GOVERNOR VETOES APPRENTICE REQUIREMENT BILL Go Top

Governor Pataki has vetoed a bill which would have authorized NYS public authorities to include language in their procurement guidelines requiring prime contractors and their subcontractors on public work contracts to participate in apprenticeship programs that have been approved by the State Department of Labor.

In his December 8, 2000 veto message, the Governor explained that while he is supportive of the goal of “enhancing opportunities for trainees and apprentices in the construction trades to obtain important skills through on-the-job training”, he expressed concern that the legislation in question was too “vague and open-ended”.

Specifically, Governor Pataki was concerned that the bill allowed public authorities to adopt a requirement that contractors “participate” in DOL-approved apprenticeship programs, but gave no guidance as to what the term “participate” means. That is, under this bill a contractor could conceivably “participate” in an apprenticeship program that would entitle it to bid on the public authority’s contracts, but not be required to use any apprentices on the job after the bid is accepted. Further, the Governor pointed out that the bill did not provide public authorities with any guidance as to the preferred content of an apprenticeship program and provides no direction with respect to the contracts for which an apprenticeship requirement may be appropriate.

Historically, the Department of Labor has been reluctant to approve new apprenticeship program applications where an existing apprenticeship program is in place in a given locality. It has been nearly impossible for contractors submitting new apprenticeship program applications to receive approval by DOL. As such, if it had been approved by the Governor, this bill may have precluded many contractors and subcontractors from bidding work let by public authorities.

Governor Pataki directed the Commissioner of Labor to meet with representatives of contractor organizations and the building trades in order to further examine the issue of mandating apprenticeship training programs on public projects.

APPELLATE COURT HOLDS THAT DOL DID NOT VIOLATE SAPA Go Top

In a November 16, 2000 decision, the Appellate Division, Third Department of the State Supreme Court affirmed the lower court’s finding that the NYS Department of Labor’s May 1999 “Notice” concerning enforcement of prevailing wage supplement payments was not a violation of the State Administrative Procedure Act (SAPA).

In response to the Notice, HMI Mechanical Systems, Inc. had brought an action seeking annulment of the Notice because it had not been formally adopted pursuant to the rule-making procedures of SAPA. In December 1999, the Supreme Court dismissed the proceeding holding that the DOL-issued Notice fell within the “interpretation” exception of SAPA and, therefore, it should not be considered a rule subject to that act.

On appeal, the Appellate Division affirmed the judgment, observing that the Notice challenged by HMI Mechanical described how DOL enforced the prevailing wage law with regard to the payment of supplements. The Court further stated that the Notice “relied on existing regulations and laws for its stated conclusions and therefore was interpretive and fell within the rulemaking exception provided in SAPA.”

PRESIDENT’S MESSAGE Go Top

I hope everyone had a great holiday season and you are now looking forward to favorable business opportunities in the coming year. Speaking of the holidays, on December 14th NESCA held its annual holiday meeting at the Century House. Over 175 members and their spouses attending this meeting, and everyone had a fantastic time. Our Toys for Tots campaign generated a van-load of toys, and we were also able to turn over a $2,400 check to the Marine Corps. Thank you very much to all who donated to this worthy cause. I would also like to thank the following companies for their generosity in co-sponsoring the holiday meeting:

· AFSCO Fence Supply Co., Inc.

· AWESCO

· Albany Ladder Co., Inc.

· All-Lifts, Inc.

· Burjon Construction Co., Ltd.

· Campito Plumbing & Heating, Inc.

· Gomez Electrical Contractors, Inc.

· NationsRent

· S & O Construction Services, Inc.

· Stants Combustion Associates, Inc.

· Stone Bridge Iron & Steel, Inc.

· Teal Becker & Chiaramonte, CPA’s, PC

· Weather Guard Industries, Inc.

· The Woodward Company

NESCA has a full slate of seminars, meeting programs and other activities planned for the first several months of 2001. Our January 11th membership meeting will be a joint meeting with the National Association of Women in Construction (NAWIC). We will continue with the condensed meeting format we successfully introduced in September, and this month will feature a mini-seminar on “Payment and Payment Language” to be presented by Linda Mandel Clemente with Mandel Clemente & Associates, P.C. Ms. Mandel Clemente’s presentation will cover such payment-related areas as establishing payment rights; contingent payment and stop work terms; modifying subcontract language; and collecting payment. All attendees at the January 11th membership meeting and mini-seminar will also receive some great handouts to compliment Linda’s remarks. Remember, your attendance at this meeting will qualify you for a drawing to win a free membership in NESCA next year!

Also in January, the NESCA/GBC/ECA Educational Partnership will hold a Superintendent Training Program on “Oral & Written Communication” beginning on January 4th and running for five consecutive Thursdays. In addition to the STP course, the Educational Partnership will hold a “Contract Law” seminar on January 23rd featuring a panel of construction attorneys who will discuss a “Top 10” list of legal issues. Finally, on January 20th, it will be NESCA Night for Albany Attack Lacrosse at the Pepsi Arena. Members have been mailed information and registration forms for this upcoming special event.

Finally, I remind members NESCA’s 16th Annual Car/Cash Giveaway will be held on February 22nd at the Century House. Over $35,000 in prizes will be awarded including our grand prize, which will be the winner’s choice of a variety of prize packages or $25,000 cash! Tickets are on sale at the NESCA office for $200.

Steve Dewey

President

VIOLATIONS OF SCAFFOLD LAW MUST BE PROXIMATE CAUSE OF INJURY

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The Supreme Court, Appellate Division, Third Department recently held that a worker injured when a load of excavated concrete footing shifted in the truck bed in which the worker was standing, was not entitled to recovery under the scaffolding law of the State of New York. The actions of the excavator operator in prematurely pulling a lift chain from the footing in the truck bed was the proximate cause of the shifting load, and thus, the statute did not apply. Valley v. Irish Development Corporation et al,711 N.Y.S.2d241 (3d Dept 2000). The Court further held that in order to impose liability for this workers’ injury upon the contractor or landowner under Labor Law Section 241, it was essential that the Plaintiff demonstrate a violation of a specific regulatory provision of the industrial code by the contractor or landowner.

Plaintiff William R. Bailey, Sr. (“Bailey”) was a general laborer and truck driver employed by a third party defendant in this lawsuit, Cal Parlman, Inc. (“Parlman”). Defendant Brooks Contracting, Inc. was the general contractor on the project which was the construction of a wholesale depot store. The subcontract required Parlman to excavate and install the footing and foundation system of the structure. Pursuant to a change order, the existing footings to the structure were to be removed, trucked off site and buried by Parlman. Parlman subcontracted with Irish Development Corporation to do this work.

Plaintiff and an employee of Irish Development Corporation used an excavator to lift the pieces of concrete footing from the ground (each of which was approximately 6 feet long, 6 feet wide and 18 inches thick, weighing in excess of 4 tons) into the bed of the dump truck. In order to lift the footings, the workers fastened one end of a chain to the bucket of the excavator and Plaintiff wrapped the opposite end of the chain around a piece of footing. Once the concrete was lifted into the bed of the truck, Plaintiff unhooked the chain and exited the bed of the truck, after which the excavator operator would pull the chain loose from the footings. This procedure worked well until the attempted removal of the seventh footing. On that occasion, as Bailey attempted to exit the truck the excavator operator prematurely began to pull the chain from the concrete. Two concrete footings then on the truck slid, causing the truck body to rise into the air. Plaintiff located on the cab shield, grasped the top edge of the cab to avoid failing, but lost his grip and fell to the roof of the truck cab, and then onto the ground.

Plaintiff sued Irish Development Corporation under Labor Law Sections 200, 241(1), 241(6) and under a common law theory of negligence. After discovery, Plaintiff moved for partial summary judgment on the issue of liability and the Supreme Court dismissed Plaintiff’s Labor Law claims. Plaintiff appealed to the Appellate Division, which upheld the lower court’s decision regarding Labor Law Section 241 but held that genuine issues of fact precluded summary judgment on Bailey’s claims under Labor Law Section 200 and the common law duty of a landowner to provide employees with a safe place to work.

The Court noted that New York Scaffolding Law imposes a nondelegable duty upon owners and contractors to provide necessary and appropriate protection to workers employed on a construction site and that this protection afforded by the Labor Law is intended to encompass only elevation-related hazards which result in injury to workers as a result of inadequate or missing safety equipment. The Court noted that the Scaffolding Law contains a list of devises intended to protect workers from elevation-related risks, and quoted New York State’s highest court with regard to the circumstances in which the Labor Law means to afford protection to workers as: “Those [hazards] related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and the lower level or difference between the elevation level for the workers position and a higher level of the materials or load to be hoisted or secure.”

The Appellate Division agreed with the Supreme Court that none of the devices listed in Section 241(1) were intended to or would have prevented the series of events which led to Bailey’s injury, since the accident was not caused by defective or missing safety equipment but by the faulty operation of the excavator operator. The excavator operator simply did not wait for Bailey to exit the truck before attempting to remove the chain from the footing and this caused Bailey’s injury. The Court went on to dismiss Plaintiff’s cause of action under Labor Law Section 241(6), which imposes a nondelegable duty upon owners and contractors to provide “reasonable and adequate protection and safety” to construction workers. The Court held that since Plaintiff demonstrated no violation of any specific regulatory provision of the industrial code, liability could not be imposed under such section of the Labor Law.

The Appellate Division, however, reversed the lower Court’s decision dismissing claims under Labor Law Section 200 and common law negligence. Labor Law Section 200 codifies the common law duty of a landowner or employer to provide employees with a safe place to work. The Court, finding that questions of fact existed regarding whether the owner or general contractor supervised or controlled the work performed at the work site or had actual constructive notice of the unsafe conditions which led to Plaintiff’s injury, summary judgment dismissing such causes of action was improper.

Therefore, Plaintiff maintained his action for Labor Law Section 200 and common law negligence, but lost his rights to sue under New York Scaffolding Law or Labor Law Section 241(6) since Plaintiff’s work was not the kind protected under the Scaffolding Law and no specific regulatory provisions of the industrial code were proven to be violated.

Terence J. Burke

NESCA Legal Counsel

WELCOME NEW MEMBERS Go Top

Henderson-Johnson Co., Inc.

918 Canal Street

Syracuse, NY 13217-6964

(315) 479-5561; Fax (315) 479-5585

Contacts: Thomas McIndoe

Anthony Whaley

J & J Sheet Metal Works, Inc.

414 Commerce Road

Vestal, NY 13851

(607) 729-3566; Fax (607) 797-7520

Contacts: Ralph Azersky

Mike Azersky

J & K Plumbing & Heating Co., Inc.

24 Thorp Street

Binghamton, NY 13905

(607) 772-1666; Fax (607) 724-4048

Contacts: W. Allyn Jones

Mark J. Larson

Jim Waters Corp.

419 Manchester Road

Poughkeepsie, NY 12603

(845) 452-6310; Fax (845) 452-3989

Contact: Diane Stanton

ACTIVITY DEFINES WHICH OSHA STANDARDS APPLY Go Top

Have you ever been confused as to whether you are bound by either OSHA’s “construction” or its “general industry” standards? If you have been then you’re not alone, and the fact is, you may be required to comply with both sets of standards depending on the circumstance. Many companies must consult both the 29 CFR 1910 standards (general industry) and the 29 CFR 1926 standards (construction). A blanket statement such as, “We are a subcontractor so we only follow the 1926 rules” just won’t work. You have to ask yourself the question, “what are the activities that my employees will be engaged in?

Some activities are obvious. If your employee is stocking shelves in a warehouse, the general industry rules would apply. If your employee is erecting structural steel at a construction site, the construction rules are pertinent. The situation starts to get a little muddied when, for example, a manufacturing company decides to renovate their facilities and will do the work themselves. When those manufacturing employees use tools to tear down an existing wall, they are doing construction work and must be instructed in the construction standards that apply to the work. Likewise, when employees are working in a construction company’s warehouse engaged in general industry-type activities, such as using a forklift or metal fabrication work in the shop, the employer and employees must follow OSHA’s general industry rules.

OSHA has explained that it is the activity to be performed, and not the company’s standard industrial classification (SIC) code, that determines which standard applies. Construction work is construction, alteration and/or repair, including painting and decorating. The employer need not be a construction company. It does not depend on the company name, SIC code, or what it usually does. Ultimately, it depends on the task the employee is doing. Not limited to new construction, “construction work” includes repairing existing facilities and replacing and/or improving structures and their components.

General industry work, on the other hand, is manufacturing, furnishing materials, or servicing and maintenance. Maintenance work is considered a general industry activity and: covers maintaining or keeping a structure, fixture or foundation in proper condition in a routine, scheduled or anticipated fashion; does not significantly alter the structure or equipment in the process; and implies preventing failure or degradation. Service workers in plumbing, heating and air conditioning are generally covered under the general industry standards.

The bottom line is, when determining whether OSHA’s general industry or construction standards are applicable to your company and its employees, understand that the particular activity an employee may be engaged in at a given time will govern whether you should follow the 1910 or 1926 standards. Decisions should be made on a case-by-case basis, but if the activity can’t be easily classified (as construction or maintenance for instance), it is normally advisable to comply with the more protective standard.

CORRECTION - The Tougher Industries, Inc. advertisement in the 2000-2001 NESCA Membership Directory indicates that Tougher is a LINC Service Contractor. Please be advised that Tougher Industries is no longer a LINC franchise.