Heard: December 12, 2018.
actions commenced in the Superior Court Department on August
1, 2012, and February 21, 2013.
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
Horberg Decter for the plaintiffs.
following submitted briefs for amici curiae:
Healey, Attorney General, & Karla E. Zarbo, Assistant
Attorney General, for the Attorney General.
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.
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 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.
Facts and statutory background.
following facts are undisputed or taken from the
plaintiffs' statement of material facts in support of
summary judgment, which the judge deemed
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
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,  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,  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."
27F also authorizes private rights of actions by aggrieved
"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."
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
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.
relevant timeframe,  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.
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 ...