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Cipparulo v. David Friedland Painting Co.

Decided: February 4, 1976.

ALEX CIPPARULO, PLAINTIFF-APPELLANT,
v.
DAVID FRIEDLAND PAINTING CO., INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



Matthews, Lora and Morgan.

Per Curiam

This is an action brought under the New Jersey Prevailing Wage Act (PWA), N.J.S.A. 34:11-56.25 et seq. , by plaintiff as business representative of Painters Local 480 and on behalf of Local 480 members who worked for defendant, a subcontractor on three Rutgers University public projects in Piscataway, New Jersey. The trial judge, sitting without a jury, decided for defendant and plaintiff appeals.

Defendant (Friedland) is a union painting subcontractor which performed work on three separate building projects on the Rutgers University campus in Piscataway Township, Middlesex County, New Jersey. Plaintiff is the business representative of Painters Local 480, members of which performed work for the plaintiff on these projects. He instituted this action against Friedland under the PWA for $3,056.95 (plus interest, costs and attorney's fees) which is derived by multiplying 4,703 work hours between September 1, 1971 and May 1, 1972 (a stipulated total) by 65 cents an hour (the difference between $7.20 and $7.85). The source of these figures is hereinafter explained.

Under N.J.S.A. 34:11-56.25:

It is declared to be the public policy of this State to establish a prevailing wage level for workmen engaged in public works in order to safeguard their efficiency and general well being and to protect them as well as their employers from the effects of serious and unfair competition resulting from wage levels detrimental to efficiency and well-being. [ L. 1963, c. 150, § 1.]

The definitions in N.J.S.A. 34:11-56.26 make it clear that Rutgers University is a "public body," that the projects in

question were "public works," that Middlesex County is a "locality," and that the members of Local 480 who performed work on the projects are "workmen." N.J.S.A. 34:11-56.28 requires that any public body awarding any contract for public work shall ascertain from the Department of Labor and Industry the prevailing wage rate in the locality in which the work is to be performed for each craft or trade needed to perform the work, and shall specify in the contract itself what that rate actually is. N.J.S.A. 34:11-56.27 requires that every contract in excess of $2,000 for public work to which a public body is a party shall contain a provision to the effect that all workmen on the project be paid no less than the prevailing wage rate. Any worker paid less than that rate may recover the difference in a civil action (plus costs and reasonable attorney's fees). Further, any agreement between such workers and the employer to work for less than the prevailing rate is no defense to such an action. Id.

The provision which is the center of controversy in this action concerns the establishment of the prevailing wage rate by the Commissioner of the Department of Labor and Industry (Commissioner) N.J.S.A. 34:11-56.30 provides:

The commissioner shall determine the prevailing wage rate and forthwith shall establish the prevailing wage in the locality in which the public work is to be performed for each craft or trade or classification of all workmen needed to perform public work contracts. The prevailing wage shall be determined and computed in accordance with rules and regulations issued by the commissioner as may be required to carry out the provisions of this act; provided, however, that employer contributions for employee benefits pursuant to a then existing bona fide collective bargaining agreement shall be considered an integral part of the wage rate paid by employers of any craft or trade in the locality under consideration for the purpose of determining the prevailing wage under this act. Said wage determination shall be conclusive for a period of 2 years from date of issuance unless superseded within said 2-year period by a later determination. The commissioner shall forthwith announce all said determinations and give notice by mail of all determinations of prevailing wage rates made pursuant to this section to any representative of any craft or trade, any employer, or any representative of any group of employers who shall in writing request the commissioner so to do. [ L. 1963, c. 150, § 6; emphasis added]

It is the meaning of the italicized sentence which is before us for determination on this appeal.

Rutgers University entered into construction contracts for three separate buildings with Gumina Building and Construction Co. and with Branciforte Buildings, Inc. The two prime contractors then entered into subcontracts with defendant as follows: January 26, 1970 -- Academic Building -- Livingston College (Gumina); July 22, 1970 -- Rutgers ...


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