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As if the prevailing wage law and enforcement policy of the NYS Department of Labor hasn’t been confusing enough over the years, DOL recently issued and then “clarified” a new policy which applies the state’s prevailing wage requirements to the delivery of asphalt and concrete from existing commercial plants, but only under certain circumstances.

For many years it has been the policy of DOL that prevailing wages apply to workers hauling asphalt and/or concrete when they drive to and from batch plants established for the sole purpose of supplying a public works project. Delivery of asphalt and/or concrete from existing commercial plants has not been subject to the application of prevailing wages. That policy changed when on February 22, 2002, DOL’s Bureau of Public Work issued a “policy update” stating that effective March 1, 2002, under certain circumstances Article 8 of the Labor Law (the prevailing wage law) shall apply to workers hauling asphalt and/or concrete when they drive to and from a public project when such materials have originated in plants not more than 50 miles from such project. Further, the new policy will apply only in such cases where the Bureau determines that asphalt and/or concrete batch plants are, as a matter of course, not established for the sole purpose of supplying public work projects.

This policy change raised many new questions, not only about the application of prevailing wages to the delivery of asphalt and concrete, but about the application of prevailing wages to the delivery of construction supplies and materials in general. NESCA immediately contacted DOL to seek clarification and to express concern over the new policy as well as the manner in which it was promulgated. How is it possible for the Department of Labor to bypass the State Administrative Procedure Act (SAPA) and instead regulate by “policy”? Where in the law does DOL find the statutory authority to enforce prevailing wage requirements on material deliveries? If Article 8 can be applied to asphalt and concrete deliveries, could the delivery of steel and sheet metal fabricated at offsite commercial establishments, not to mention the delivery of building supplies in general, be next?

Further muddying the waters, on March 6, 2002, the Bureau of Public Work clarified the policy change by announcing that the new policy would only be applicable in Nassau and Suffolk Counties…for now. That is, in the event a future determination is made by DOL that drivers hauling asphalt and/or concrete to or from public works projects from commercial plants should be covered by a prevailing rate, “the Bureau will make a determination of the proper rate to be paid to such drivers and will make notice of this change available to all interested parties.” This announcement, of course, has raised a whole host of new questions regarding the consistent application of the prevailing wage law throughout New York State.

On March 7, 2002, NESCA expressed our concerns in a letter to Labor Commissioner Linda Angello, and asked for the opportunity to meet with the Commissioner to further discuss these concerns. Until such time that meeting takes place, NESCA members are reminded that as of March 1, 2002, DOL will apply the prevailing wage law to the delivery of asphalt and concrete, but only in Nassau and Suffolk Counties.

PRESIDENT’S MESSAGE Go Top

At NESCA’s March 14, 2002 membership meeting, we heard from Donald Radley with the Department of Labor’s Apprenticeship Training Office. Given Governor Pataki’s signature of the apprencticeship training bill this past December, the issue of apprentice training for subcontractors, and more specifically, how to register an apprenticeship program with DOL, has taken on a new level of significance. NESCA members are reminded that the new law does not mandate apprenticeship programs on all public projects, but it does allow individual state agencies, municipalities and school districts to adopt the requirement that contractors and subcontractors have DOL registered apprenticeship programs as a bidding requirement. In other words, certain public agencies may elect to adopt apprenticeship requirements and others may choose not to. In any case, it is very important that NESCA members who engage in public works construction learn as much about what it takes to register a program with DOL as possible. Members who have specific questions about establishing an apprenticeship program should contact the DOL Apprenticeship Training Office in your region as follows:

Capital District – (518) 457-1996

(Covers Albany, Clinton, Columbia, Essex, Franklin, Fulton, Greene, Hamilton, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie, Warren, and Washington Counties)

Mid-Hudson Region – (914) 997-9534

(Covers Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester Counties)

Binghamton Region – (607) 741-4577

(Covers Broome, Chemung, Chenango, Delaware, Otsego, Schuyler, Steuben, Tompkins, and Tioga Counties)

As we approach the end of winter, it’s a good time to give members a “heads up” on the dates for some of NESCA’s upcoming warm weather events. On Monday, June 10th, NESCA and the General Building Contractors of NYS will hold the 7th Annual Joint Mid-Hudson Golf Outing at the Wiltwyck Golf Club in Kingston. On Thursday, July 25th, we will hold our 4th Annual Day at Saratoga Race Track in Saratoga. And on Monday, September 9th we will hold our 18th Annual Capital District Golf Outing, this year at Shaker Ridge Country Club. Please mark these dates on your calendar. Detailed information on each of these events will be mailed to all members prior to the event.

Congratulations to John Stanger with Wind Energy Power Co., Inc. who is now $25,000 richer as a result of his holding the winning ticket at NESCA’s 17th Annual Frank Campito Memorial Car/Cash Giveaway held on February 21st at the Century House! Finally, at NESCA’s March membership meeting we failed to have a winner for our monthly “attendance incentive” drawing. Had somebody from Joseph R. Wunderlich, Inc. been in attendance, the company would have won free membership in NESCA for our 2002-03 year, a $575 value! Attend NESCA’s April 11th membership meeting and perhaps YOUR company’s name will be drawn for a free membership!

Bob Kind

COURT OF APPEALS SAYS NOT SO FAST TO DOL PREVAILING WAGE

CROSS-WITHHOLDINGS Go Top

On February 7, 2002, the New York State Court of Appeals decided In the Matter of RLI Insurance Company, Surety Division, versus the New York State Department of Labor, et al. In this case, the Court addressed an issue concerning the priorities of claims to funds in the possession of the project owner. RLI Insurance Company, a surety, which had fully completed the construction of the project on behalf of the defaulting contractor and had paid all subcontractors, laborers and suppliers, claimed that it was subrogated to the Article 3-A trust fund beneficiary rights of such subcontractors, laborers, and suppliers. At the same time, the New York State Department of Labor made a claim against the same funds for underpaid wages on the project as well as prior underpayment of wages on an unrelated public improvement project. With respect to DOL’s cross-withholding claim, the Court held that “cross-withholding would not extend to unmatured rights of the contractor to payment. It necessarily follows that for purposes of cross-withholding to pay laborer’s wages on an unrelated public improvement project, DOL is in a secondary position with respect to the 3-A trust beneficiaries, whose rights arose at the time of contract execution and prior to the existence of the contractor’s right to payment.” The Court also distinguished between Labor Law §220 withholdings and cross-withholdings by stating “While the statute authorizes the filing of both kinds of notices, it neither expressly nor impliedly directs that claims of laborers on an unrelated project should be afforded a preference in an action to enforce an Article 3-A trust.”

The Court further supported its determination on public policy considerations concluding “Were we to adopt DOL’s position, completing sureties would be forced to pay for obligations they did not bond. Such a result would lead to increased risks and uncertainties of exposure for sureties and, ultimately, greater costs to the taxpayers on public improvement projects.”

This case will certainly have a severe impact on the Department of Labor’s cross-withholding policies under the Labor Law. The DOL’s right to withhold, as opposed to cross-withholding still remains intact.

Terence J. Burke, Esq.

NESCA Legal Counsel

LEGISLATION RECENTLY PASSED BY STATE ASSEMBLY Go Top

A1290 – “Free Estimates” – Prohibits businesses from advertising or offering to provide free estimates for any repairs or other services unless such estimate is provided in writing signed by the offeror or is on the letterhead of the offeror and clearly sets forth that there is no charge to the consumer for such estimate. Violations shall be deemed a deceptive practice under the General Business Law. No action to date in the Senate.

A4130 – “Relief to Small Business From Excessive Fees” – Would amend the state administrative procedure act (SAPA), by providing relief to small businesses from excessive fees imposed by the rules and regulations of state agencies. Requires agencies to tier new fees based on business size unless otherwise prohibited by law, and to review their rules to determine which fees should be changed to provide additional relief to small business. No action to date in the Senate.

DO BUSINESS WITH THE GOOD GUYS! Go Top

Stay Out of Trouble With NESCA’s

Business Practices Interchange

One of the most important member-only services NESCA offers is our Business Practices Interchange (BPI). The BPI allows members of NESCA to obtain accurate, first-hand information on the business and payment practices of general contractors, developers and owner-builders. We are truly in the “information age”, and those businesses that take steps to stay information-rich will undoubtedly enjoy certain key advantages over those that don’t. Doing business with reputable companies has become more important than ever, and the NESCA BPI can help you do just that.

Members seeking information about a particular contractor may call the NESCA office and receive the names of fellow members who have recently done business with that company. By contacting other members directly, you can receive solid, valuable, first-hand information on such important factors as payment practices, contract language, backcharges, change order administration and other information that helps to maximize your ability to make intelligent choices as to who you would like to do business with. The NESCA BPI is not a credit reporting service, it’s a member referral service…and it works!

WELCOME NEW MEMBERS Go Top

Armistead Mechanical, Inc. Hertz Equipment Rental Corp

324 North Plank Road 3 Avis Drive

Newburgh, NY 12550 Latham, NY 12110

(845) 566-0770 (518) 783-4598

Fax (845) 566-1822 Fax (518) 783-5305

Contact: Joe Jerkowski Contacts: Steve Theiss, Thomas Fuller

Leo Boice and Sons, Inc. James McGowan Masonry

190 Farm to Market Road, Lot #1 P.O. Box 1963

Kingston, NY 12401 Kingston, NY 12402

(845) 331-3439 (845) 339-0329

Fax (845) 340-4684 Fax (845) 331-2885

Contact: Leo Boice Contact: Jim McGowan

Comalli Electric Mountain Air Heating and Cooling

18 Walker Way 405 Front Street

Albany, NY 12205 Schenectady, NY 12305

(518) 218-1500 (518) 393-1200

Fax (518) 218-1501 Fax (518) 393-2900

Contact: Jim Comalli Contacts: Ray Phillips, Lisa Phillips

Harbour Roads Shaker Computer and Manage. Serv., Inc.

P.O. Box 4087 6 Airport Park Blvd.

Albany, NY 12204 Latham, NY 12110

(518) 266-0690 (518) 242-7200

Fax (518) 266-0694 Fax (518) 242-7898

Contact: Laura Harbour Contacts: Jim Buydos, John Rosch

CASH WINNERS AT NESCA’S 17TH ANNUAL CAR/CASH GIVEAWAY Go Top

As follows are the winners of NESCA’s 17th Annual Car/Cash Giveaway held on February 21, 2002 at the Century House:

Renee Manny & Lynn Cooney - $400 Britt Carmer - $400

Stark Northeast Oil - $400 Wilber Whitman - $400

Jim & A.J. Elacqua - $400 Jim Melanson - $400

Donna & Mac McDonald - $400 Joe Severance - $400

Dennis & Esther Irwin - $400 Weather Guard Ind. - $400

Mike Creamer & Dave Bowers - $400 Peter DiPace - $500

Sam DeCicco - $750 Kathy Stilsing - $1,000

Lori Mayott - $2,500

And the Grand Prize Winner…... John Stanger - $25,000!!!