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Niles v. Huntington Controls, Inc.

Appeals Court of Massachusetts, Norfolk

July 31, 2017

ADRIAN NILES
v.
HUNTINGTON CONTROLS, INC., & another. [1]

          Heard: January 12, 2017.

         Civil action commenced in the Superior Court Department on November 22, 2013.

         Motions for summary judgment were heard by Thomas A. Connors, J.

          Joseph L. Sulman for the plaintiff.

          Stephen P. Kolberg for the defendants.

          Present: Kafker, C.J., Hanlon, & Agnes, JJ.

          AGNES, J.

         The Massachusetts prevailing wage law, G. L. c. 149, §§ 26-27 (prevailing wage law), is designed "to achieve parity between the wages of workers engaged in public construction projects and workers in the rest of the construction industry." Mullally v. Waste Mgmt. of Mass., Inc., 452 Mass. 526, 532 (2008). Under this law, the "rate per hour of the wages" paid to "mechanics and apprentices, teamsters, chauffeurs and laborers in the construction of public works" may not be less than "the rate or rates of wages" determined by the commissioner of the Department of Labor Standards (department). G. L. c. 149, § 26, as amended by St. 1967, c. 296, § 3. The commissioner determines the minimum rate by preparing a classification of "the jobs usually performed on various types of public works" by "mechanics and apprentices, teamsters, chauffeurs and laborers" employed in such construction. G. L. c. 149, § 27, as amended by St. 1967, c. 296, § 4.[2] The commissioner is authorized to "revise such classification from time to time, as he may deem advisable." G. L. c. 149, § 27, as inserted by St. 1935, c. 461, § 27.

         In the present case, Adrian Niles filed a four-count complaint in the Superior Court alleging a violation of the prevailing wage law (count one), breach of contract (count two), breach of the covenant of good faith and fair dealing (count three), and unjust enrichment (count four). The judge allowed a motion for summary judgment filed by the defendants, Huntington Controls, Inc., and its president, Paul Milano (collectively, Huntington), on all four counts and denied Niles's cross motion for partial summary judgment on liability under count one. Niles appealed. The sole question presented is whether the judge was correct in ruling that Huntington did not violate the prevailing wage law because none of the work performed by Niles for Huntington was subject to the prevailing wage law. We conclude that the judge erred in failing to give appropriate deference to opinion letters issued by the department that stated that the work performed by a heating, ventilation, and airconditioning (HVAC) technician such as Niles, who, while onsite, installs software in HVAC components and then tests those components to ensure that they operate properly, is employment "in the construction of public works" and thus is subject to the prevailing wage law. Because it is undisputed on the record before us that at least some of the hours worked by Niles for Huntington involved such activity, it was error to deny his motion for partial summary judgment and to grant summary judgment to Huntington on count one.[3]

         Background.

         The essential facts are not in dispute. In September, 2009, Niles began working for Huntington as a non- union, full-time HVAC "controls technician."[4] For approximately three years, Niles worked primarily on two of Huntington's public construction projects: the Sharon Middle School and the Parker Elementary School. He worked approximately 3, 200 hours between those projects, for which Huntington paid him thirty-four dollars per hour from September, 2009, to October, 2012, and thirty-six dollars per hour from October, 2012, to October, 2013, when he voluntarily left Huntington's employment.

         Although the parties do not agree as to all the work activities that were performed by Niles as an HVAC technician, it suffices to say, as the judge below recognized, that at least some of the duties he performed were onsite and included downloading programs to the HVAC system controllers and performing certain tests required to ensure the controllers worked properly. For example, Niles would use a program to turn exhaust fans on and off, in order to ensure that they operated as intended when they received the proper signals. There is evidence that occasionally he would "switch out" a malfunctioning component with one that worked.[5] It is undisputed that the majority of the hours Niles worked on the two school projects were identified by Huntington as work performed under the service code "1-003, Tech/Commissioning."[6] It is also undisputed that he performed this work on those systems after the components were installed and wired by the electricians, but before they were turned over to the customer for operation. There was evidence that another subcontractor also performed testing services after Huntington completed its work.

         At least once, prior to turning over the systems to the customer, Huntington required Niles to be onsite to "go over our punch list [items] and functionally test our systems." On that occasion, he was requested by name to be onsite to "go through the systems with [his supervisor]" and "to be available to correct any issues we find." From the record, it is undisputed that any system Niles worked on would not be turned over to the customer until fully tested and operational. However, this work did not comprise the totality of Niles's duties, and there is evidence that his job duties entailed work other than that described above. For example, Niles's job description, as provided by Huntington, also included duties such as "trains customers on system operations, " and "works with equipment vendors to coordinate communication protocols." The record is not clear as to exactly how much of Niles's job consisted of the technician work described above, and how much was not.[7]

         Discussion.

         1. Standa ...


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