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Donis v. American Waste Services, LLC

Appeals Court of Massachusetts, Norfolk

May 22, 2019

ELMER DONIS & others[1]
v.
AMERICAN WASTE SERVICES, LLC, & others.[2]

          Heard: December 12, 2018.

         Civil actions commenced in the Superior Court Department on August 1, 2012, and February 21, 2013.

         After consolidation, a motion for partial summary judgment as to liability only was heard by Brian A. Davis, J.; pretrial motions were heard by him; and entry of final judgment on stipulated damages was ordered by him.

          Gregory V. Sullivan (Michael P. Morizio also present) for the defendants.

          Nicole Horberg Decter for the plaintiffs.

         The following submitted briefs for amici curiae:

          Maura Healey, Attorney General, & Karla E. Zarbo, Assistant Attorney General, for the Attorney General.

          Joseph L. Sulman for Massachusetts Employment Lawyers Association.

          Liliana Ibara & Joseph J. Michalakes, Greater Boston Legal Services, for Immigrant Worker Center Collaborative.

          Present: Vuono, Hanlon, & Shin, JJ.

          SHIN, J.

         The plaintiffs brought this action to recover prevailing wages they say are owed to them under G. L. c. 149, § 27F, which mandates payment of a specific minimum wage for certain public works contracts. Judgment entered for the plaintiffs, and the defendants appeal, raising numerous issues. Chief among them are (1) whether § 27F requires, as a condition precedent to liability, that the public authority awarding the contract obtain a wage rate schedule from the Department of Labor Standards (department) concurrently with execution of the contract, and (2) whether the plaintiffs can recover for damages they incurred outside § 27F's three-year statute of limitations by bringing a common-law claim for breach of contract as intended third-party beneficiaries. As to the first issue, we conclude that a concurrent rate schedule is not a statutory prerequisite to imposing liability under § 27F, which is a strict liability statute that requires employers to stipulate in the contract to pay their employees the prevailing wage. But as to the second issue, we agree with the defendants that, in the precise circumstances of this case, § 27F preempts[3] the plaintiffs' common-law breach of contract claim, barring them from recovering outside the three-year limitations period. We therefore affirm in part and reverse in part.[4]

         Background.

         1. Facts and statutory background.

         The following facts are undisputed or taken from the plaintiffs' statement of material facts in support of summary judgment, which the judge deemed admitted.[5]

         AWS is a limited liability company engaged in waste collection, recycling, and disposal. At all relevant times, Christopher Carney and Michael Galvin were co-owners and officers of AWS. Carney served as AWS's president, while Galvin served as vice-president.

         Variously from August 2006 to December 2011, the plaintiffs worked on AWS's disposal trucks as "shakers," referred to in the industry as such because of the nature of their work, consisting primarily of loading the trucks with waste materials and operating hydraulic levers to compact the materials. AWS employed the plaintiffs under contracts it had with the towns of Foxborough, Franklin, Medway, and Wrentham. Each contract required AWS to comply with the prevailing wage law, [6] including G. L. c. 149, § 27F, which applies to public works contracts involving the use of "trucks, vehicles or equipment." Section 27F mandates that employers pay wages to "operators of said trucks, vehicles or equipment" according to a rate schedule issued by the department:

"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, [7] 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."

         Section 27F also authorizes private rights of actions by aggrieved employees:

"An employee claiming to be aggrieved by a violation of this section may, . . . within [three] years after the violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits. An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys' fees."

         As the department has explained in an opinion letter, it derives wage rates for "solid waste and recycling collection and hauling" by first "look[ing] to collective bargaining agreements between employers and organized labor." For cities or towns not covered by a collective bargaining agreement, the department will request from them information regarding "[t]he current hourly pay scales showing step increases and date graduations for Heavy Equipment Operators and Laborers for the city or town employees," as well as health plan information. The department will then input this information into its "Prevailing Wage database, which generates the wage rate schedule."

         Although all the original contracts at issue were accompanied by a wage rate schedule, the awarding authorities did not consistently request that the department issue an updated schedule when the contracts were renewed or extended. As a result, some were accompanied by a concurrently issued rate determination, while others were not. For those that were not, after litigation commenced, counsel for the plaintiffs asked the department to retroactively calculate the prevailing wage rates applicable to those contract years. The department then requested and obtained from the awarding authorities "[t]he hourly pay scales that were in effect for the requisite year, showing step increases and date graduations for Heavy Equipment Operators and Laborers for the city or town employees." Based on this information, the department calculated the prevailing wage rates for each of the contract years in question.

         In the relevant timeframe, [8] the prevailing wage rates as determined by the department ranged from $20 per hour to $24.81 per hour. The defendants paid the plaintiffs significantly less, between $16 and $17 per hour.

         2. Procedural history.

         The plaintiffs raised the following claims, among others: nonpayment of the prevailing wage, in violation of G. L. c. 149, § 27F; nonpayment of wages owed, in violation of the Wage Act, G. L. c. 149, § 148; and breach of contract as intended third-party beneficiaries. The plaintiffs filed a motion for partial summary judgment as to liability on only the statutory claims, which the judge allowed. As most pertinent here, the judge made the following rulings: (1) the defendants were required to pay the prevailing wage under § 27F; (2) there was no genuine dispute of material fact that the defendants did not pay the prevailing wage during the relevant timeframe; (3) any failure by the awarding authority to request a current wage rate schedule did not absolve the defendants of liability; (4) Carney and Galvin were personally ...


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