Parallel Plumbing & Heating Co. v. Goldin

Determination of respondent Comptroller of the City of New York, made April 23, 1976, unanimously modified, on the law, by annulling that portion thereof concerning the required ratio of journeymen to apprentices, and remanding the same for further fact finding in respect thereof, 780 and otherwise confirmed, without costs and without disbursements. Petitioner, awardee of two contracts by the city for plumbing in two firehouses, had been the subject of complaints by its employees, claiming violations of the contracts’ prevailing wage rate. After audit by respondent’s office of petitioner’s records, there was a hearing to determine whether petitioner had violated section 220 of the Labor Law by failure to pay prevailing rates, to pursue prevailing practices, and to confer appropriate supplemental benefits, and, in addition, "to maintain the true ratio of apprentices to journeymen.” As to the claims for wages and supplemental benefits it was found, on substantial competent evidence, that there had been underpayment by $29,833.05 under the two contracts. The Comptroller adopted the findings and recommendations of the hearing officer. However, the finding in respect of ratio of journeymen to apprentices was not bottomed on such evidence, nor is the basis therefor indicated by the hearing officer. Basically, the issue to be determined by the hearing officer was the contradiction between petitioner’s records and the testimony of its employees as to hours worked and wages paid. It was the function of the Comptroller and his hearing officer to determine where the truth lay. (See Matter of Stork Rest. v Boland, 282 NY 256, 267; Matter of Burke v Bromberger, 300 NY 248, 250.) As to the matter of the journeyman-apprentice ratio, respondent has conceded that remand is required for the reason stated. Concur—Lupiano, J. P., Capozzoli, Nunez and Markewich, JJ.