Commissioner of Labor & Industries v. Worcester Housing Authority

393 N.E.2d 944, 8 Mass. App. Ct. 303, 1979 Mass. App. LEXIS 928
CourtMassachusetts Appeals Court
DecidedAugust 31, 1979
StatusPublished
Cited by7 cases

This text of 393 N.E.2d 944 (Commissioner of Labor & Industries v. Worcester Housing Authority) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commissioner of Labor & Industries v. Worcester Housing Authority, 393 N.E.2d 944, 8 Mass. App. Ct. 303, 1979 Mass. App. LEXIS 928 (Mass. Ct. App. 1979).

Opinion

Dreben, J.

The Worcester Housing Authority (authority) appeals from a judgment upholding the rates set by the Commissioner of Labor and Industries (Commission[304]*304er) for certain CETA1 workers formerly employed by the authority as maintenance aides. The authority was also ordered to make retroactive payments to these employees. The trial judge found that the Commissioner considered himself legally constrained by G. L. c. 121B, § 29, and G. L. c. 149, §§ 26 and 27, to set the rates for the CETA workers at the rate paid to laborers in the construction industry under the collective bargaining agreement which provided for the highest rates. The judge upheld the rates as "not arbitrary.” We reverse because the Commissioner misconceived the extent of his statutory authority in setting the rates.

The essential facts are not in dispute. In 1974, the authority, which owns and operates a number of housing projects in Worcester, learned that it could obtain CETA workers from the city of Worcester at no expense to the authority. The CETA workers were hired to do maintenance work, freeing the authority’s regular maintenance force to handle a backlog of repairs. The plan was for the authority to pay the workers at the rate paid by the city to its CETA workers, namely $3.59 an hour, and then be reimbursed by the city.

The Commissioner claimed, however, that the rates to be paid to the CETA workers were to be determined by him under G. L. c. 121B, § 29. After some correspondence with the authority, he set the rates for the CETA workers at a level significantly higher than the level of rates being paid by the city.2 The rates so set were the same as those set by the Commissioner for the authority’s regular maintenance aides even though the latter were more skilled [305]*305and had more responsibilities. In setting the rates, both for the regular maintenance employees and also for the CETA workers, the Commissioner made no investigation and looked solely to the collective bargaining agreement known to his office to have the highest rates for building construction laborers.

Since the authority had no funds to supplement the city grant, the authority in April of 1976 discharged the CETA workers and terminated the program. The Commissioner brought this action seeking back pay for the discharged workers.

Before reaching the questions of statutory construction raised by the parties, we note that the authority has shown no basis for its claim that the Commissioner’s rate setting powers are preempted by Federal regulations relating to the payment of CETA workers. Section 96.34 of 29 C.F.R. (1978) sets no wage rates but merely provides that CETA workers shall not be paid below certain minimum rates. While the regulations limit the amount of Federal funds which can be paid to a single worker in a given calendar year, they do not limit the amount the employee may receive from other sources. The regulations are not facially inconsistent with G. L. c. 121B, § 29, or G. L. c. 149, §§ 26 and 27, and the authority has not shown any conflict3 or other reason to find Federal preemption.

The Commissioner claims that the rate set for the CETA workers was legally required and that he had no discretion under applicable law to set any other rate. His argument is in two parts. First, he contends that the case of Commissioner of Labor & Indus. v. Boston Housing [306]*306Authy., 345 Mass. 406 (1963), requires him to look solely to the construction industry for the classification of employees, that in the construction industry the closest classification is that of laborer, and that there is no lower classification of worker in that industry. There is, therefore, no point in his making any job comparisons, even though the duties of the authority’s maintenance workers are, in all probability, different from those of laborers in the construction industry. The second part of his argument is that § 26 of c. 149, as amended through St. 1967, c. 296, §§~2 and 3, charges him with setting rates at "not less than the rates” established by collective bargaining agreements. This means that he must select from the family of applicable agreements the one agreement which sets the highest hourly wage rates for construction laborers. Otherwise, if he excludes an agreement which has a higher wage rate than the agreement selected, he is violating a proviso of the statute.

We reject both prongs of the Commissioner’s argument. The primary provision governing this action is G. L. c. 121B, § 29, as amended through St. 1973, c. 1215, §§ 9, 9A.4 The relevant portion appears in the margin,5 and it provides that a housing authority in the administration and development of its projects shall pay its "architects, [307]*307technical engineers, draftsmen, technicians, laborers and mechanics” wages set by the Commissioner, at no less than eighty percent of the "prevailing wage” set "in accordance” with c. 149, §§ 26 and 27. Section 26, also set forth in part in the margin,6 provides, inter alia, that "laborers” employed in the "construction of public works” shall not be paid less than the rate determined by the Commissioner. He is to set the rate for laborers at not less than the rate paid to "laborers in the municipal service of the town” where the work is being constructed, provided that if "a wage rate or wage rates have been established in certain trades and occupations by collective agreements,” "the rate or rates to be paid ... shall not be less than the rates so established.” If no rate has been so established, the wages of “laborers” ... “shall not be less than the wages paid to the employees in the same trades and occupations by private employers engaged in the construction industry” (emphasis supplied).

[308]*308Since c. 149, § 26, relates to the construction of public works and c. 121B, § 29, relates to the development and administration of housing projects, there are some positions within a housing authority for which there is no analogue in the public construction field. This, of course, is the reason for the present dispute with respect to the rates for the CETA maintenance workers. A similar problem arose in Commissioner of Labor & Indus. v. Boston Housing Authy., 345 Mass. 406 (1963), where the Boston Housing Authority challenged, inter alia, the authority of the Commissioner to set rates for janitors under c. 121, § 26T (as amended through St. 1960, c. 491), which, in relevant part, is the same provision as the portion of c. 121B, § 29, applicable here.7 The court held that § 26T “must be construed as authorizing the [CJommissioner to set wage rates for all the lower paid employees,” (id. at 417) including janitors, even if there were no category in the construction field comparable to that of a janitor. The court also said that since the Legislature specifically referred to the prevailing wage under c. 149, § 26, rather than to a standard for maintenance workers, “the Commissioner under § 26T may reasonably use a rate of eighty percent of the prevailing wage rate of the most nearly comparable class of construction worker, giving due consideration to the differences and similarities in ... skills .. . hazards, .. . responsibilities ... and similar matters. On this record, we cannot say that the [CJommissioner erred in setting the rates for janitors . . .”8

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Bluebook (online)
393 N.E.2d 944, 8 Mass. App. Ct. 303, 1979 Mass. App. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioner-of-labor-industries-v-worcester-housing-authority-massappct-1979.