Volume 41, Issue 4 - April 2006
New York State Court of
Appeals Rules Against Glaziers
On December 15, 2005, the New York Court of Appeals affirmed the decision of the Supreme Court, Appellate Division, Third Department in the matter of Marke Lantry, doing business as Thorough Job Architectural Construction Systems v. State of New York, et al. In this case, the plaintiff subcontractor’s employees working on a public school project attached pre-glazed windows to concrete. The plaintiff paid the employees at a glazier’s rate, which was challenged by the New York State Department of Labor (DOL). DOL contended that the employees should be paid at an ironworker’s rate—a significantly higher rate—and assessed the plaintiff for an underpayment of $5,400 of prevailing wages as required by Labor Law Section 220 (see related article in the March 2004 USGlass, page 18).
Rejecting the plaintiff’s contention that DOL should consider survey evidence of local contractor practices in making trade classifications, the court held that the DOL’s determination was neither arbitrary nor capricious. The court approved the DOL’s methodology of adopting classifications assigned in collective bargaining agreements or where a dispute arises, as in this case, between two unions each claiming jurisdiction over the same work. It expanded its review to encompass jurisdictional agreements, past precedent and the “inherent nature and characteristics of the work in question.”
Judge Smith, the sole dissenter, stated “…to defer to the Department’s decision to be guided by the ‘intrinsic nature of the work’ in preference to prevailing practices is to defer to an approach that fundamentally makes no sense.”
John Dwyer, president of Syracuse Glass, based in Syracuse, N.Y., said the recent defeat was a disappointment for the glaziers.
“I feel that Lantry and the other glazing contractor firms were severely wronged by the Department of Labor. These honest business operators, and members of good standing in our industry, paid the glaziers prevailing wage to their employees on public projects for decades in good faith, at times with the specific written approval of the Department of Labor,” said Dwyer.
“To cite these firms for not paying the ironworkers prevailing wage for work done in the 1990s, to withhold penalties from current payments and to make these contractors wait up to a decade for a hearing while having the funds withheld, to change the way the department has traditionally made classification decisions seems like ‘arbitrary and capricious’ behavior to me, but it did not meet that high burden in the opinions of six of the seven justices on the court of appeals.”
He also said this particular case is only one of 64, all relating to the prevailing wage rate. Cases cannot be heard, though, until they go through administrative hearings.
“We went as far as we could [with this case],” added one glazier speaking under anonymity. “It happened, and now it will filter down through the DOL. We’ve been battling this for years.”
OSHA Issues Final Standard on Hexavalent Chromium
The Occupational Safety and Health Administration (OSHA) has published a final standard for occupational exposure to hexavalent chromium, reducing the acceptable levels of workplace exposure of hexavalent chromium from 52 micrograms per cubic meter of air to 5 micrograms per cubic meter of air.
Hexavalent chromium is used in chrome plating, stainless steel welding and the production of chromate pigments and dyes. According to the Associated Press, an estimated 558,000 workers are exposed to its airborne particles that have been linked to lung cancer.
Bill Fleming, the director of environmental, health and safety for Kawneer North America, explained that chromium containing compounds are also used in the finishing process for many commercial construction products, such as curtainwall, and until last year, the American Architectural Manufacturers Association (AAMA) dictated the use of chrome containing pretreatments in its high-performance paint systems as specified in AAMA 2605.
“Chrome is effective in preventing corrosion to the aluminum substrate, particularly in aggressive environments, such as coastal exposures. This is because chromium, in different forms, enhances the adhesion of the coating and is very effective in resisting corrosion,” said Fleming.
The new requirement “substantially reduces the significant health risks” for employees exposed to the material, said Jonathan Snare, acting assistant secretary for OSHA.
In a conference call with reporters, Snare said the 5 microgram permissible exposure level, or PEL, “is the lowest level that is feasible both technologically and economically.” He said the standard would cost industry $282 million a year to implement.
Considering the massive amount of products produced annually for commercial construction projects, what impact will this new standard have on that aspect of the industry?
“It’s certainly going to help our members because hexavalent chromium is a high carcinogen,” said Dan Penskie, health and safety manager for the International Union of Painters and Allied Trades (IUPAT). “We didn’t get it [the new requirement] down to 1 microgram per cubic meter, which would be perfect,” said Penskie, adding, “I don’t know if we will ever get it down to 1 microgram per cubic meter. I think we will always be fighting to lower all standards to protect members and their families.”
Penskie said that with exposure levels being lowered, protection can be given to the association’s members through engineering controls.
According to Fleming, Kawneer is currently conducting tests to evaluate the feasibility of offering more hexavalent chromium-free products while maintaining high corrosion resistance.
“Chromium contained in the product is permanently encapsulated and should not result in any exposure. Products are available that contain no chromium in the finishing process and other products that contain no hexavalent chromium,” Fleming added.
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