Plaintiffs also advance the mistaken argument that DOL need not
use section 220 to enforce the prevailing wage law because the Labor
Law, including article 23, “already prohibits apprentices from performing
15
tasks outside the scope of their apprentice programs, without regard to
Section 220(3-e)” (Pl. Br. at 35, 44). As we discuss in Point II, below,
DOL’s oversight of apprentice programs under article 23 is separate from
and does not supplant DOL’s independent statutory obligation under
Labor Law § 220 to ensure that contractors comply with the trade
classifications that BPW is responsible for, including the appropriate
placement and payment of apprentices on public work projects.
Moreover, the purpose of the article 23 apprenticeship statutes and
the corresponding regulations is different: to oversee the training
provided within the program. Article 23 and the corresponding
regulations provide for DOL’s oversight of the apprentice programs
themselves through probation, monitoring, evaluation and in extreme
cases, deregistration. See 12 N.Y.C.R.R. §§ 601.8, 601.9.; see also Matter
of United Constr. Contrs. Assn., Inc. v. Levine, 52 A.D.2d 371, 372, 375
(3d Dep’t 1976) (upholding DOL’s deregistration of an 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”).
16
C. Plaintiffs’ Policy-Based Arguments are Meritless
Finally, plaintiffs raise several policy-based challenges to DOL’s
interpretation. Their arguments are more appropriately made to the
Legislature, but in any event the arguments are unpersuasive. Plaintiffs
claim that DOL’s position has subjected the glaziers’ industry to “myriad
harms and injustices” by favoring ironworkers and increasing costs to
glazier contractors and taxpayers (PI. Br. at 12-13, 50-54).1 But DOL’s
policy applies to all apprentices generally. It does not grant a “monopoly”
to ironworkers: if they place apprentices in an ironworkers’ apprentice
program but assign them work classified in some other trade, they, like
the glazier contractors, must pay the appropriate journeyworker
prevailing wage rates for that work.
The disadvantages plaintiffs object to result from DOL’s
determination years ago that certain tasks required in installing curtain
wall, storefronts and entrances, and pre-glazed windows are within the
ironworkers’ trade. Plaintiffs repeatedly disavow any challenge to the
1 Plaintiffs’ discussion (PI. Br. at 9 n. 2, 52) of Mr. Alund’s
background, and the background of other members of his family, as
ironworkers is irrelevant to the questions before this Court and should
be disregarded.
17
DOL’s classifications (Pl. Br. at 55-56), but that is in fact the import of
their challenge here- they want to be able to pay apprentice-level wages
to glazier apprentices doing work that DOL has classified as ironwork.
But their challenge to DOL’s classifications has already been lost; in
Matter of Lantry this Court specifically upheld one of the classifications
at issue here, i.e., DOL’s designation of the installation of pre-glazed
windows in masonry, as ironworker’s work, not glazier’s work, and the
Court emphasized more generally that DOL has broad flexibility in
assigning work to trade classifications. Matter of Lantry, 6 N.Y.3d at 57-
58.
Similarly, plaintiffs’ argument (Br. at 50-52) that DOL’s policy
distorts the market for glazier’s work and their claim that glaziers’ access
to public work will be reduced, are simply arguments that DOL has
misclassified the work, a position plaintiffs repeatedly disclaim,
presumably because it was already effectively rejected by the Court for
the reasons explained in Lantry. In any case, DOL’s interpretation of the
apprenticeship standards does not unfairly limit glazier apprentices’
access to public works projects. Glazier apprentices may continue to be
placed on public work projects when they perform “tasks that are
18
classified as glazier’s work” (259), and are not barred from performing
work classified in other trades so long as they are compensated at the
journeyworker rate for that other work. As the record demonstrates,
DOL currently classifies several of the tasks related to installation of
curtain wall, storefronts and entrances and pre-glazed windows as
glazier’s work (261-262). Finally, “apprentices can fulfill DOL’s
requirements through on-the-field training in private work” since DOL
has no requirement for the number of hours to be spent on taxpayer-
financed projects (251).
POINT II
BPW’s PREVAILING WAGE LAW TRADE CLASSIFICATIONS,
RATHER THAN THE ATP-APPROVED APPRENTICE PROGRAM
CURRICULA, GOVERN THE PAYMENT OF APPRENTICES ON
PUBLIC WORK
In this Court, plaintiffs also make the narrower argument that
DOL’s duty to enforce both the prevailing wage mandate and BPW’s
trade classifications for public work projects is governed by the content
of the various apprenticeship programs that ATP approves (PI. Br. at 35-
43). Specifically, plaintiffs argue that “[t]he ultimate irony inthis dispute
is that Glazier Contractors are being told by DOL that they cannot
19
compensate glazier apprentices as apprentices when performing work
required to be taught by their DOL-registered apprenticeship program”
(PL Br. at 38) (emphasis in original).
In other words, plaintiffs assert, if a work process is taught in a
glazier’s apprenticeship program, DOL must permit a glazier contractor
to pay apprentice wages whenever that apprentice performs a specific
task within that work process on a public work project, even if BPW has
classified that task as part of another trade or occupation for prevailing
wage purposes. As we explained in our main brief (DOL Br. at 43-47),
this argument both misstates the law and mistakenly conflates DOL’s
obligations to enforce the prevailing wage law with the necessarily
broader scope of the apprenticeship programs it oversees.
Preliminarily, we note that plaintiffs’ argument to this Court is
much narrower than the one on which it focused in Supreme Court (See
56 [Plaintiffs’ Compl. at stating that [“[p]laintiffs only challenge
[DOL’s] failure and refusal to abide by the plain language of [Labor Law
§ 220], which provide[s] that apprentices enrolled in a bona fide
apprentice program registered with DOL shall be paid the applicable
posted prevailing rates for apprentices and not journeypersons.” Nor was
20
this argument prominently featured in plaintiffs’ appeal to the Fourth
Department until their reply brief (See Plaintiffs’ main Fourth
Department brief at 3, 5 [stating that the “central issue” presented by
plaintiffs’ appeal was whether Labor Law § 220(3-e) provide[s] that
“[apprentices] may be paid apprentice-level wages only if they are
registered in the apprenticeship program relating to the classification for
the labor they will be performing”]).
Rather than focusing on the content of the glaziers’ apprenticeship
program, plaintiffs argued much more broadly below that an apprentice
on a public work project must be paid at apprentice rates so long as the
apprentice is properly registered in any ATP-approved apprenticeship
program. The Appellate Division accepted this argument. (400). Now,
perhaps recognizing that their argument leads to untenable results,
plaintiffs suggest that apprentice-level wages are required only when the
apprentice performs work taught in the apprenticeship program in which
the apprentice is enrolled. But the only statutory basis that plaintiffs
suggest for this argument would also require upholding their broader
claim, and thus the narrower version of their argument should be
rejected for the reasons already discussed in Point I, above.
21
Even considered on its own terms, plaintiffs’ narrower argument
lacks merit, as explained in our main brief (DOL Br. at 43-47) and further
discussed below.
A. DOL’s Statutory Obligation to Enforce the Prevailing
Wage Law on Public Work Projects is not Governed by
the More Flexible Apprenticeship Program Curricula
that Apply to Both Public and Private Work
The training that an apprentice receives in an ATP-approved
apprenticeship program does not determine the classification of the work
for prevailing wage purposes on public work projects. The prevailing
wage law and DOL’s statutory authority to regulate the training
apprentices receive serve different purposes. The Legislature’s primary
intent in enacting Labor Law § 220 and the prevailing wage law in
general was “to hold its territorial subdivisions to a standard of social
justice in their dealings with laborers, workmen and mechanics.” De La
Cruz v. Caddell Dry Dock & Repair Co., 21 N.Y.3d 530, 535 (2013); see
NY Const., art. I, § 17.
To this end, Labor Law § 220 provides that DOL “must classify the
work by assigning the task performed by an employee to a specific trade
or occupation,” which BPW accomplishes by referring in part to local
22
collective bargaining agreements, a practice that has been upheld by this
Court. Matter of Lantry v. State of New York, 6 N.Y.3d 49, 54 (2005). The
prevailing wage law then requires the payment of an appropriate wage,
which is determined not by what the apprentice is studying in his or her
training program, but rather by “the classification of work he actually
performed.” Labor Law § 220(3-e).
In contrast, the apprenticeship programs that ATP oversees supply
apprentices not only for public work projects but also for a wide variety
of private work projects, which are not governed by the prevailing wage
law. The apprentice programs do not contain rigid, bright-line boundaries
between the work processes and tasks to be taught because such limits
would be counterproductive to the focus of the programs, to ensure that
apprentices receive “approved, supervised training.” Matter of Monarch
Elec. Contr. Corp. v. Roberts, 70 N.Y.2d 91, 95-96 (1987). Thus, it is
possible that apprenticeship programs might occasionally teach a work
process that overlaps with another trade without affecting how the
apprentices should be paid for public work, because such overlap has no
bearing on DOL’s statutory duty on public work projects to ensure that
the appropriate wage is paid based on the work actually performed.
23
Indeed, DOL’s apprenticeship regulations expressly recognize the
potential for overlap among work processes by providing that an
apprenticeable occupation can include skills that are broad enough to be
applicable “in like occupations.” 12 N.Y.C.R.R. § 601.3(d)(6). But this
does not mean that the apprentice programs are required to teach tasks
that fall outside of the BPW classifications. See 250-251 [Affidavit of ATP
director Jane Thompson, explaining 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”). And contrary to plaintiffs’ argument (PI.
Br. at 10), DOL has consistently emphasized that the work processes that
are included in apprenticeship program curricula have no impact on the
formal trade classifications for public work projects that BPW is required
to create under the prevailing wage law
Plaintiffs’ contentions are, in essence, an attack on DOL’s
longstanding statutory authority to make such classifications, and the
classifications themselves. If DOL were required to tailor its public work
24
trade classifications to precisely mirror the expansive and frequently
changing curricula of each of the apprenticeship programs that it
oversees, its ability effectively to enforce the prevailing wage law would
be severely undermined. See Matter of Lantry, 6 N.Y.3d at 57 (agreeing
with DOL that forcing it to compile and consider survey evidence of
prevailing private practices when formulating its public work trade
classifications would impose an impractical administrative burden on the
agency). This Court rejected a similar argument in Lantry and held that
the prevailing wage law “does not require a specific procedure for the
Commissioner to use in evaluating the appropriate trade or occupation
to assign to particular work.” Matter of Lantry, 6 N.Y.3d at 55.
The result should be the same here: BPW is not required to base its
public work trade classifications - and the appropriate wage to pay
thereunder — on the broader parameters of the apprenticeship programs
that ATP oversees, and DOL’s interpretation is reasonable and well
within its statutory authority. And, as we previously explained (DOL
Br. at 45), plaintiffs’ argument that DOL’s trade classifications are
dictated by apprenticeship program curricula would likely encourage
25
contractors to push for an expansion of the scope of these curricula in
order to ensure the payment of the lowest wages on public work projects.
For all of these reasons, this Court should reject plaintiffs’
argument that the apprenticeship curricula determine the appropriate
prevailing wage rate to pay to apprentices on public work projects.
B. The “Work Processes” Specified in Glazier
Apprenticeship Program Curricula are not the Same as
the BPW “Tasks” that Govern for Prevailing Wage
Purposes
As explained above, apprenticeship program curricula do not
determine BPW’s trade classifications for purposes of determining the
appropriate wage to pay apprentices on public work projects. Plaintiffs’
affidavits (PI. Br. at 43-48) refer to overall work processes, which are not
determinative of the prevailing wage classification of individual tasks.
The fact that a work process is included in the glaziers’ apprenticeship
program does not establish that DOL has irrationally directed glazier
contractors to pay their apprentices journeyworker wages for performing
tasks within those work processes that BPW has classified as ironworker
tasks. In addition, plaintiffs have failed to establish that the work
26
processes that are taught in glazier apprenticeship programs are in fact
the same as the tasks performed by ironworkers.
Plaintiffs insist that they have “completely rebutted” DOL’s
explanation that the term “work process” is “only a shorthand for glazier-
specific tasks related to such work processes” (PI. Br. at 40), but the
record belies this assertion. Plaintiffs have confused “work processes,” a
broad term applicable to apprenticeship programs, with the many
specific “tasks” regarding “metal windows, curtain wall, metal
entranceways, etc.” (261). Critically, it is these tasks that BPW classifies
as belonging to a particular trade or occupation. Jane Thompson, the
director of DOL’s ATP, explained that “DOL issues outlines of work
processes that each apprentice program must include,” but emphasized
that the work processes are “shorthand” for the “lengthy, complex set of
tasks that each work process may involve” (250).
Plaintiffs apd the Fourth Department were thus both mistaken
when they asserted that the installation of storefronts, curtain wall and
storefront windows exclusively “remain[] a work process of glaziers” (398;
see Pl.Br. at 10). No trade exclusively “owns” these work processes. For
example, Christopher Alund explained that the installation of curtain
27
wall contains many distinct tasks; BPW has classified some of these tasks
as glaziers’ work, some as ironwork, and some as the work of carpenters.
(258-262). For example, Alund explained that BPW has classified “the
installation of glass-related products in curtain wall, such as glass
settings, sealants, and pressure plates” as glaziers’ work (258, 261-262),
and any claim that DOL is prohibiting glazier contractors from
compensating glazier apprentices at apprentice rates (PI. Br. at 46) when
they perform these tasks is mistaken. The fact that ironworkers and
glaziers may share the various tasks involved in curtain wall does not
undermine BPW’s determinations because the tasks, not the work
process, are the focus of the BPW trade classification. Thus, “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, unless performed by
an apprentice in that trade (259-260). BPW’s classification of the tasks
under these work processes are well-defined and have been known to
plaintiffs since at least 2005 (258, 261-262).
28
Although plaintiffs insist that the installation of pre-glazed
windows is also a critical part of a glazier apprentice’s training (PI. Br. at
3, 10; see 100), the record again does not support this claim. An early
version of the glazier apprentice curriculum that plaintiffs attached to
their affidavits make a fleeting reference to this work process (157), but
later versions of the same curriculum omit it (167-171). The early version
of the curriculum does not specify what tasks this work entails (157), and
plaintiffs do not explain it either. Accordingly, plaintiffs have not
established that the glaziers teach the installation of preglazed windows,
namely “the [ironworker] process of installing preglazed windows into
masonry openings,” in their apprenticeship program. Matter of Lantry,
6 N.Y.3d at 57 (noting that DOL rationally classified the installation of
preglazed windows as ironwork rather than glaziers’ work in part
because installation required only the use of aluminum clips and fastener
screws; “no glazing was necessary because the window manufacturer
already performed that function”).
The consequences alleged in plaintiffs’ affidavits (PI. Br. 43-48)
result from BPW’s classifications of the relevant tasks, which plaintiffs
repeatedly proclaim they are not challenging, rather than from BPW’s
29
reasonable interpretation of the statutory requirement that glazier
apprentices must be working “as such” in order to be paid an apprentice
wage. And the alleged consequences are overstated, because as explained
above, BPW has classified a number of the tasks at issue here as glazier’s
work, and so there is work for the glazier apprentices to do that can be
compensated at the glazier apprentice wage rate.
Finally, the fact that glazier apprentices may perform ironworker’s
tasks on private jobs does not require DOL to abandon the distinctions it
has carefully drawn between different trade classifications, including
between ironworkers and glaziers, for public work purposes. As Alund
stated, “[c]hanging [these] requirementÿ] so that a public work
investigator would have to allow an apprentice rate to be paid if (among
other things) apprentices in the program do the work in question in the
private sector would be an enormous administrative burden” (260).
Alund explained that DOL public work investigators are already
responsible “for determining trade classifications on an enormous
number of work-processes in a wide variety of public-work construction
projects across the state” (260). Thus, “[e]ven if public-work investigators
had the authority to assess the work done by apprentices on private work,
30
opening up that broad area of inquiry would not be administratively
feasible” (260). Given the number of localities that DOL and its public-
work investigators would have to cover in making these determinations,
such a requirement would be “costly and burdensome.” Id. at 54. DOL’s
interpretation of Labor Law § 220(3-e) is reasonable and this Court
should uphold it.
31
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
October 31, 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
AFFIRMATION OF COMPLIANCE
Pursuant to the Rules of Practice of the New York Court of Appeals (22
N.Y.C.R.R.) § 500.13(c)(1), OWEN DEMUTH, an attorney in the Office of the
Attorney General of the State of New York, hereby affirms that according to
the word count feature of the word processing program used to prepare this
brief, the brief contains 6,027 words, which complies with the limitations
stated in § 500.13(c)(1).
(3Aÿ-
OWEN DEMUTH