Charter school facility projects satisfy the contract prong of the Matter of Erie County Indus. Dev. Agency v Roberts ( 94 AD2d 532, affd for reasons stated below 63 NY2d 810) prevailing wage law test. ( Campaign for Fiscal Equity v State of New York, 100 NY2d 893; Matter of Pyramid Co. of Onondaga v New York State Dept. of Labor, 223 AD2d 285; United Bhd. of Carpenters Joiners, Local 747 v New York State Dept. of Labor, 291 AD2d 781; Matter ofOrens v Novello, 99 NY2d 180; ELRAC, Inc. v Masara, 96 NY2d 847; Finger Lakes Racing Assn. v New York State Racing Wagering Bd., 45 NY2d 471; United States v Craft, 535 US 274; Matter of Oswald N., 87 NY2d 98; Matter of Stephens Rankin vHartnett, 160 AD2d 1201; Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d 279.) Couch White, LLP, Albany ( James J. Barriere, Michael T. Wallender and Nathan R. Sabourin of counsel), for New York Charter School Association and others, respondents.
The Commissioner also indicates that numerical data could conceivably be relevant to show that a particular trade does not perform any of the work in question. Courts have consistently held that the Commissioner may rely on collective bargaining agreements in making trade classifications ( see e.g. Matter of Otis E. Serv. v. Hudacs, 185 AD2d 483, 485 [3d Dept 1992]; Matter of Sierra Telcom Servs. v. Hartnett, 174 AD2d 279, 283 [3d Dept 1992], appeal dismissed 79 NY2d 1039, lv denied 80 NY2d 757, cert denied 507 US 972; Matter of Naftilos Painting Sandblasting v. Hartnett, 173 AD2d 964, 966 [3d Dept 1991]). The Commissioner's use of collective bargaining agreements to classify work is consistent with the 1983 amendments to section 220 of the Labor Law, which authorized the Department to rely on collective bargaining agreements rather than survey data to determine prevailing wage rates and supplements.
Decided September 15, 1992 Appeal from (3d Dept: 174 A.D.2d 279) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED
Decided September 15, 1992 Appeal from (3d Dept: 174 A.D.2d 279) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED
Decided May 7, 1992 Appeal from (3d Dept: 174 A.D.2d 279) APPEALS ON CONSTITUTIONAL GROUNDS
Decided May 7, 1992 Appeal from (3d Dept: 174 A.D.2d 279) APPEALS ON CONSTITUTIONAL GROUNDS
We have held that "the 1983 amendments place the burden on employers who contest prevailing wage rates" (Matter of Liquid Asphalt Distribs. Assn. v. Roberts, 116 A.D.2d at 298, 501 N.Y.S.2d 483 ; see Matter of Lantry v. State of New York, 12 A.D.3d at 866, 785 N.Y.S.2d 758 ), and we discern no reason to depart from that holding. With regard to petitioner's constitutional argument, we previously have rejected constitutional challenges to the relevant provisions of the statute (see Matter of Sierra Telcom Servs. v. Hartnett, 174 A.D.2d 279, 285, 579 N.Y.S.2d 753 [1992], appeal dismissed 79 N.Y.2d 1039, 584 N.Y.S.2d 448, 594 N.E.2d 942 [1992], lv. denied 80 N.Y.2d 757, 588 N.Y.S.2d 825, 602 N.E.2d 233 [1992], cert. denied 507 U.S. 972, 113 S.Ct. 1413, 122 L.Ed.2d 784 [1993] ; see also Matter of Lantry v. State of New York, 12 A.D.3d at 866 n., 785 N.Y.S.2d 758 ; Matter of General Elec. Co. v. New York State Dept. of Labor, 154 A.D.2d 117, 121, 551 N.Y.S.2d 966 [1990], affd. 76 N.Y.2d 946, 563 N.Y.S.2d 764, 565 N.E.2d 513 [1990] ). Next, we consider petitioner's challenge to the method used by respondent in his determination, which will be upheld unless it is arbitrary and capricious or irrational (see Matter of Lantry v. State of New York, 6 N.Y.3d at 52, 810 N.Y.S.2d 729, 844 N.E.2d 276 ; Matter of New York Tel. Co. v. New State Dept. of Labor, 272 A.D.2d at 744, 707 N.Y.S.2d 715 ).
ecific procedure for [respondent] to use in evaluating the appropriate trade or occupation to assign to particular work" ( Matter of Lantry v State of New York, 6 NY3d 49, 55 [citation omitted]). The court went on to point out that "it is well settled that 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"'" ( id. [citations omitted]; see Matter of Otis E. Serv. v Hudacs, supra at 484-485; Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117, 120, affd 76 NY2d 946). Moreover, it is well settled that respondent may rely on collective bargaining agreements in making trade classifications ( see Matter of Lantry v State of New York, supra at 56; Matter of New York Tel. Co. v New York State Dept. of Labor, 272 AD2d 741, 744, lv denied 95 NY2d 763; Matter of Otis E. Serv. v Hudacs, supra; Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d 279, 283, appeal dismissed 79 NY2d 1039, lv denied 80 NY2d 757, cert.denied 507 US 972; Matter of Naftilos Painting Sandblasting v Hartnett, 173 AD2d 964, 966). The record reveals that the Department considered a number of factors in classifying a particular task into the appropriate trade or occupation, including the specific nature of the work, pertinent collective bargaining agreements, jurisdictional agreements, historical practice and past Department recognition. At the hearing in this matter, senior public work wage investigators established that the Department has for some time classified work on plumbing contracts, with a few exceptions not relevant here, as plumbing work.
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; see Matter of New York Tel. Co. v. New YorkState Dept. of Labor, 272 AD2d 741, 744, lv denied 95 NY2d 763; Matter of Sierra Telcom Servs. v. Hartnett, 174 AD2d 279, 283-284, appeal dismissed 79 NY2d 1039, lv denied 80 NY2d 756, 757, cert denied 507 US 972). As we have previously explained, the 1983 amendments to Labor Law § 220 reflect the Legislature's determination that collectively bargained rates "were invariably equivalent" to prevailing wage rates determined by the Department through extensive surveying ( see Matter of Liquid Asphalt Distribs.
We affirm. As to the classification issue, the case law makes clear that "[c]lassification of trades or occupations is a matter within the expertise of the Department and determinations with respect thereto should not be disturbed in the absence of a clear showing that a classification does not reflect `"the nature of the work actually performed"'" (Matter of Sierra Telcom Servs. v. Hartnett, 174 A.D.2d 279, 283, appeal dismissed 79 N.Y.2d 1039, lv denied 80 N.Y.2d 756, cert denied 507 U.S. 972, quoting Matter of General Elec. Co. v. New York State Dept. of Labor, 154 A.D.2d 117, 120, affd 76 N.Y.2d 946, quoting Matter of Kelly v. Beame, 15 N.Y.2d 103, 109; see, Matter of Marangos Constr. Corp. v. New York State Dept. of Labor, 216 A.D.2d 758, 758-759; Matter of Agency Constr. Corp. v. Hudacs, 205 A.D.2d 980, 982-983; Matter of Otis E. Serv. v. Hudacs, 185 A.D.2d 483, 484-485). Petitioners failed to make such a showing here.