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Horn v. Serritella Bros. Inc.

Decided: June 2, 1983.

JOHN J. HORN, COMMISSIONER OF LABOR AND INDUSTRY, PLAINTIFF-APPELLANT,
v.
SERRITELLA BROS., INC., DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

Ard, King and McElroy. The opinion of the court was delivered by Ard, P.J.A.D.

Ard

This appeal involves an interpretation of a section of the Prevailing Wage Act, N.J.S.A. 34:11-56.25 et seq. (the act). Specifically, the question is whether, under the circumstances of this case, certain employees of the defendant are within the definitional section of the act which defines "workmen." We are satisfied the duties of the employees in question bring them within the ambit of the statute thus requiring reversal of the determination below.

The commissioner of the New Jersey Department of Labor and Industry instituted an action against the defendant company (Serritella) charging it with failure to pay 12 of its workers the prevailing wage for their work on a public project for which Serritella was a subcontractor. Serritella denied liability and claimed the workers were not entitled to the prevailing wage because their duties did not come within the definition of the statute.

The City of Newark was engaged in the reconstruction of various city streets. The work included the excavation and disposal of existing sidewalks. The general contractor hired Serritella to haul the pavement debris from the work sites to dumping areas. It is not disputed that Serritella's drivers drove trucks to the work site and waited while others loaded the trucks and then drove the loaded trucks to the dump sites. The drivers received $5.50 per hour as opposed the prevailing rate of $9.35 per hour. The commissioner's complaint sought to enforce the act and collect $22,022.58 which represents the differential in the wage rates.

The parties filed cross-motions for summary judgment, and the trial judge held that defendant's drivers were exempt by virtue of their functional identity with "material suppliers" whom the act specifically exempts. He ruled that Serritella's employees had performed no services at the job site, and therefore, were not workmen within the meaning of the statute.

The Prevailing Wage Act, N.J.S.A. 34:11-56.25 et seq., expresses this State's public policy as follows:

This court has perceived the act's purpose as follows:

The prevailing wage rate is a minimum wage rate and is unquestionably designed to protect union contractors from under-bidding on public work by their non-union competitors who conceivably would have the advantage of paying their labor nonunion wages. . . . Its purpose is to insure that the prevailing wage rate existing at the time of the signing of a public contract constitutes the minimum wage paid to workers under that contract. [ Cipparulo v. Friedland, 139 N.J. Super. 142, 148 (App.Div.1976)].

The act is remedial in nature and thus "is entitled to a liberal construction and application in order to effectuate the strong public policy of protecting those whose labor goes into public projects." Newark Laborers' v. Comm. Union Ins. Co., 126 N.J. Super. 1, 8 (App.Div.1973); accord, Central Constr. Co. v. Horn, 179 N.J. Super. 95, 104 (App.Div.1981).

The act operates by requiring that all public-works contracts over $2,000 contain a provision mandating payment of a stated prevailing wage "to the workmen employed in the ...


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