47 Mass. App. Ct. 491 | Mass. App. Ct. | 1999
The issue in these appeals is whether G. L. c. 149, § 27F, set out below at note 5, requires a private company, under contract with a municipality to provide refuse collection and disposal services, to pay wages at “prevailing rates” (as determined by the Commissioner of Labor and Workforce Development
In 97-P-1087, the plaintiffs are nondriver employees of Vining whose work includes collecting the trash, dumping it into the hopper at the back of the trash trucks, and activating the compacting equipment. Known as “shakers” due to the nature of their work, they claim that Vining unlawfully paid them wages at less than the prevailing rates mandated by the statute. A judge of the Superior Court entered summary judgment for Vining, reasoning that the plaintiff “shakers” were not “operators” of “equipment” under section 27F because “equipment” refers only to automotive items and “operators” refers only to persons controlling the direction and speed of such items, that is to say, the drivers. The plaintiffs appealed.
In 97-P-1728, the plaintiff is the Attorney General,
The dispute centers on the meaning of portions of three phrases in the first sentence of section 27F that determine its scope.
1. “Public works” The term “public works” has not been comprehensively defined in our decisional law. See, e.g., G. L. c. 30, §§ 39M-P; G. L. c. 149, §§ 26-27F; Lee v. Lynn, 223 Mass. 109, 113 (1916); Andover Consultants, Inc. v. Lawrence, 10 Mass. App. Ct. 156, 158 n.4, 160 (1980); Modem Continental Constr. Co. v. Lowell, 391 Mass. 829, 831-835, 838-839 (1984); J. D’Amico, Inc. v. Worcester, 19 Mass. App. Ct. 112, 113-114 (1984); Thorn Transit Sys. Intl., Ltd. v. Massachusetts Bay Transp. Authy., 40 Mass. App. Ct. 650, 652-656 (1996). The reason is doubtless that the meaning of the phrase is somewhat
Finally, legislatures have at times used “public works” still more broadly to include activities with no immediate connection to fixed public improvements. See United States v. Irwin, 316 U.S. 23, 27-30 (1942) (construction of private university library with public funds was “public work” under Miller Act); Flying Tiger Lines, Inc. v. Landy, 370 F.2d 46, 49 (9th Cir. 1966) (contract between air carrier and United States Air Force to transport military personnel to Vietnam was “public work” contract under Defense Base Act); Lelande v. Lowery, 26 Cal. 2d 224, 227 (1945) (publication of tax notices under contracts with county was “public work”); State v. Butler, 178 Mo. 272, 305-317 (1903) (municipal refuse collection is a “public work”). Significant for our purposes is G. L. c. 41, § 69D, which allows a town to create a board of public works, the role of which may under local law include the “collection and disposal of garbage and refuse” ■— a function that § 69D describes as one “reasonably related to the duties and responsibilities of a board of public works.” See Board of Pub. Works of Wellesley v. Selectmen of Wellesley, 377 Mass. 621, 621-622 (1979) (town board of public works was responsible for refuse disposal). Here, Burlington’s superintendent of public works, having a supervisory role over the execution of the contract, has approval authority over changes in the collection schedule, the placement of dumpsters, and special collections. In construing “public works” in section 27F, we give weight to the role of boards of public works with respect to the activity in question. See Commonwealth v. W. Barrington Co., 5 Mass. App. Ct. at 419.
The Legislature’s broad use of “public works” to include refuse collection and disposal dates at least to the 1953 enactment of G. L. c. 41, § 69D (see St. 1953, c. 101, § 1) and thus preceded and was available to inform the later enactment of § 27F in 1960. See St. 1960, c. 795. We note also that, at least as early as 1975, the department was taking the position that § 27F required it to set prevailing wage levels for nondriver trash collection workers. Although at various times ascribing
2. Service versus rental contract. We similarly reject Vining’s argument that a contract (such as this) for the services of an independent contractor falls outside of section 27F because it is not a “lease, rental or other arrangement, [or] order or requisition.” Relying on a decision of only marginal relevance,
Vining also relies on the title of the Act creating § 27F —■ “An act requiring payment of determined wages to operators of trucks and other equipment rented for use on public works,” St. 1960, c. 795 — as reflecting that only contracts in the nature of a rental are within its scope. The title cannot here be treated as a reliable interpretive guide to the substantive provisions. Confining the section to rentals would ignore the broader connotation of the terms “order” and “requisition,” violating the maxim that “[n]o portion of the statutory language may be deemed superfluous.”
We also find no support for Vining’s position in the fact that the statute applies only when vehicles or equipment are “to be engaged in public works by the commonwealth or by a county, city, town or district.” G. L. c. 149, § 27F. Vining argues that this language must mean that the public works are conducted directly “by” the government, i.e., not by independent contracting. It is, however, no less natural to read the preposition “by” as modifying the verb “engaged,” so that the focus of the quoted language is the utilization of vehicles or equipment on public works at the behest of the government, whether directly or indirectly.
3. “Operators” of “equipment.” Contrary to Vining’s argument, the reference to the “operator” of “a truck or any automotive or other vehicle or equipment” does not limit the application of § 27F to the drivers of such vehicles. That construction fails to give effect to the word “other,” which grammatically modifies both “vehicle” and “equipment.” See Commonwealth v. Gove, 366 Mass, at 354. We are satisfied that a natural reading of “operator” of “other vehicle or equipment” is broad enough to include a shaker as the one who operates the truck’s compacting equipment, which is, after all, the business part of the truck’s function. This interpretation is not a stretch; it accords with the statute’s plain language. See Green’s Case, 46 Mass. App. Ct. 910, 911 (1999).
4. Other issues. Vining makes several technical arguments that we reject. One is that the shakers’ action should be dismissed because a jurisdictional prerequisite was not observed,
The judgment in the shakers’ action (97-P-1087) is reversed, and the action on remand is to be consolidated with the Attorney General’s action (97-P-1728) for further proceedings consistent herewith. The judgment in the Attorney General’s action is affirmed but is to be enlarged to afford the relief sought by the plaintiffs in the shakers’ action.
So ordered.
By St. 1996, c. 151, § 366, the Department of Labor and Industries became known as the Department of Labor and Workforce Development.
The Department of Labor and Workforce Development (department), see note 3, supra, was the agency originally charged with enforcing the statute, but that duty was transferred to the Attorney General by St. 1993, c. 110, §§ 177, 390.
The statute, with the disputed phrases italicized, provides in relevant part:
“No agreement of lease, rental or other arrangement, and no order or requisition under which a truck or any automotive or other vehicle or equipment is to be engaged in public works by the commonwealth or by a county, city, town or district, shall be entered into or given by any public official or public body unless said agreement, order or requisition contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to the operators of said trucks, vehicles or equipment. Any such agreement, order or requisition which does not contain said stipulation shall' be invalid, and no payment shall be made thereunder. Said rates of wages shall be requested of said commissioner by said public official or public body, and shall be furnished by the commissioner in a schedule containing the classifications of jobs, "and the rate of wages to be paid for each job.”
One clear example of the elastic meaning of “public works” arises in the context of the public bidding laws. A public building is not a “public work” for purposes of G. L. c. 30, § 39M, which requires competitive bidding for a contract for “the construction, reconstruction, alteration, remodeling or repair of any public work.” Such contracts are instead governed by a separate public bidding statute. See G. L. c. 149, §§ 44A-H; J. D’Amico, Inc. v. Worcester, 19 Mass. App. Ct. at 113-114, and cases cited.
By contrast, under the prevailing wage laws, a contract for the construction of a public building would seem to involve a “public work.” See G. L. c. 149, § 26; § 27B (employer’s statement of compliance must identify the “building or project” on which its employees are working); § 27C (referring to “public building or other public works”). See also Commissioner of Labor & Indus, v. Lawrence Hous. Authy., 358 Mass. 202, 206-207 (1970); Thorn Transit Sys. Intl, Ltd. v. Massachusetts Bay Transp. Authy., 40 Mass. App. Ct. at 654-656 (outside context of public bidding statutes, “public buildings” and “public works” need not be mutually exclusive).
Dickson v. Riverside Iron Works, Inc., 6 Mass. App. Ct. 53, 54-56 (1978). Dickson is distinguishable if only for the reason stated in note 8, infra.
The doctrine seems most appropriate to a seriatim listing containing numerous terms and ending with the disputed language. See Santos v. Bettencourt, 40 Mass. App. Ct. 90, 93 (1996) (limiting meaning of building in phrase “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building”). The case for ejusdem generis here is weakened by the fact that only two words precede “other arrangement,” which is then followed in close proximity by “order or requisition.”
We find unpersuasive a theory advanced by Vining that the Legislature’s purpose in enacting § 27F was to plug a previously existing “gap” in the prevailing wage laws (here, Vining refers to G. L. c. 149, §§ 26-27D) that allowed their circumvention if a government entity “rented” operators and equipment for its own use on public works rather than hired a contractor to perform the same services. This theory has no support in the legislative history and in any event fails to explain the broadening of “public works” in § 27F to endeavors outside of the traditional arena of construction of fixed improvements, as well as the § 27F penalty provisions which are at variance from those in § 27C.
Our reading of the W. Barrington Co. opinion convinces us that the contract in that case was for street sweeping services to be “performed by private contractors using their own employees and equipment,” and not, as Vining contends, for the mere “rental” of street sweeping machines with operators to be supervised by municipal personnel. See 5 Mass. App. Ct. at 417, 418 n.2, 419.
Vining’s stance also assumes that the words “requisition” and “order” can refer only to physical items and not to the provision of services, a position which, according to accepted definitions and statutory usages, is debatable. See G. L. c. 8, § 6; G. L. c. 16, § 4A; G. L. c. 22C, §§ 29-31, 50; G. L. c. 28, § 4B; G. L. c. 37, § 13; G. L. c. 121B, § 11; G. L. c. 254, § 32. See also Webster’s Third New International Dictionary 1929, 1588 (1993) (defining “requisition” in part as “act of formally requiring or calling upon someone to perform some action”; defining “order” in part as “a formal written authorization to deliver materials, perform work, or to do both”).
We agree with the judge in the Attorney General’s action that the contract was not void under § 27F, because the contract provision incorporating the requirements of chapter 149 necessarily included the prevailing wage stipulation required by that section.