Yerry v. Goodsell , 4 A.D.2d 395 ( 1957 )

Foster, P. J. (dissenting).

Petitioners appeal from a dismissal of a proceeding in the nature of mandamus and certiorari brought by certain unemployed workmen and their unions under article 78 of the Civil Practice Act and section. 220 of the Labor Law. Appellants filed a verified complaint with the respondent fiscal officer of the Board of Education, City of Kingston which charged that the Education Board was violating section 220 of the Labor Law by employing persons on a public work at below the prevailing rates of wages. ¡Respondent dismissed the complaint, apparently on the ground that since appellants were not employees of the board neither the individual appellants nor their unions had any standing to question the petitioners’ alleged payment of substandard wages. The Special Term sustained the respondent’s position and stated clearly in its decision that the statute protects only those employed on municipal works, and grants, to such individuals who may feel aggrieved the right to proceed in accordance with the procedure provided by statute, but the statute does not extend such right to other individuals or organizations.

We begin with the basic position that the public policy of the State, as specifically provided in section 220 of the Labor Law, is that workmen employed upon a public work shall be paid the prevailing rate of wages in the locality where the work is being performed. To implement this basic requirement the statute further provides:

“7. The fiscal officer as herein defined may, on his own initiative, and must, on a verified complaint in writing of any person interested, cause an investigation to be made to determine the prevailing rate of wages in the same trade or occupation in the locality within the state where such public work is being performed * * * The fiscal officer in such investigation shall be deemed to be acting in a judicial capacity, and shall have the right to issue subpoenas, administer oaths and examine witnesses. * * * Such fiscal officer shall make an order or determination not later than six months after the filing of such verified complaint.

“ 8. * * * Upon the entry of such order affecting either the hours of labor or rate of wages any party to the proceeding aggrieved thereby may review the said proceedings by a writ of certiorari within thirty days from the notice of the filing of the said order in the office of the fiscal officer. When a final determination has been reached, if the determination is in favor of the complainant and involves or relates to the rate of wages paid on such public work, the complainant or any other person affected may within three months after the service of notice of the filing of said final order institute an action against the person or corporation found violating this act for the recovery of the difference between the sum actually paid and the amount which should have been paid as determined by said final order, from and after the date of the filing of said verified complaint or of filing report of investigation made on his own initiative with the fiscal officer as hereinbefore provided.” (Italics supplied.)

In his answer to the original petition herein respondent alleged that the work provided by the Board of Education of the City of Kingston on Public School No. 8 was performed by regular civil service employees of the said Board of Education. Such civil service employees were apparently classified as maintenance workers, and it is charged that they performed the work in question at wages below the prevailing rate of wages paid to workmen and mechanics in the same locality. The respondent also alleged that the complainants herein were not persons interested within the meaning of section 220 of the Labor Law and therefore had no status to bring the proceeding. The decision of the respondent was sustained by the Special Term, and hence the factual merits of the proceeding were never explored. The sole question before us is whether the term “ person interested” has been correctly construed. The statute itself is devoid of definition on this subject.

I am inclined to the view that the statute in this aspect has been too narrowly' construed by the respondent and the Special Term. Obviously section 220 of the Labor Law constitutes a statute of broad public policy and interest and it seems rather unreasonable to believe that the Legislature intended to foreclose the right of any person whose economic status and livelihood might be jeopardized to question the failure of its application by the public authorities. Plainly the statute is remedial in character and hence it is almost axiomatic that it should be liberally construed. If a demand for its enforcement is to be limited to those who have accepted work on public projects at substandard wages there is a clear danger that the public policy inherent in the statute may not be heeded, and this danger will exist despite the fact that the statute itself provides specifically that the receipt of substandard wages by an employee is not to constitute a waiver (subds., 8-a, 8-b). There is a reasonable probability at least that if a workman accepts substandard wages in the first instance he is not apt to complain later; or at least there is a probability that some workmen and employers may connive to evade the statute and thus injure the interests of other workers.

There is a paucity of authority in this State on the precise issue of interpretation involved here, although it was held in the case of People ex rel. O’Brien v. Van Wyck (27 Misc. 439) that a person not employed on a public works project had a right to compel a fiscal officer to investigate and establish prevailing rates of wages.

Campbell v. City of New York (291 N. Y. 461) is cited to sustain the decision herein but in our view the issue involved here was not passed upon in that case.

Under similar, though not identical statutes, the courts of some sister States have sustained the standing of a union to bring a proceeding in the nature of the one before us (Denver Bldg. Constr. Trades Council v. Vail, 103 Col. 364; Industrial Comm. v. Colorado State Federation of Labor, 107 Col. 206; El Paso Bldg. & Constr. Trades Council v. Texas Highway Comm., 231 S. W. 2d 533 [Tex.], rev. on other grounds sub nom. Texas Highway Comm. v. El Paso Bldg. & Constr. Trades Council, 149 Tex. 457; Carpenters Local No. 1650 v. City of Lexington, 248 S. W. 2d 407 [Ky.]). I think that some of the language used by the court in the first Colorado case cited might well apply here. The court there said (p. 369): “ No single workman who hopes or desires to be employed on one of these projects could be expected to go to the trouble and expense of bringing an action individually. In the light of the practical situation, and in view of the obvious intent of the General Assembly, we hold that the trades council has a sufficient interest in the subject matter to enable it to institute the proceedings in the case at bar.” This language accords with the basic fundamental rules of statutory construction that words are understood to have their common and ordinary meaning unless a clear indication to the contrary appears, and it would certainly seem that working men, or those representing them, have a concern in a project where others are employed for less than the prevailing rate of wages for the same type of work in the locality.

As against this reasoning there is some difficulty in reconciling the statutory language between a person interested and a person affected. It may be noted from the statute as already quoted that when a final determination has been reached, if the determination is in favor of the complainant and involves the rate of wages paid, the complainant or any other person affected may institute an action against the person or corporation violating the act for the recovery of the difference between the sum actually paid and the amount that should have been paid. Although the term “ interested person” may be, and I think should be, broadly and liberally construed, for obvious reasons the same broad construction cannot be applied to the .term “ person affected.” However this presents no insuperable obstacle to giving the term “ person interested ” a liberal construction. Since the Legislature itself has made a distinction in language that distinction may be justly given effect. Any person interested may bring the proceeding but only those persons affected as employees may recover the difference between the wages paid and those which should have been paid. This construction does no violence to the language of the statute as I read it.

It is urged that the question is moot. It may be so far as the actual question of wages is concerned because perhaps no one will bring an action for the payment thereof, but the principle certainly is not moot. It involves a question of such paramount public importance that the issue should not be discarded on that ground. As I have heretofore indicated the real merits of the controversy have never been factually explored and decision is limited to the narrow issue stated. I think the petitioners-appellants were interested parties within the meaning of the statute, and that the order should be reversed on the law.

Order affirmed, with $10 costs.

Coon aud G-ibson, JJ., concur with Halpern, J.; Foster, P. J.. dissents in an opinion, in which Bergan, J., concurs.