Lantry v. State

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Labor Law §§ 220 and 220-b) to review a determination of respondent Commissioner of Labor which found that petitioner failed to pay prevailing wages and supplements.

In 1997, petitioner entered into a subcontract in connection with a project for the Ichabod Crane Central School District in Columbia County. The subcontract required petitioner to, among other things, install preglazed windows and curtain wall frames. Following a random investigation, respondent Department of Labor determined that petitioner underpaid certain of its employees and issued a notice to withhold payment from petitioner. In particular, the Department concluded that the installation of preglazed windows and the frame of the curtain wall was not the work of glaziers as petitioner claimed, but of ironworkers and that other work compensated at the glazier rate should have been classified as that of masons, laborers or carpenters.

Following a hearing on the matter, a Hearing Officer found

Petitioner argues that the Department’s use of a “nature of the work” test in making classification determinations for purposes of Labor Law § 220 is incorrect. Petitioner further challenges the Department’s reliance on collective bargaining agreements in determining the prevailing practice in a locality. Instead, petitioner asserts, such classifications should be based on the prevailing area practice as determined through reliable survey data or other evidence of work actually performed in a locality. Petitioner maintains that uncontroverted evidence demonstrates that the work at issue is performed by glaziers and that the Department’s classification of the tasks as ironworkers’ work is irrational. We disagree.

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’ ” (Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117 , 120 [1990], affd on op below 76 NY2d 946 [1990] [citations omitted], quoting Matter of Kelly v Beame, 15 NY2d 103 , 109 [1965]; see Matter of Consolidated Masonry Contrs. v Angello, 2 AD3d 997 , 997 [2003]). Indeed, in determining whether workers performing similar labor should be classified as engaging in different trades or occupations within the meaning of Labor Law § 220, the nature of the work performed is “[t]he pivotal question” (Matter of Kelly v Beame, supra at 109 ). Contrary to petitioner’s argument, it is well settled that collective bargaining agreements reached by labor organizations “may be used by [the Commissioner] as evidence to support his [or her] decision as to the proper classification,” whenever 30% of the workers in a trade in a given locality are subject to the collectively bargained rates (Matter of Otis E. Serv. v Hudacs, 185 AD2d 483 , 484-485 [1992]; see Matter of New York Tel. Co. v New York

Finally, we reject petitioner’s argument that the Department erred in finding that the failure to pay prevailing wages was willful. The finding of willfulness arose from petitioner’s payment of all work at the lower glaziers’ rate, including tasks such as affixing ceiling tiles and cleaning windows. A review of the record demonstrates that substantial evidence supports the Department’s determination that an experienced contractor such as petitioner “knew or should have known” (Matter of Marangos Constr. Corp. v New York State Dept. of Labor, 216 AD2d 758 , 760 [1995]; see Matter of D.D.G. Gen. Contr. Corp. v Hartnett, 149 AD2d 819 , 821 [1989]) that this work is usually performed by carpenters and laborers, respectively. Accordingly, we will not disturb that determination here.

We have considered petitioner’s remaining arguments and, to

Cardona, P.J., Spain, Carpinello and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.