Associated Builders & Contractors, Inc. v. City of Rochester

Upon reargument, judgment modified, on the law, to declare Ordinance 82-450 constitutional and, as modified, affirmed, without costs. Memorandum: Notwithstanding the decision in Matter of Action Elec. Contrs. Co. [698] v Goldin (64 NY2d 213), we conclude that Ordinance 82-450 is constitutional and does not conflict with General Municipal Law § 103 (see, Matter of Skyway Roofing v County of Rensselaer, 79 AD2d 1078, lv denied 53 NY2d 606). In Action Elec, (supra, p 218), the court held that the requirement of providing supplemental fringe benefits under Labor Law § 220 (3) could be met when "employees are supplied with the cash equivalent of the cost of obtaining the prevailing benefits or by providing an equivalent benefits plan, or by a combination of benefits and cash equal to the cost of the prevailing benefits”. Unlike the contractor in Action Elec, which was required to pay fringe benefits under Labor Law § 220 (3), the contractors here cannot, by substituting cash payments or contributions of equivalent value, satisfy the ordinance requirement that they maintain registered apprenticeship training programs. Nor, again as distinguished from Action Elec., can it be said that allowing cash payments in lieu of maintaining the training programs would be consistent with the enunciated policies underlying the legislation pertaining to the apprentice training programs or further the purpose thereof (see, Labor Law § 220 [3-e]; 1967 NY Legis Ann, at 191, 192; Labor Law § 810). Thus, plaintiffs, as contrasted with the plaintiff in Action Elec, (which could comply with section 220 [3] by making equivalent cash payments), cannot complain that by operation of the ordinance they are being arbitrarily eliminated from the class of prospective bidders or that they are the objects of unfair discriminatory treatment in the public bidding process in contravention of General Municipal Law §103. Plaintiffs contend that, as in Action Elec, (supra), cash payments should be accepted as the equivalent of the training programs but no plausible suggestion has been advanced as to how, to whom, or in what amounts such payments should be made, or in what respect the payments could be deemed an equivalent substitute. Paying all apprentices or novices at journeyman rates (the only performance suggested by plaintiffs as a substitute for the apprenticeship programs) for several reasons is no answer. First, if overpaying novice workers is accepted as a substitute for training programs, the particular trade, the pool of young potential trainees, and the community, would have nothing in place of the programs from which they could otherwise benefit — no programs and no equivalent replacement. Second, because under the law a contractor is not bound to hire any number of novices or apprentices (see, Labor Law § 220 [3-e]) there would be nothing [699] to prevent a contractor which has no training program from hiring only a token number of novices (thus making a minimal substitute cash payment) or, for that matter, from hiring no novices and making no substitute payment at all. Third, from the standpoint of the individual novice worker, overpaying him is obviously not the equivalent of training him in a registered program. In sum, the value of the training program to novices who might avail themselves of it, the benefit of programs to the particular trade and to the community, and the cost of maintaining the programs to the contractors are simply incapable of being translated into dollar equivalents like the fringe benefit supplements in Action Elec. There is. a further reason why the court’s holding with respect to the fringe benefit type of supplement in Action Elec, (supra) does not compel a different result here. The policy considerations underlying the requirement that all contractors pay fringe benefits (see, Labor Law § 220 [3]; Matter of Action Elec. Contrs. Co. v Goldin, supra) are different from those underlying the legislation pertaining to apprenticeship training programs (see, Labor Law § 220 [3-e]; § 810) and the enactment of the ordinance. In Action Elec., in deciding that the cash equivalent of fringe benefits could constitute compliance with Labor Law § 220 (3), the court, noting that the statute was ambiguous on its face, examined the legislative history for evidence of legislative intent and concluded that the purpose was to " 'eliminate unfair competitive bidding on public work contracts * * * [by] [t]he inclusion of fringe benefits in the prevailing rate of wage’ ” (Matter of Action Elec. Contrs. Co. v Goldin, supra, p 222, quoting Memorandum in Support of Bill by Commissioner of Labor, Mar. 29, 1956, at 1) and to equalize contractors’ minimum labor costs (Matter of Action Elec. Contrs. Co. v Goldin, supra, p 222). This purpose is fulfilled when a contractor pays in cash the cost of the supplemental benefits. In contrast, the purpose of legislation pertaining to apprenticeship programs is not to equalize contractors’ labor costs as in Action Elec, (supra), but to "provide qualified, skilled craftsmen to meet future needs in private and public construction” (1967 NY Legis Ann, at 191) and to foster "sound apprenticeship training standards and to encourage industry and labor to institute training programs” (Labor Law § 810; see, Matter of Skyway Roofing v County of Rensselaer, supra, p 1079). When the training of apprentices is curtailed (the inevitable result of invalidating the ordinance on the authority of Action Elec.), the legislative purpose behind the training programs of [700] providing qualified skilled craftsmen for future needs is not met. All concur, except Doerr, J., who dissents and votes to declare Ordinance 82-450 invalid, in accordance with the following memorandum.