This is an action brought under the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25 et seq. (Wage Act) by the Commissioner of Labor and Industry of New Jersey as trustee for aggrieved employees on a public works project. The action is in two counts. The first count is against Maple Contractors, Inc., a corporation of New Jersey (Maple), for an order (1) compelling Maple to produce its books and records in accordance with the requirements of N.J.S.A. 34:11-56.31; (2) imposing the statutory penalty of $500 under N.J.S.A. 34:11-56.35 for Maple's alleged willful refusal to furnish its payroll records, and (3) directing Maple to remit to plaintiff as trustee an amount of money representing the difference between the amounts actually paid to the workmen on the public works project and compensation that should have been paid under the Wage Act.
The second count is against Pompton Lakes Borough Municipal Authority (Authority) for its failure to include the prevailing wage rates in its contract with Maple, as required by N.J.S.A. 34:11-56.28. Under that section of the Wage Act the Authority has the responsibility to specify in its agreement with the contractor the prevailing wage rate in the locality for each craft or trade or classification of all workmen involved in the project.
"'Prevailing wage' means the wage rate paid by virtue of collective bargaining agreements by employers employing a majority of workmen of that craft or trade subject to said collective bargaining agreements, in the locality in which the public work is done." N.J.S.A. 34:11-56.26(9).
The Authority's failure to specify the prevailing wage rate allegedly constitutes a violation of a mandatory requirement of the Wage Act and renders it jointly and severally liable
with Maple for the wage deficiencies. Maple cross-claims against the Authority for indemnification.
Pursuant to the Municipal Utilities Authorities Law, N.J.S.A. 40:14 B -1 et seq., the Borough of Pompton Lakes created a municipal utilities authority by ordinance adopted by its municipal council on October 7, 1964. Thereupon the Authority undertook to complete the construction of Stage I of a sanitary sewer system for which the borough had let several contracts in 1963. In 1965 the Authority sought bids on Stage II of the program, but in submitting its contract specifications failed to include the prevailing wage schedule. Maple was the successful bidder, and on June 11, 1965 it executed a contract with the Authority in connection with certain construction for Stage II of the system.
While the job was in progress the Wage and Hour Bureau of the New Jersey Department of Labor and Industry endeavored to inspect the payroll records of Maple but without success. The contract has been completed and the employees of Maple, through the Commissioner of Labor and Industry, have instituted the present action.
When the contract was executed, N.J.S.A. 34:11-56.26 (4) defined a "public body" which would be subject to the provisions of the Wage Act as follows:
"'Public body' means the State of New Jersey, any of its political subdivisions, except municipalities having a population of less than 45,000, any authority created by the Legislature of the State of New Jersey and any instrumentality or agency of the State of New Jersey or of any of its political subdivisions." (Emphasis supplied)
(Subsequent to the execution of the contract in question, the statute was amended (L. 1966, c. 118, § 1) so as to except municipalities having a population of less than 25,000.) The Borough of Pompton Lakes has a population of about 12,000. The critical question is whether defendant Authority, created by a municipality which is clearly excepted from the mandate of the statute, is likewise excepted.
In Parking Authority of Trenton v. Trenton, 40 N.J. 251 (1963), the parking authority contended that as a political subdivision of the State and as agency and instrumentality of the city, it was exempt from paying the municipal building permit fee. The court, finding no express or implied provision in the Parking Authority Law (N.J.S.A. 40:11 A -1 et seq.) exempting a parking authority from the city's building code requirements, stated that had the Legislature intended to exempt an authority from municipal building regulations requiring the payment of a fee for a building permit, a provision to that effect could readily have been included in the law. The absence of such a provision leads to the conclusion that the Legislature intended no such exemption to exist. The same view is expressed in Wall v. Hudson County Park Commission, 80 N.J. Super. 372 (App. Div. 1963) where the question arose as to whether a county park commission was exempt from liability for personal injuries resulting from use of public grounds for the reason that it was the agency of the county which was exempt. The court held that the exemption afforded by the statute in question did not ...