THE COMPTROLLER OF THE CITY OF NEW YORK
x
In the matter of the Complaint of
DISTRICT COUNCIL OF CARPENTERS OF NEW YORK
CITY AND VICINITY OF THE UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA
NOTICE
OF
FILING
Against
CITY OF NEW YORK OFFICE OF LABOR RELATIONS,
For a determination of the prevailing rate of wage and
supplements in accordance with New York State Labor Law
Article Eight.
----------------------------------------------------------x
PLEASE TAKE NOTICE that annexed hereto is a true copy of a Determination and
Order that was duly filed on June 22, 2015 in the Office of the Comptroller in the matter of a
complaint for the fixation of compensation of Carpenter (92005), Supervisor Carpenter (92071),
Ship Carpenter (92025), Supervisor Ship Carpenter (92073), Dockbuilder (92010), Supervisor
Dockbuilder (92072) and Rigger (90734).
Scott M. Stringer
Comptroller of the City of New York
One Centre Street
New York, N10007
By:__
W yl lKinach P. E.
Director of Classifications
Bureau of Labor Law
Tel: (212) 669-2203
Fax: (212) 815-8584
TO: ROBERTW. LINN
Commissioner
City of New York Office of Labor Relations
40 Rector Street, 4th Floor
New York, NY 10006
WILLIAM LACEY
Director of Civil Service Affairs
New York City District Council of Carpenters, UBCJA
395 Hudson Street, 91h Floor
New York, New York 10014
CITY OF NEW YORK
OFFICE OF THE COMPTROLLER
In the matter of
COMPTROLLER, EX REL. THE DISTRICT
COUNCIL OF CARPENTERS OF NEW
YORK CITY AND VICINITY OF THE
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA
OATH Index No. 2445/2015
Petitioner
-againstOFFICE OF LABOR RELATIONS
Respondent
DETERMINATION AND ORDER
WHEREAS:
The Comptroller's Bureau of Labor Law ("Petitioner") brought proceedings against the City
of New York Office of Labor Relations, pursuant to a complaint filed by the District Council of
Carpenters of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of
America ("Union") under Labor Law § 220(8), to fix the prevailing wages and supplemental benefits
for employees of the City of New York ("City") serving in the civil service titles of Carpenter,
Supervisor Carpenter, Ship Carpenter, Supervisor Ship Carpenter, Dockbuilder, Supervisor
Dockbuilder, General Supervisor Dockbuilder, and Rigger, for the period July 1, 2008 to the present.
In 2014, the Honorable Kara J. Miller, Administrative Law Judge ("AU") of the Office of
Administrative Trials and Hearings ("OATH"), conducted a four-day trial, where each party
produced witnesses and documentary evidence, at the conclusion of which the parties stipulated to
the trade classifications for all of the disputed titles except for the Rigger title. The record closed on
January 9, 2015, with the submission of post-trial briefs. ALJ Miller issued a Report and
Recommendation dated March 5, 2015. After the Report and Recommendation were issued, the
Union and Office of Labor Relations submitted additional briefs to the Comptroller.
NOW:
After reviewing ALJ Miller's Report and Recommendation and relevant portions of the record and
exhibits thereto, and due deliberation having been had thereon, pursuant to the powers and duties
vested in me by the Comptroller under Labor Law § 220, et seq., I adopt the findings in the AU
Miller's Report and Recommendation (attached hereto as "Appendix A") and make the following
Order and Determination.
It is hereby Ordered and Determined that.
The prevailing rate of wages and supplements for the civil service titles of Carpenter,
Supervisor Carpenter, Ship Carpenter, and Supervisor Ship Carpenter, during July 1, 2008
through December 31, 2014, are those of the Carpenter and Foreman titles in the collective
bargaining agreement between the District Council of Carpenters of New York City and
Vicinity of the United Brotherhood of Carpenters and Joiners of America and the Building
Contractors Association, Inc. (attached hereto as "Appendix B").
The prevailing rate of wages and supplements for the civil service titles of Dockbuilder
and Supervisor Dockbuilder, during July 1, 2008 through December 31, 2014, are those of
the Dockbuilder and Foreman titles in the collective bargaining agreement between the
District Council of Carpenters of New York City and Vicinity for Dockbuilders Local
Union No. 1456 and the General Contractors Association of New York, Inc. (attached
hereto as "Appendix B").
The prevailing rate of wages and supplements for the civil service title of Rigger, during
July 1, 2008 through December 31, 2014, are those of the Millwright title in the collective
bargaining agreement between the District Council of Carpenters of New York City and
Vicinity of the United Brotherhood of Carpenters and Joiners of America, Millwright Local
740, and the New York City Millwright Contractors Association (attached hereto as
"Appendix B").
Discussion:
Although I have adopted the findings in the OATH Report and Recommendation, I think it
appropriate to supplement ALJ Miller's findings.
First, ALJ Miller found that the determination of applicable wages and supplements to be paid to
those employed in the seven civil service titles was not before the tribunal. Although it is correct
that no determination of the actual calculation of the unpaid wages and supplemental benefits
was before the tribunal, OATH should have addressed the broader issue of the applicable wage
and supplemental benefit rates to be paid to each title.
Second, ALJ Miller also found that the issue of whether employees in the seven civil service
titles should receive overtime after a seven-hour workday, as opposed to an eight-hour workday,
was not properly before the tribunal. Her conclusion was based, at least in part, on the fact that
the issue had already been decided upon by ALJ Fraser in Comptroller v. Office of Labor
Relations, OATH Index No. 254/05 at 6-7 (Feb. 25, 2008). This notwithstanding, OATH should
have addressed the issue in this instance.
Accordingly, it is Further Ordered and Determined that:
Consistent with the relevant collective bargaining agreements and the § 220 Prevailing
Wage Schedule, the City must pay supplemental benefits to civil service Carpenters,
Supervisor Carpenters, Ship Carpenters, Supervisor Ship Carpenters, Dockbuilders,
Supervisor Dockbuilders, and Riggers for each hour worked.
2. The City must pay premium overtime to civil service Carpenters, Supervisor Carpenters,
Ship Carpenters, Supervisor Ship Carpenters, Dockbuilders, Supervisor Dockbuilders, and
Riggers after the eighth hour is worked.
SO DETERMINED AND ORDERED:
Dated:
By:
Kathryn E. Diaz
General Counsel
Office of the Comptroller
of the City of New York
TLA~ I Z I ?- 0 1
E
Office of the Comptroller v. Office of Labor Relations
OATH Index No. 2445/14 (Mar. 5, 2015)
Comptroller's preliminary determination that riggers employed by
the Department of Transportation be paid commensurate with
wages and supplemental benefits of a millwright should be
affirmed.
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
COMPTROLLER, EX REL. THE DISTRICT COUNCIL
OF CARPENTERS OF NEW YORK CITY AND
VICINITY OF THE UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA
Petitioner
-againstOFFICE OF LABOR RELATIONS
Respondent
REPORT AND RECOMMENDATION
KARA J. MILLER, Administrative Law Judge
Petitioner, the New York City Office of the Comptroller ("Comptroller"), brought this
proceeding pursuant to Section 220(8-d) of the Labor Law, for a determination of the prevailing
wages and supplemental benefits to be paid to employees of the City of New York ("City") in
the civil service titles of carpenter, supervisor carpenter, ship carpenter, supervisor ship
carpenter, dockbuilder, supervisor dockbuilder, general supervisor dockbuilder, and rigger, for
the period July 1, 2008, through the present. The proceeding was brought on the complaint of
the District Council of Carpenters of New York City and Vicinity of the United Brotherhood of
Carpenters and Joiners of America ("Union"). The respondent is the Mayor's Office of Labor
Relations ("OLR").
At the conclusion of a four-day trial, where each party produced witnesses and
documentary evidence, the parties stipulated to the trade classifications for all of the disputed
titles except for the rigger title. The sole remaining issue was whether the Comptroller properly
determined that a rigger should be paid wages and supplemental benefits commensurate with a
-2millwright in the private sector. The record closed on January 9, 2015, with the submission of
post-trial briefs. For the reasons below, the Comptroller's preliminary determination regarding
the rigger title should be upheld.
ANALYSIS
Statutory Background
Section 220 of the Labor Law requires the City to pay "laborers, workmen or mechanics"
in its employ the prevailing rate of wages and supplemental benefits. This is defined as the rate
paid in the private sector "for a day's work in the same trade or occupation in the locality" where
the work is performed. Labor Law § 220(3) (Lexis 2014).
The statute requires that collectively bargained rates paid in the private sector be deemed
prevailing, providing that the collective bargaining agreements cover at least 30 percent of the
"workers, laborers or mechanics in the same trade or occupation in the locality where the work is
being performed." Labor Law § 220(5)(a) (Lexis 2014). Only when there are less than 30
percent of private sector unionized employees within the same trade or occupation is the
prevailing wage determined by reference to non-unionized workers. In that case, "the average
wage" paid to non-unionized workers within the same trade or occupation is found to be
prevailing. Id.
Further, while the statute refers to the rates paid in the "same" trade or occupation, courts
have recognized that a comparison may be made to similarly employed workers. See Smith v.
Joseph, 275 A.D. 201, 204 (1st Dep't), aff'd, 300 N.Y. 516 (1949) (fixing prevailing wages of
persons in "comparable" positions); Flannery v. Joseph, 300 N.Y. 149, 152 (1949) (Comptroller
was obligated to determine the prevailing rate of wages paid to those workers whose trade or
occupation was "comparable" to city-employed maintenance workers).
Unions and public employers are required to negotiate in "good faith" and enter into a
written agreement as to the rate of wages and supplemental benefits to be paid to prevailing wage
employees. If negotiations break down, the union is authorized to file a complaint on behalf of
these employees with the Comptroller. The Comptroller is then mandated to conduct an
investigation to determine the prevailing rate of wages and supplemental benefits due the
workers, and to hold a hearing in the matter after conducting its investigation, but prior to
making any order or determination. Labor Law §§ 220(8-d); 220(8) (Lexis 2014).
-3Procedural Background
Consent determinations from July 1, 2005, through June 30, 2008, previously established
the prevailing rates for City employees in the civil service titles of carpenter, supervisor
carpenter, ship carpenter, supervisor ship carpenter, dockbuilder, supervisor dockbuilder, general
supervisor dockbuilder, and rigger (Pet. Exs. 25).1 After the determinations expired on June 30,
2008, the workers have continued to be paid in accordance with the rates in those determinations
jr. 48-49, 331). On November 5, 2008, the Union filed four complaints with the Comptroller.
The Union requested that the Comptroller investigate and issue a preliminary determination
setting forth the prevailing collective bargaining agreements and the prevailing wages and
supplements for the titles at issue (Pet. Ex. 1).
In response to the complaints, the Comptroller conducted an investigation into the actual
work performed by the civil service titles. In February and March 2010, the Comptroller issued
its preliminary determination (Pet. Exs. 29-32; Tr. 152-54). The Union and OLR discussed the
prevailing rates for the titles, but have been unable to reach an agreement (Tr. 331, 334-35). On
May 14, 2014, the Comptroller filed a petition for a hearing to determine the prevailing rates of
wages and supplements for the eight civil service titles (ALJ Ex. 2). In its amended answer
dated August 13, 2014, OLR asserted that the Comptroller failed to establish it had conducted an
investigation in accordance with Labor Law section 220, and that the Comptroller failed to
include "relevant aspects" of the prevailing wage in the petition. OLR further contended that the
Comptroller failed to establish that the proposed collective bargaining agreements covered at
least 30 percent of the comparable private sector workers for the disputed titles (ALJ Ex. 3).
At the close of trial, the parties stipulated to the trade classifications for six of the civil
service titles .2 The parties agreed that those employed in the civil service titles of carpenter,
supervisor carpenter, ship carpenter, and supervisor ship carpenter should be classified in the
trade of building commercial carpenter. The parties also agreed that the workers employed in the
civil service title of dockbuilder and supervisor dockbuilder should be classified in the trade of
Administrative Law Jud-e Charles Fraser issued a report and recommendation involving the same parties on
February 28, 2005. Comptroller v. Office of Labor Relations, OATH Index No. 254/05 (Feb. 28, 2005). After the
report and recommendation was issued, the parties entered into a consent determination which established the
prevailing wages and supplemental benefits for carpenters and supervisor carpenters for July 1, 2000, through June
30, 2005.
2
The Comptroller withdrew its request for a determination of the prevailing wages and supplements for the general
supervisor dockbuilder title since its investigation revealed that no workers were employed in the title during the
relevant time period jr. 46).
-4dockbuilder - pile driver (Tr. 588-95). Thus, the issue of prevailing wages and supplements for
these titles was not adjudicated.
The only disputed classification is that of workers employed in the civil service title of
rigger. The Comptroller and the Union agree that the work performed by a rigger is comparable
to that of a millwright in the private sector. OLR opposes this match, but does not put forth an
alternate match.
The Proof at Trial
The Comptroller presented the testimony of Wasyl Kinach, the Director of Classifications
in the Comptroller's Bureau of Labor Law Jr. 39-40). Additionally, the Comptroller submitted
documentary evidence, including the City's job specifications for the rigger title and the federal
job specifications for the rigger and millwright titles (Pet. Exs. 13, 28), surveys by two riggers
and their manager (Pet. Exs. 14, 15), and the relevant collective bargaining agreements for the
millwright title, the Independent Millwright Agreement between New York City Millwright
Contractors Association and the District Council of New York City and Vicinity of the United
Brotherhood of Carpenters and Joiners of America and Millwright Local 740 (Pet. Exs. 25, 26).
The Union presented the testimony of William Lacey, who has been employed by the
New York City District Council of Carpenters for 15 years and is currently the Director of Civil
Service Carpenters Jr. 3 22-24), and of Anthony Santapaola, who has been employed as a rigger
by the New York City Department of Transportation ("DOT") at the Staten Island Ferry since
August 2006 Jr. 416-17). The Union also submitted documentary evidence, including
correspondence to the Comptroller (Union Exs. 2-11) and photographs of riggers performing
their work tasks (Union Exs. 16, 17).
OLR presented the testimony of Robert Scamell, who has been the Deputy Director of
Maintenance and Repair for DOT at the Staten Island Ferry since 2010 Jr. 494, 543, 560). Mr.
Scamell supervises all of the trade workers, including the riggers, working at the terminals and
on the boats at the Staten Island Ferry Jr. 494-95; 5 50-5 1). The only documentary evidence
submitted by OLR was the section 220 prevailing wage schedule from July 1, 2013, through
June 30, 2014 (Resp. Ex. A).
-5-
V
Job Duties of a Rigger
There are seven riggers, including one supervisor, employed by the City and they all
work for DOT at the Staten Island Ferry (Lacey: Tr. 347, 364; Santapaola: Tr. 418). The City's
job specification for the title of rigger provides the following:
General Statement of Duties and Responsibilities
Under general supervision, uses and handles rigging equipment
and gear in moving, lashing, and securing of heavy objects such as
machines, and/or members of structures; performs related work.
Examples of Typical Tasks
Arranges to raise and lower in a safe manner all types of materials,
machines, and/or equipment to and from working platforms,
trucks, streets, floor and other levels in structures or vessels.
Inspects, tests and maintains all types of rigging equipment such as
planks, fibre ropes, wire ropes, chains, swing scaffolds, etc.
Rigs all types of working platforms, swing scaffolds and bosun's
chairs.
Rigs and uses all types of hoisting equipment (except cranes and
the like) such as shear legs, catheads, ginpoles and similar
equipment.
Uses jacks, rollers and skids in the moving of heavy equipment and
stwctural members.
Splices wire rope; splices and ties knots in fibre ropes.
Keeps work records as required.
(Pet. Ex. 13). Qualification requirements for the job include five years of recent, satisfactory,
full-time, paid experience as a rigger (Pet. Ex. 13).
Questionnaires filled out by two riggers, Anthony Santapaola, the Union's witness, and
Raymond Corbett, who has worked as a rigger for 21 years, indicated that they perform all of the
tasks listed in the City's job specification. Both riggers also provided that they perform several
additional tasks such as inspecting and maintaining safety equipment on boats, replacing cables,
and making repairs to ferry terminal slips and performing preventative maintenance (Pet. Ex.
14). A questionnaire filled out by Mr. Scamell indicated that riggers perform most of the listed
tasks (Pet. Ex. 15). Mr. Lacey testified that, based on his knowledge and observation of the
I
riggers' work, the job specification accurately reflects the duties and responsibilities of a rigger
at the Staten Island Ferry (Tr. 381).
The principal task of a rigger is to hoist and move heavy objects and machines, including
pumps, motors, engine parts, boilers, generators, propulsion transformers and motors, and
transfer bridges (Lacey: Tr. 364; Santapaola: Tr. 419-25; Scamell: Tr. 495-96; Kinach: Tr. 23132; Union Exs. 16, 17). For example, riggers hoist and move large machinery from the ferry
vessels into the ferry maintenance facility when the machinery needs to be rebuilt by the
machinists. After the machinery has been repaired, the riggers move it back (Santapaola: Tr.
422). The riggers move objects that weigh anywhere from 70 pounds to 97 tons and spend
approximately 60 percent of their time rigging and moving equipment (Santapaola: Tr. 420-22;
Scamell: Tr. 496).
In order to rig and move machinery and equipment, riggers must assemble, disassemble,
and maintain their own equipment such as chain falls, hoist slings, slips, shackles, A-frames, and
any wires and lines they use for lifting (Santapaola: Tr. 419, 425-26; Scamell: Tr. 499-501, 504,
540-41, 546). As the same system is not used to move each object, the riggers must evaluate and
determine the proper size chain falls, slings, and shackles needed to move the objects Jr. 419,
426). They also inspect the rigging equipment to check for kinks, breaks, or chafing Jr. 446).
The riggers' duties include maintaining the ferry slips at the St. George, Whitehall, and
City Island Terminals, where they change the cables in the slips and ensure that the upper and
lower bridges that attach to the ferries are functioning properly (Santapaola: Tr. 4 19-20; Scamell:
Tr. 495-97; Pet. Ex. 14). They also maintain the rescue equipment, such as rescue boats and life
rings, on the ferries Jr. 495-96; Pet. Ex. 14). Mr. Scamell estimated that riggers spend
approximately ten to fifteen percent of their time on each of the maintenance tasks and about ten
percent of their time preparing materials used on the boats, including making the lines used to tie
off the boats Jr. 496-98).
If a ferry is damaged, riggers assist other trades with ship repairs. For example, riggers
work with boilermakers to replace damaged steel plates on the vessels by rigging the old steel off
the boat, swinging the new steel into place, and holding it in position for the boilermakers to
weld (Santapaola: Tr. 433-34, 47 1-72; Scamell: Tr. 568, 576-77). They also work with
boilermakers to construct scaffolding on the side of a vessel by holding the scaffolding in place
while it is attached (Santapaola: Tr. 433-34; Scamell: Tr. 568, 574).
-7Mr. Santapaola testified that riggers assist other trades almost daily with breaking down
and reassembling broken machinery that needs to be repaired or replaced (Santapaola: Tr. 42325, 46 1-62, 466-67). For example, if a propulsion motor or propulsion generator needs to be
repaired or replaced the riggers are involved in breaking down the equipment into pieces so they
can move the machine out of the vessel. After the repairs are made the riggers return the
machine to the vessel in pieces and assist in the reassembly so that it functions as a whole again.
Similarly, if a boiler needs to be replaced, the riggers assist in assembling the new boiler by
moving the sections from the ferry maintenance facility to the boiler room (Santapaola: Tr. 42225, 427-28; 441-42; Scamell: Tr. 518-21; Union Ex. 17).
Mr. Lacey confirmed that he has observed riggers disassembling and assembling
machinery Jr. 399). Similarly, Mr. Scamell testified that riggers assist other trades in
assembling and disassembling large pieces of machinery that must be moved in parts Jr. 54647). He further testified that a large piece of machinery cannot be assembled or disassembled
without a rigger to take the weight off the machinery Jr. 547-48). According to Mr. Santapaola,
a large piece of machinery cannot be rebuilt without the riggers' assistance (Tr. 422).
Riggers also assist other trades with setting, aligning, shimming, and securing machinery
(Santapaola: Tr. 428-32, 462; Scamell: Tr. 504- 539, 547-48; Kinach: Tr. 236). For example, the
riggers will move a machine to its foundation where they align it by catching the first bolt so that
the machine is in its place and the machinists can secure the bolts Jr. 429, 470-7 1). They are
sometimes involved in the design of the chain fall and jib system by indicating the correct
location for the attachment points to hang the chain falls (Santapaola: Tr. 437-38; Scamell: Tr.
566-67, 576). Further, they rig and remove the covers on heat exchangers so other trades can
clean the coils (Santapaola: Tr. 454-55). Riggers assist crane operators with moving equipment
on and off the boats. They also assist with removing sections of cranes and with maintaining and
repairing Department trucks and cherry pickers by moving parts of the vehicles (Santapaola: Tr.
454-58; Scamell: Tr. 529-31, 575).
Job Duties of a Millwright
Mr. Kinach testified that a millwright is a "machine builder" (Tr. 231, 253). He further
testified that millwrights erect and put machines together, take the machines apart, and hoist and
rig the components of larger machines Jr. 231). The Independent Millwright Agreement from
July 1, 2006, to June 30, 2011, provides the following in relation to the tasks of a millwright:
Millwright and Machinery Erectors work on all types of machinery
and equipment used in all types of industries. Their work includes,
but is not limited to, the following: unloading, hoisting, rigging,
skidding, moving, dismantling, demolition, erecting, machining,
assembling, disassemble and repairing. They shall do all layout,
positioning, aligning, leveling, grouting and securing of all
machinery and equipment and this may be done in any manner
including optical, laser and wire. They shall also check rotation by
power and run in and start up of equipment. All running and
testing of equipment shall be by the Millwright until accepted by
the owner in writing.
(Pet. Ex. 25 at 2). Millwrights work on a wide range of equipment and machinery, including
pumps, heat exchangers, variable drives, chains, engines, motors, generators, cranes, and crane
trucks (Id. at 3).
The Independent Millwright Agreement from July 1, 2011, to June 30, 2017, similarly
provides that the work of a millwright includes, but is not limited to, the following:
the unloading, hoisting, rigging by any means, (including
signaling) transferring, moving, cleaning, disassembling,
assembling, welding, burning, erecting, demolition, calibrating,
aligning, machining, starting-up, checking for rotation and testing,
adjusting, repairing, and the maintaining of all machinery and
equipment. . . . This will include all layouts, positioning, aligning,
leveling, grouting and securing of machinery and equipment.
(Pet. Ex. 26 at 2). Millwrights also set machinery and equipment such as engines, motors,
variable drives, and truck cranes (Id. at 3).
Comparability
Mr. Kinach testified that a millwright does the same rigging work as a rigger but that a
millwright's tasks are broader Jr. 237). According to Mr. Kinach, there are two job duties
under the City's job specification for a rigger which also pertain to a millwright: handling of
rigging equipment and moving, lashing, and securing heavy objects such as machines and
members of structures Jr. 143-44). Welding, demolishing, calibrating, rotating, testing, and
-9repairing machinery are not included in the City's title specifications for a rigger, but these are
tasks of a millwright jr. 234-35).
Mr. Lacey testified that a rigger does not perform all of the tasks of a millwright jr.
399). But, he has observed millwrights while they were working and the rigging and placing of
machinery by millwrights is similar to the work done by riggers at the Staten Island Ferry jr.
365-66).
According to Mr. Santapaola, riggers perform the following tasks on many types of
machinery and equipment similar to a millwright: unloading, hoisting, rigging, skidding, moving,
dismantling, erecting, assembling, disassembling, repairing, laying out, positioning, aligning,
leveling, securing, transferring, cleaning, and adjusting. Riggers also similarly maintain
machinery and equipment and their work includes tasks relating to heat exchangers and cranes
and splicing ropes and cables Jr. 450-55). Mr. Santapaola testified that riggers do not "check
rotation by power and run in and start up of equipment" or run and test equipment jr. 473, 476;
Pet. Ex. 25). He later clarified, however, that riggers run and test the bridges after they repair
cables in the ferry terminal slips to ensure that the bridges raise and lower properly jr. 476-77).
Mr. Scamell confirmed that similar to a millwright, a rigger's tasks include unloading,
hoisting, rigging, transferring, moving, cleaning, disassembling and assembling of their
equipment such as an A-frame, and maintaining their own equipment and machinery such as
chain falls and hoist slings (Tr. 499-504). Like millwrights, riggers also set engines, motors,
variable drives, and truck cranes on their foundations jr. 505-08).
Unlike riggers, millwrights do not work on vessels, ships, or at the Staten Island Ferry
Terminal (Kinach: Tr. 232-33; Santapaola: Tr. 465-66). While the Independent Millwright
Agreements do not explicitly state that a millwright may work on a ferry vessel or at a dock,
ferry terminal, or pier, it provides that the list of locations where a millwright's work may be
found is not all inclusive (Pet. Exs. 25, 26).
The Comptroller also submitted the federal classifications for the rigger and millwright
titles, which include the tasks and duties and tools and technology used by the trades jr. 147;
Pet. Ex. 28). Mr. Kinach testified that the Comptroller refers to these federal guidelines during
an investigation to ensure that the City's title specifications reflect the same standards jr. 14748, 245-46). The federal classification provides that a rigger's tasks include aligning, leveling,
and anchoring machinery, manipulating rigging lines and hoists, and pulling gear to move or
- 10 support materials such as heavy equipment (Pet. Ex. 28). Mr. Scamell testified that the only
tasks a rigger employed by DOT would perform as compared to the federal guidelines for a
millwright are limited to: positioning parts; aligning machines and equipment by using hoists and
jacks; assembling the equipment they use for rigging; signaling crane operators to lower basic
assembly units to bedplates and aligning units to the centerline; and moving machinery and
equipment by using hoists, dollies, rollers, and trucks (Tr. 540-42).
Applicability
As set forth above, Labor Law Section 220(3) requires that workers employed on public
works be paid the prevailing rate of wages. The prevailing rate is defined as:
the rate of wage paid in the locality . . . by virtue of collective
bargaining agreements between bona fide labor organizations and
employers of the private sector, performing public or private work
provided that said employers employ at least thirty per centum of
workers, laborers or mechanics in the same trade or occupation in
the locality where the work is being performed.
Labor Law § 220(5)(a) (Lexis 2014). The "locality" is defined as "areas of the state described
and defined for a trade or occupation in the current collective bargaining agreements between
bona fide labor organizations and employers of the private sector, performing public and private
work." Labor Law § 220 (5)(d) (Lexis 2014). Here, the Independent Millwright Agreements
cover employees within the five boroughs of New York City. The Staten Island Ferry Terminal
and the other terminals where the riggers work are all located in the City.
OLR provided in its amended answer that the Comptroller failed to establish that the
Union's private sector agreements cover at least 30 percent of workers in the same trade (AU
Ex. 3). Labor Law Section 220 provides that an employer may contest the fiscal officer's
determination of the prevailing wage and supplements, but "[the employer must allege and
prove by competent evidence, that the actual percentage of workers, laborers or mechanics is
below the required thirty per centum . . . ." Labor Law § 220(6) (Lexis 2014). See also Joint
Industry Bd. v. Schaffer, 205 A.D.2d 310 (1st Dep't 1994) (burden of proof is on employer who
challenges a prevailing wage rate to establish that it does not represent wages paid to 30 percent
of comparable workers in the locality); Liquid Asphalt Distributors Ass'n v. Roberts, 116 A.D.2d
295, 298 (3d Dep't 1986) ("[TIhe 1983 amendments place the burden on employers who contest
-11prevailing wage rates to show that, in fact, less than 30% of the workers in a given locality are
subject to the wage rate adopted.") (citations omitted).
OLR did not present any evidence of the actual percentage of workers covered by the
private sector collective bargaining agreements and has not met its burden in challenging the
Comptroller's determination of the prevailing wage and supplements. Thus, the Comptroller's
determination that the millwrights covered by the Independent Millwright Agreement comprise
30 percent or more of workers in the "same trade or occupation" was unrebutted.
Similarly, there is no evidence to support OLR's claim that the Comptroller had failed to
conduct an adequate investigation. The Comptroller's investigation and preliminary
determination were based upon the City's job specification, the surveys completed by the riggers
and Mr. Scamell, and the relevant collective bargaining agreements (Tr. 226-27). Moreover, it
was undisputed that historically the rigger title has been compared to and paid wages and
supplements commensurate with a millwright in the private sector.
Turning to whether the work of a rigger is comparable to a millwright, the Comptroller
and the Union argue that riggers perform in-title work that is consistent with and comparable to
the tasks performed by a millwright in the private sector. OLR contends that the work performed
by civil service riggers and private sector millwrights is substantially different in "scope,
complexity, and breadth." In support, OLR asserts that a millwright is a "jack of all trades,"
while oversimplifying a rigger's tasks as "strictly to rig items and hold them in place for other
civil service titles at DOT ferries" (Resp. Br. at 20-21). OLR, however, failed to present an
alternate match for the rigger title even though it was given the opportunity to do so.
The controlling legal issue, thus, hinges upon the "actual work" performed by the
workers being compared. See Flannery, v. Joseph, 300 N.Y. 149, 154 (1949) (the "critical"
factor, in determining whether private employees are in the same trade or occupation as publicly
employed workers, is whether "their work differs substantially"); Kelly, v. Beanie, 15 N.Y.2d
103, 109 (1965) ("The pivotal question is the nature of the work actually performed . . . which
leads to the factual determination of whether persons employed to do similar work but in
different fields are engaged in the same 'trade or occupation."). Employees engaged in different
fields but who perform similar work may still be in the "same trade or occupation." Watson v.
McGoldrick, 286 N.Y. 47, 53 (1941). See also Comptroller's Office, ex. rd. Local 621 v. Office
of Labor Relations, OATH Index No. 1398/97 at 19 (Nov. 5, 1997), adopted, Comptroller's Dec.
- 12 & Order (Apr. 1, 1998), Commissioner's Supplemental Dec. & Order (Apr. 29, 1998), aff'd, 253
A.D.2d 596 (1st Dep't 1998) (master mechanics responsible for keeping construction machinery
operational and supervising workers in a variety of trades found comparable for purposes of
prevailing wage law to City workers who supervise the repair and maintenance of different types
of equipment, including sewage treatment equipment, even though "[b]uilding construction and
sewage treatment are certainly different fields").
The analysis therefore must focus upon the actual work performed by those employed in
the civil service title of rigger and the private sector millwrights, during the years 2008 to the
present. While millwrights do not work at the City's ferry terminals and their tasks are broader
than a rigger's, the similarities between the two groups of workers are extensive. The main task
of a rigger is to rig, hoist, and move a wide range of heavy objects and machinery including
pumps, motors, engines, engine parts, generators, propulsion transformers and motors, and
transfer bridges. The riggers employed by the City have also performed rigging work on
Department trucks and assisted with rigging cables on cranes. A millwright builds machines
and, in order to do so, must similarly hoist and rig large components to erect, assemble,
disassemble, and repair machines and equipment. Like riggers, millwrights work on a wide
range of equipment and machinery such as pumps, heat exchangers, variable drives, chains,
engines, motors, generators, cranes, and crane trucks.
While riggers do not build machines independently like millwrights, they assist other
trades with assembling and disassembling machines and equipment such as motors, boilers,
generators, and transformers. Riggers assist with assembling and disassembling machines and
equipment that need to be replaced or repaired by moving them in sections to and from the
vessels. They also assist with setting and aligning the machines and equipment so other trades
can secure the objects. Thus, similar to millwrights, riggers are essential in the building,
breaking down, and rebuilding of machinery and equipment. In fact, the record indicates that
machines and equipment cannot be assembled, disassembled, or aligned without the riggers
moving and alleviating weight off the objects. Further, in order to rig, hoist, and move
machinery and equipment, riggers must assemble and disassemble their own equipment.
Similar to millwrights, riggers maintain, repair, run, and test machinery and equipment.
The riggers maintain the ferry slips at the St. George, Whitehall, and City Island Terminals by
changing and repairing cables and subsequently testing the bridges in the ferry slips to ensure
-13they raise and lower properly. They maintain the rescue equipment on the ferries and maintain
their own equipment, such as chain falls, hoist slings, slips, shackles, A-frames, and wires and
lines. Riggers also assist in maintaining heat exchangers by rigging and removing the covers so
other trades can clean the coils. They assist in repairing the vessels by securing and rigging off
damaged sections and holding a new section in place while it is welded onto the vessel. Riggers
work with boilermakers to build scaffolding on the vessels by erecting the steel and holding it in
place to be welded. Further, millwrights splice "ropes and cables," and riggers splice spring and
breast lines which the boat crews use to tie off the boats.
Given these similarities, the evidence demonstrates that the tasks of a rigger are
encompassed within and sufficiently similar to those of a millwright to support a finding that the
workers are comparable.
Additional arguments
To the extent that OLR raises issues concerning the establishment of wages and
supplements to be paid to those employed in the seven civil service titles included in the petition,
these questions are not properly before this tribunal. The matter was referred to this tribunal to
hold an evidentiary hearing to determine which private sector trade or occupation is comparable
to the seven civil service titles. The Comptroller indicated that once the comparability
determination was made, it would use that determination to set the appropriate wages and
supplements. If there are disputes as to the establishment of the wages and supplements to be
paid, they must be raised at a subsequent hearing, if necessary. See Office of the Comptroller, cx
rd. Local 1320 v. Office of Labor Relations, OATH Index No. 1522/09 at 19 (Sept. 10, 2009),
adopted, Comptroller's Dec. & Order (Nov. 23, 2009); Office of the Comptroller, cx rd. Local
1087 v. Office of Labor Relations, OATH Index No. 2451/08 at 3 (Apr. 6, 2009), adopted,
Comptroller's Dec. & Order (June 26, 2009).
Similarly, the Union's argument that the employees in the seven civil service titles
receive overtime after a seven-hour workday, as opposed to the eight hour workday provided for
in the Comptroller's preliminary determination, is not properly before this tribunal. In any event,
this issue has already been decided upon by Administrative Law Judge Fraser in Comptroller v.
Office
of Labor Relations, OATH Index No. 254/05 at 6-7 (Feb. 28, 2005). See also Labor Law
§ 220(1) (Lexis 2014) ("Eight hours shall constitute a legal day's work for all classes of
employees in this state... unless otherwise provided by law.").
Finally, OLR failed to provide any support for its contention that the petition should not
be granted through the date of the Comptroller's decision. As such, the Comptroller's and
Union's motion to amend the petition to conform to the record is granted. Office of the
Comptroller v. Craft Fence, Inc., OATH Index No. 494/14 at 2 (May 6, 2014), adopted,
Comptroller's Dec. & Order (July 29, 2014) (ALJ granted motion to amend the petition to
conform to the proof); Office of Comptroller v. Mackey Reed Electric, inc., OATH Index No.
1950/13 at 3 (Jan. 3, 2014), adopted, Comptroller's Dec. & Order (June 24. 2014) (petitioner's
motion to amend complaint to conform to the proof may be granted where there is no prejudice
to respondent).
RECOMMENDATION
For the above reasons, the preliminary determination of the Comptroller that those
employed in the civil service title of rigger should be paid commensurate with the wages and
supplements set forth in the collective bargaining agreement between the New York City
Millwright Contractors Association and the District Council of New York City and Vicinity of
the United Brotherhood of Carpenters and Joiners of America and Millwright Local 740, for the
period of July 1, 2008, through the present, should be upheld.
March 5,2015
SUBMITTED TO:
SCOTT M. STRINGER
Comptroller
- 15 APPEARANCES:
MICHAEL D. TURILLI, ESQ.
OFFICE OF THE COMPTROLLER
Attorney for Petitioner
BROACH & STULBERG, LLP
Attorneys for Complainant
BY: ROBERT B. STULBERG, ESQ.
DANIEL A. POLLACK, ESQ.
OFFICE OF LABOR RELATIONS
Attorney for Respondent
Summary of Prevailing Wages and Supplements
CARPENTER & SHIP CARPENTER
Period
7/1/08 to 6/30/09
7/1/09 to 9/30/10
10/1/10 to 6/30/13
7/1/13 to 8/19/13
8/20/13 to 6/30/14
7/1/14 to 12/31/14
Hourly Wage Rate
$43.02
$44.02
$46.15
$48.08
$48.88
$49.88
Surmiemental Benefit Rate
$35.96
$38.50
$38.50
$41.10
$42.70
$44.10
SUPERVISOR CARPENTER & SUPERVISOR SHIP CARPENTER
Period
7/1/08 to 6/30/09
7/1/09 to 9/30/10
10/1/10 to 6/30/13
7/1/13 to 8/19/13
8/20/13 to 6/30/14
7/1/14 to 12/31/14
Hourly Wage Rate
$46.02
$47.02
$49.15
$51.08
$51.88
$52.88
Sunlemental Benefit Rate
$35.96
$38.50
$38.50
$41.10
$42.70
$44.10
The Supplemental Benefits are composed of the following: Welfare, Pension, Annuity, A.J.R.E.1.F, Vacation,
Supplemental, and Supplemental Pension.
Overtime
Time and one half the regular wage rate after an 8 hour day.
Time and one half the regular wage rate for Saturday.
Double time the regular wage rate for Sunday.
Saturday may be used as a make-up day at straight time when a day is lost during that week to inclement weather.
Overtime Holidays
Double time the regular wage rate for work on the following holidays:
New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day,
Presidential Election Day, Thanksgiving Day, Day after Thanksgiving, and Christmas Day
Shift Rates
The second shift will receive one hour at the double time rate of pay for the last hour of the shift; eight hours pay for
seven hours of work, nine hours pay for eight hours of work. There must be a first shift in order to work a second
shift.
(BUILDING CONSTRUCTION AGREEMENT)
Summary of Prevailing Wages and Supplements
DOCKBUILDER
Period
7/1/08 to 6/30/09
7/1/09 to 9/30/10
10/1/10 to 6/30/13
7/1/13 to 6/30/14
7/1/14 to 12/31/14
Hourly Wage Rate
$43.61
$44.61
$46.74
$46.82
$48.35
SuDDlemental Benefit Rate
$38.06
$40.78
$42.37
$44.97
$46.12
SUPERVISOR DOCKBUILDER
Period
7/1/08 to 6/30/09
7/1/09 to 9/30/10
10/1/10 to 6/30/13
7/1/13 to 6/30/14
7/1/14 to 12/31/14
Hourly Wage Rate
$46.61
$47.61
$49.74
$49.82
$51.35
Sutrnlemental Benefit Rate
$38.06
$40.78
$42.37
$44.97
$46.12
The Supplemental Benefits are composed of the following: Welfare, Pension, Annuity, A.J.R.E.I.F, Vacation,
Supplemental, and Supplemental Pension.
Overtime
Time and one half the regular wage rate after an 8 hour day.
Time and one half the regular wage rate for Saturday.
Double time the regular wage rate for Sunday.
Saturday may be used as a make-up day at straight time when a day is lost during that week to inclement weather.
Overtime Holidays
Double time the regular wage rate for work on the following holidays:
New Years Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Presidential
Election Day, Thanksgiving Day, and Christmas Day
Shift Rates
Off shift work, commencing between 5:00 P.M. and 10:00 P.M., shall work eight and one half hours allowing for
one half hour for lunch but will be paid the straight time hourly wage for 9 hours and the straight time supplemental
benefits for 8 hours.
(GENERAL CONTRACTORS ASSOCIATION - DOCKBUILDERS AGREEMENT)
Summary of Prevailing Wages and Supplements
RIGGER
Period
7/1/08 to 6/30/09
7/1/09 to 6/30/10
7/1/10 to 12/31/12
1/1/13 to 6/30/13
7/1/13 to 6/30/14
7/1/14 to 12/31/14
Hourly Wage Rate
$43.69
$44.24
$46.19
$46.19
$47.69
$48.44
Suimlemental Benefit Rate
$42.27
$44.67
$45.67
$48.12
$48.87
$50.52
The Supplemental Benefits are composed of the following: Welfare, Pension, Annuity, A.J.R.E.I.F, Vacation,
Supplemental, and Supplemental Pension.
Overtime
Time and one half the regular wage rate after an 8 hour day.
Time and one half the regular wage rate for Saturday.
Double time the regular wage rate for Sunday.
Saturday may be used as a make-up day at straight time when a day is lost during that week to inclement weather.
Overtime Holidays
Double time the regular wage rate for work on the following holidays:
New Year's Day, President's Day, Good Friday, Memorial Day, Independence Day, Labor Day, Columbus Day,
Presidential Election Day, Thanksgiving Day, and Christmas Day
Paid Holidays
1/2 day on Christmas Eve if work is performed in the A.M.
1/2 day on New Year's Eve if work is performed in the A.M.
Shift Rates
The first shift shall receive the straight time rate of pay. The second shift receives the straight time rate of pay plus
fifteen (15%) per cent. Members of the second shift shall be allowed one half hour to eat, with this time being
included in the hours of the workday established. There must be a first shift to work a second shift. All additional
hours worked shall be paid at the time and one-half rate of pay plus fifteen (15%) per cent for weekday hours.
(INDEPENDENT MILLWRIGHT AGREEMENT)