-: SJC-13407, Russell Metcalf
and another VBSD group, Inc. and All.
(door thuds shut)
-: Okay, attorney LaSalle, whenever you're ready.
-: Thank you, Madam Chief Justice,
and may it please the court.
Although the substance of this case focuses on the fairness
of wages that are paid to hardworking laborers,
at a structural level, it raises a very simple question.
May an employer in an agency craft a contract
that exempts them from a law
that is meant to constrain them?
This court's faced that question in other contexts,
and each time, it has answered no.
It should do so again here for three reasons.
First, the prevailing wage- -: I don't know
if that's really the right question.
I mean, the prevailing wage law, you know,
it's designed, you've got these public bids
on these public construction projects, right?
You don't wanna have the non-union companies
losing out each, I mean,
the union companies losing out each time
'cause they pay their laborers less
than the non-union companies.
So you create this wage scale to even the playing field
so that low bid contracts don't always go
to non-union contractors.
This is totally different.
This is a procurement services, a services contract,
not for particular public bid
but for surveying services on multiple projects.
No one's gonna lose out because their union
or non-union on this.
It's a quality issue when you set the prices separately.
So I don't even look at this as we're dealing
with apples and oranges here.
-: So, your Honor,
the Prevailing Wage Act is intended
to protect employees' interest in a fair wage.
-: It's meant to protect public bidding contracts
on construction to level the playing field.
-: Construction projects. -: Projects.
-: Correct, and what we have here
are two laborers who worked for four and a half years
on three dozen construction projects.
We know that from the description of the work
that they performed from MassDOT's own witness.
We know that from the language of the contract.
If you look at the 2012 contract at JA 223,
it says that it is to support the construction phase
of bridge and roadway projects
across the state of Massachusetts.
So on its plain terms, the statute applies
to the work that these laborers perform,
and that is actually the correct inquiry
is does the Prevailing Wage Act apply?
We answer that by looking at the work performed
and not the words of the contract.
-: That's the problem. It's the work performed.
It's not specific to one project,
which is a problem for you.
The statute provides for the request
for proposals to come first,
and then you negotiate the compensation later,
which is inconsistent with the prevailing wage law.
It's for professional services you do
for quality assessment, not for labor,
and the compensation is not some schedule
of the prevailing wage law.
It's the agency taking a look at what
is the appropriate pay based on an assessment
of the professionals.
So you're dealing with,
I guess I would quote Justice Kafker, "apples and oranges."
This just isn't a prevailing wage project.
This is a contract for professional services,
and the statute 7C includes,
"Such professional services
include construction phase services."
-: Your Honor, it does say that in Section 58,
but there's a very important limiting word.
When we look at Section 58
and the portion that you just alluded to,
it refers to related professional services,
which means related to what.
And when you look at- -: Surveying.
You need to do land surveying, mapping.
-: Yes, your Honor.
If those services- -: Those surveys.
-: If those services are related
to architectural or engineering services.
If you look to the title of Section 58 itself,
it tells you that it's procurement
of architectural, engineering, and related services.
So we would agree, and we wouldn't be here
if the work performed were land surveying work performed
to support the design phase
of a public works construction project.
But based on this record,
we cannot say that that's an undisputed fact.
In this case, there are facts from which a jury
could reach the conclusion that the work performed
on some or all of the sites was construction work.
Now, 58, the purpose of that statute-
-: There was a contractor on those, right?
Your client is working alongside people who are part
of the bidding process for that project, right?
-: Correct, your Honor. -: It's not
like we're excluding all surveyors
from the prevailing wage laws.
We're just saying when we bid the contract, you know,
the guys working for those contractors are doing that,
but this is like the DOT's group
of who are sort of working alongside them,
but they're serving a different function.
They weren't part of the bid.
They're part of DOT's, you know,
professional team that works alongside that.
It just seems to me different. -: You know, your Honor,
I think there are some disputes of fact about that,
but you did hit on a very interesting point
that I think is important to recognize,
which is that DOT could have bid this out
as part of the construction contracts,
and, in fact, sometimes it did.
There's evidence in the record from Paul Tivnan,
one of the supervisors at MassDOT at JA 606 to 609,
where he even admits that sometimes that contractor,
the construction contractor did have their own surveyors
on the site, and Mr. Metcalf
and Mr. Thurr did their work for them instead.
In other words, individuals who were meant
to be paid the prevailing wage sat on the bench
while two people were paid a third
of what they were to do the same work.
So I think from this factual record,
it's too difficult to say that it is undisputed
that the work here- -: But the contract
that we're talking about said that there would be crews
to provide surveys for roads and bridges,
and then it said "as needed."
That's not one project, public project that we think of
when we think about the prevailing wage law,
to provide survey for roads and bridges as needed,
survey crews as needed.
-: Yes, your Honor, and two things to know about that.
First, the place where they were deployed,
where Mr. Metcalf and Mr. Thurr were deployed
was on construction sites.
You know, to the extent any of their work
may have been deployed to a design phase project
or to post-construction work,
then we would agree that that
would not be prevailing wage eligible.
But where in this contract,
some of the work that was actually performed
is construction work,
that work should receive the prevailing wage.
So it's conceivable, your Honor,
that you could have a contract
that covers as needed services,
and some of those services are on a construction site,
and some of those services are on a pre-construction site.
Under those circumstances,
the Prevailing Wage Act requires
that we pay the prevailing wage
for prevailing wage eligible work.
The other thing I would note- -: Can I shift you
to a couple of issues?
We included this language about strict liability
in a couple of our decisions was that just dicta?
Does the legislation itself
say it's a strict liability statute,
or is there anything in the legislative history?
It's odd terminology to appear in a labor statute
as opposed to a tort statute.
-: It does appear in a few
of the legislative enactments involving labor,
but the way that the strict liability regime
is imposed in this case- -: No, but does,
again, we use the word strict liability.
I understand that. The SJC did that.
-: Correct. -: Was that based on anything
in the statute or did we just characterize this
as a strict liability statute?
-: It's based on the fact that the statute says that,
"whoever shall pay less," in unequivocal words,
"whoever shall pay less than the prevailing wage
so established shall be liable."
-: That's the basis of strict liability?
-: I believe so, your Honor,
and that's important language because what that does
is it turns the employer into an efficient enforcer
of the Prevailing Wage Act.
When you think about how these contracts are negotiated,
you have an agency or a municipality
on one side of the table and an employer on the other.
The employees, the people who are entitled
to the protections of this act,
don't have a seat at the table,
and so to ensure that their interests are protected,
imposing strict liability
on an employer aligns that employer's incentives.
-: Here, the actual public entity,
the Department of Transportation,
doesn't think it's a prevailing wage contract,
doesn't include the prevailing wage requirements,
and the company, which is not bidding on, again,
a public construction project but on a services contract,
should know that it prevailing wages
and should pay those prevailing wages,
even though they have no idea what they are?
It just seems like that's punishing
when the state government
doesn't even think it's a prevailing wage contract.
-: Not at all, your Honor.
I think that there's two important factors
to keep in mind here.
First, as your Honor noted,
we know from the red briefs in this case
that DOT made the decision on its own
that the prevailing wage shouldn't apply,
but the statute is clear.
That's not DOT's decision to make.
If the work to be performed touches a public works project,
you must ask DLS.
DLS makes determinations of whether it applies or not.
-: Did you ask DLS?
I'm gonna ask your brother whether DLS has weighed in here,
but did your clients ask DLS also?
I mean, DLS is like strangely absent here.
-: I would agree that it's strange to see DLS absent.
You would think that the easiest way to resolve this
would've been if DLS had issued a determination early on
in the case.
I'm not really sure what we should infer from the fact
that we're now TSJC and we still haven't heard from them,
but I will note that employees,
this court has explained in the past,
do not have the authority to go to DLS
and ask for a wage determination.
But we know from the record that DOT can and,
in fact, must, and we know that employers can,
if you look in the record at JA 478 to 80-
-: So you're forbidden from asking?
I understand you say they have an obligation,
but also, we had litigation.
Did anyone seek to depose them or anything? No.
-: Your Honor, it's not trial counsel,
but to my knowledge, is nothing in the record indicating
that anyone sought to depose someone from DLS.
Instead, the court can and should be guided
by DLS's prior determinations
in the context of field engineers.
-: And he's gonna get up and distinguish that,
and it's pretty far removed from this, but go ahead.
-: Under the DLS opinions that have issued in the past,
starting with CAT through the ICF Kaiser decisions
into the 2011 decision,
DLS has been consistent that the way that you determine
whether prevailing wage applies is you look
at the type of work and the phase
that the public works project is in.
If it's design phase,
then the prevailing wage does not apply.
That we know from CAT.
But if it's construction phase and it's work
that is done in aid of construction,
then that prevailing wage would apply.
Now, I wanna go back,
and I wanna acknowledge something else your Honor said,
which is that it may feel counterintuitive
to hold an employer liable, and I can see that perspective.
The challenge is, though, that's how the statute is written.
The statute imposes liability on whoever fails-
-: Certainly not how it's been interpreted
by the District Court of Appeals, whatever it's called,
all the federal courts.
The McGrath decisions rule the exact opposite.
So we would be overruling that, which we can, of course,
but it's going certainly against a lot
of the case law out there, -: You can-
-: except for this recent appeals court decision,
which distinguishes 27 from 27F,
which is an interesting distinction.
-: The court can and should actually overrule McGrath
in its progeny because the core flaw
that led the Superior Court astray here also led the court
and McGrath and those that followed McGrath astray,
and the issue is the strict liability regime
applies regardless of the intent,
regardless of why an employer failed to pay,
and we know that because,
as the Superior Court held earlier in the case, the-
-: That's a different issue, I guess.
You know, once it is determined
that the Prevailing Wage Act controls,
then the employer is liable, maybe even if, is it DLS?
-: Yes. -: Doesn't issue a schedule.
My question is when do we determine
when the Prevailing Wage Act applies?
You say it's if it touches construction
during the construction phase.
Why is that the test?
-: So if I understand your Honor's question,
it's when do we decide whether
to ask about the prevailing wage?
-: No. When does it apply?
-: It applies if the work that employees, laborers,
apprentices, et cetera, are performing is construction work.
There's nothing in Section 27
that conditions its applicability
on the words of a contract or on-
-: So here, you know, they say it's consulting work,
you know, and it was, you know, not bid by project.
It was instead the request for proposal was related
to the qualifications of the various vendors
who were vying for this,
not based on total cost of the project.
-: Correct, your Honor, but- -: Why is that not the test?
-: As the court noted in Tomei,
one of the cases that BSC cites,
nothing in Section 27 requires that the bidding process
be a low bid basis for the prevailing wage to apply,
and that's because it turns on the type of work done.
They also noted that nothing in the Prevailing Wage Act
requires a specific citation to a specific rule,
and that's why the citation of Section 58
in the later of the two contracts doesn't carry
as much water as I think it appears it might
from the red briefs.
-: I mean, couldn't you have two surveyors?
The Commonwealth may want its own surveyor
as well as the contractor
because we don't want the contractor to go build on places
that he or she's not supposed to build, right?
So we're gonna have our own surveyor double checking
and making sure our people stay within their bounds.
We don't want somebody who works
for the construction company making those calls.
So even though they're both working at the same place,
they may be performing different functions.
One's checking to make sure you
don't go build the building in the wrong place, right?
-: I think so, and you could have those circumstances.
I think the challenge here is that there
are factual disputes that would preclude us
from saying definitively, that it is undisputed,
that the work that Mr. Metcalf and Mr. Thurr
were doing was construction, was quality assurance work.
If, for example, the only sites that they worked on
were post-construction, right, or design phase,
then sure the prevailing wage wouldn't apply to that work.
But as BSC noted in its summary judgment brief,
in this case on these facts,
it is a fact-intensive inquiry
as to which work the plaintiffs performed
that should garner the prevailing wage.
With those disputes,
summary judgment should not have entered
but for the error of placing dispositive weight
on the language of the contracts instead of looking to-
-: Right, we do get to that other issue,
which, I mean, DONIS only matters
if 7C doesn't answer to the question,
and then we have to figure out what are the implications,
as you referenced, of the no schedule.
And I guess what I'd say is why isn't DONIS distinguishable,
that is 27F dealing with a specific type of,
you know, rental equipment vehicles?
And we've got a long line of cases now,
admittedly the seminal cases, appellate division case,
but there's so many cases
from the United States District Court
for District of Massachusetts,
They just didn't cite to the case in the appellate division.
They did the work and analyzed it
and said that it matters,
and there's no obligation if it's not included.
-: So, your Honor,
I hear a couple things in that question to address.
The first is the line of cases,
and what's interesting is we've talked
about the appellate division case a couple times.
That really got the ball rolling
because when you look at every case,
when you look at every case
that's cited in support of the rule,
that the language of the contract
should trump the work actually performed,
all of them cite back to McGrath
with the exception I think one which cites Debronski,
which cites to McGrath.
So it really all flows from that one single case,
which, again, like I said, it ignores the key role
that the strick liability regime plays in the statute,
which is ensuring that somebody at the negotiating table
has interests aligned with the employees
and is thus incentivized to ask,
"Hey, DOT, do you think that we should ask
about a prevailing wage?"
Or incentivized as we see at JA 478
to go ask DLS themselves,
or as we see in Andrews and Kennedy,
to pay the prevailing wage on prevailing wage eligible work,
even if the contract is silent on it.
There are a number of ways to ensure that the interests
of laborers in a fair wage is protected in this process,
but none of them can function if an employer
is not held strictly liable.
And to allow an employer to avoid liability
or responsibility for a Prevailing Wage Act violation,
that even if it didn't cause,
it has the opportunity to remedy or prevent,
would leave laborers with no remedy
because as we know in this case,
they can't sue the DOT because of sovereign immunity.
And so what we have is, you know,
an admission that the amount paid
was one third of the prevailing wage,
and yet no means by which laborers
could vindicate those rights unless they
were hired before and were sitting around
and literally monitoring their boss's contracting process.
And it can't be that the legislature created a statute
that contains a remedy, and yet,
there's no means of accessing that remedy.
And so in a case like this
where there is a colorable dispute of fact
as to what work was actually performed,
whether it was construction,
whether it was quality assurance,
whether it was pre-construction or design phase work,
that's a question that goes to the jury.
Was this prevailing wage eligible work,
and, if so, were they paid properly for it?
The Superior Court,
by jumping straight to the language of the contract,
shortchanged that entire process,
and so on that ground alone,
this case should go back down to follow the proper standard
that's set out in Section 27. -: Okay.
Thank you very much. -: Thank you, your Honor.
Attorney Burwood.
-: Is it the work done or the words of the contract?
-: Good afternoon, your Honor. May it please the court.
(everyone laughs)
Jonathan Burwood for the defendant's BSC Group
and David Hayes.
Justice Lowy, I appreciate the question,
and it follows up on a question
that Justice Wendlandt asked earlier.
So what the plaintiffs offer to the court
is that it's the work done, okay?
They say that the trigger for prevailing wage
is what work is being done.
That is not what the statute says, your Honor, okay?
149, Section 27, the third sentence talks about the fact
that the start of the application,
when is the application of the prevailing wage determined?
It's determined prior to the contract being let, okay?
Section 27 requires that prior to awarding a contract
for the construction of public works,
the agency shall submit to the commissioner
of the Department of Labor a list of jobs,
and then it shall request
that the commissioner determine the prevailing wage.
The statute then goes on to talk about the fact
that the agency, in this case MassDOT,
once the prevailing wage has been determined,
that that prevailing wage schedule be included
in the bid solicitation.
All of this happens before the contract, okay?
That is pursuant to the terms of the statute,
but it also serves a particularly practical end,
which is that the amount of wage being paid,
the rate of wage being paid is one
of the most significant drivers
of a cost of a construction project.
And so all of the participants in the construction ecosystem
on these public works jobs need to understand,
is this a prevailing wage job or is it not?
It will set those costs.
That is particularly true given the prevailing wage applies
to contracts for the construction of public works
because contracts for the construction of public works,
your Honor, are publicly bid.
They're low bid work.
So in order to qualify for an award of that work,
a construction contractor must submit the bid,
and that bid must reflect the cost of their job.
So both the terms of the statute and just the practicalities
of how these jobs are led require that the determination,
Justice Lowy,
about whether or not the Prevailing Wage Act apply
be made at the outset.
It would violate the terms of the statute
and it would be impractical to enforce.
It cannot be the case that, a couple years down the road,
you've got hundreds of people working
on this project in the field,
they're performing thousands of different tasks.
Determining whether or not the prevailing wage applies based
on any of those individual tasks being done
by any individual person in that job,
it's not a workable solution.
It wouldn't provide the certainty.
It wouldn't allow parties to get-
-: They have to monitor every professional
that you or consult you ever had to make sure
that they weren't touching the shovel the wrong way?
-: Yeah, it certainly would, in my words, your Honor,
I would say it would create a free for all,
and I think that's one of the things here
that needs to be avoided,
and the plaintiffs suggests that that should be the rule,
that any work being done on any public works project needs
to be scrutinized at any given moment.
That is not practical, but most importantly-
-: I agree with you on that point,
but that doesn't really answer the question
whether this kind of contract would still be subject
to the prevailing wage laws, right?
Okay, so DOT has all these public bid contracts.
It can't just sort of carve out work
that would otherwise be in that contract
and avoid the prevailing wage law.
I mean, they can't say, "Okay, I'm gonna make all the,
you know, truck drivers or whatever,
I'm gonna cut out all the truck drivers
and put them over in here."
I don't know if that answers the question.
I look at this as a different kind of contract,
but I don't think it necessarily removes these contracts
from the prevailing wage if DOT is trying
to carve things out of things that would otherwise be bid
in the contract, right? -: So your Honor, again,
with the statutory framework being
that prevailing wage applies only
to contracts for the construction of public works.
-: Right, but this is a contract for work that's going
to be performed on public works, right?
-: It is, your Honor. -: And it's contract
for work that's gonna be formed
on public construction works.
But I get it's different,
but it's not so obvious that it's, you know,
to me, it's complicated, and I guess one question is,
has the department of whatever it's called, DLS,
what's their name? -: Yes, your Honor.
-: They're not here.
Is there anything in the record indicating
what their position is on this fight?
-: Your Honor, I'm not aware of anything in the record.
To my knowledge, DLS didn't weigh in on this,
and what I would say is that's reflective of the fact
that MassDOT, the Department of Labor standards,
that this project isn't a secret.
These contracts aren't secret.
There's testimony in the record
that these professional services contracts
are routinely let by MassDOT pursuant to 7C, Section 58.
The fact that they didn't weigh in indicates
that this is not a contract
for the construction of public works.
Therefore, the Prevailing Wage Acts don't apply.
-: But how do we know they're aware of the,
we know they're aware of these things.
I mean, I have just no idea. -: Your Honor,
I suppose it's possible.
The statute actually requires the agency
to request a schedule from DLS.
So there is an argument to be made
that if the schedule is not requested, how do they know?
It's not in the record before us,
but if I could answer a second part of your question,
you know, it's not the case that MassDOT
can simply carve certain public construction activities
away from the Prevailing Wage Act.
How do we know this is not a contract
for the construction of public works,
I think is the way I'd reframe that question,
-: Go ahead. -: and I've cited
to Section 27 in the addition there.
What I'll also say is that, in Massachusetts,
public works project on roads and bridges
are let pursuant to Chapter 30, Section 39M,
and Chapter 30, Section 39M has very specific requirements
about certain provisions content
that must be in those contracts.
One example would be unforeseen site conditions.
Another would be if the owner suspends work.
There's additional statutory language in Chapter 39
that informs the content of a public construction project
for this type of job.
When you look in the record at the two BSC contracts,
those contracts are so clearly not consistent
with Section 30.39M that that's another sort of touchpoint
in terms of identifying how they're different.
And then third, to that point,
on their terms, they referred to the fact
that they're for consulting services.
The second contract actually says it's let pursuant
to 7C Section 58 because the statute
was passed between the two contracts.
But the other thing is that there's language
in the contract itself that talks about the fact
that BSC is gonna be providing this field survey work
for the implementation of the construction component.
The plain reading of that contract indicates
that there is this work being done by BSC essentially
to support MassDOT so that the construction work can happen.
And then lastly, your Honor, I'd say,
though not a part of the record, as you pointed out earlier,
every single one of these projects that we're talking about,
there was a Section 30.39M contract,
that a general contractor, you know,
issued a bid for, it was publicly let,
and that contract is governed by the Prevailing Wage Act.
There is a distinction made in Section 27
where some contracts are prevailing wage and some are not,
and would offer to you that for all the evidence
in the record and all the arguments made
that these contracts are simply not subject to Section 27.
They are not contracts for the construction of public works.
Your Honor, the last point I wanna make is just that-
-: Can I ask about the strict liability language
that we put in?
Is there anything in the statutes, I mean,
that call it a strict liability statute,
or is this just something we added?
'Cause it is odd language. -: Your Honor,
I agree with the attorney LaSalle that, to my knowledge,
that the strict liability language is not in the statute.
It's judicial interpretation. -: Interpretation, okay.
-: But on that point,
I guess what I'd say is that there's a tremendous amount
about strict liability in the plaintiff's briefs,
and my reaction to that, both in our briefs and here,
is strict liability simply means if you violate the statute,
your reason for violating it does not matter.
You're liable.
What plaintiffs assume and what I think I
wanna get across very clearly is that the statute must apply
in the first place in order for strict liability.
-: I think we understand that.
It's just our question is, okay,
so if we ruled against you on the first point,
McGrath would still rule in favor of you
on the second point,
and that's where the strict liability stuff
becomes meaningful because your reason
would be that you didn't get the bid,
I mean, you didn't get the list of, you know, wages,
but if it's a strict liability statute,
that goes out the window, doesn't it?
-: This is not a technicality case, your Honor.
I think what you're getting as BSC
is not taking the position that,
because they didn't get the wage, it's not applicable.
-: Well, I'm trying to figure out whether you win
on which issues if you win on, and, to me,
the strict liability thing complicates McGrath.
If this is a strict liability statute,
McGrath may not have been correctly decided,
but I'm not sure it's a strict liability statute,
so that's why I was focused on that.
-: The additional way that BSC looks at that also,
your Honor, is that the requirement in Section 27,
that MassDOT in this case,
that they issue a prevailing wage schedule,
that's an indicia about whether or not this
is a prevailing wage contract.
The fact that they didn't indicates, again, that it is not,
and the McGrath, and as I understand it,
the courts that have interpreted it,
the lower appellate division,
the Superior Court, state court,
those courts have essentially said the requirement
of Section 27 to be prevailing wage eligible,
MassDOT must issue this schedule.
If it does not,
this contract is not prevailing wage eligible.
I don't think that's the only argument here, your Honor,
but it is certainly the one focused on by the trial court,
and- -: So I wanna focus
on what happens if you lose for a second.
(Chief Justice Budd chuckles)
If you could cogently tell me
why contractual indemnification and unjust enrichment
would apply as your cross claim.
-: Given my time, your Honor,
I'll focus on the better argument,
which would be the unjust enrichment, okay?
So here, we've got a contract with MassDOT.
MassDOT and BSC agree to a certain rate of wage.
MassDOT ultimately pays that rate of wage,
and BSC pays that rate of wage
to the plaintiffs in this case, okay?
If, in fact, it is determined by your Honors
that the prevailing wage should have been paid,
there's no rationale for BSC.
We are the middle man.
We are simply passing the money,
the wage rate from MassDOT to the employees.
The unjust enrichment would be evident
in the fact that if BSC, my client,
is forced to pay the enhanced rate of prevailing wage
and cannot recover that money
from its contracting partner MassDOT,
there's a restitution interest that is not met there
that simply did not bargain
for having any independent exposure to the plaintiffs.
We simply agreed to offer these services
at the rate agreed to by MassDOT,
keeping in mind that MassDOT determined initially this
is not a prevailing rate job.
It was not our determination,
and under unjust enrichment, your Honor,
the restitution interest to BSC would guarantee
that somehow, MassDOT would not be unjustly enriched but,
more importantly, that BSC would be made whole here.
-: Okay. Thank you. -: If there
are no further questions, thank you, your Honor.
-: And Attorney Isley.
-: Good afternoon, your Honors, and may it please the court.
Kate Isley, assistant attorney general on behalf of MassDOT.
The BSC contracts, as your Honors have noted,
were for professional services and governed
in our view by Chapter 7C Section 58.
-: Even the one of them predated 58?
-: And prior to the enactment of Section 58,
the longstanding distinction that has been made by the DLS
that distinguishes construction contracts
from services contracts.
-: Is that the 1995 one you're referring to?
It is the central artery opinion from 1995
but also the Lancome letter opinions
that the appellants have cited to.
Those are...
-: We can find them. -: Yeah. They're in the record.
I don't have it right here, but in the language
where the Lancome and the centrally artery opinions
specifically apply to land surveyors,
and in the Lancome opinion letter,
it says that land surveyors
shall be paid the prevailing wage if they
are working under a construction contract.
And in this case,
these land surveyors were working under a services contract
to provide quality of servants,
onsite survey expertise for MassDOT over a number of years
in District 3 on various highway and bridge projects.
-: What do you say about the contention
that that may well be, but it's a factual issue?
-: I would disagree that it's a factual issue.
Both Section 27 and Section 58 have
in their language references to contracts,
Section 27 relates to general contractors,
you know, putting the prevailing wage schedule
onto the contract.
It is all tied to the construction contract
and the construction particular project.
I would also point your Honor's attention to Section 27,
the carve out that the legislature made for all persons
who transport gravel and fill to a job site,
and for those persons, the language is all persons,
and it says, "All persons shall be paid the prevailing wage,
no matter whether they're under the construction contract,
an independent contract, the owner operated contract."
So I would submit that the legislature knew
how to carve out an exception to whether a laborer
is an employee of the contractor or the general contractor.
-: So what about the concern that you got the agency
who doesn't wanna pay the prevailing wage
because it'll save money?
You got the employer who's gonna make more money
if they're not paying the prevailing wage,
and they're negotiating a contract,
and the victim is the employee.
-: Well, I would point your Honors to the landscape
of the statutes and that there
are guardrails on these statutes.
And if you look at the bidding,
the way these types of contracts are bid,
you can see that in Section 58 contracts,
MassDOT cannot even consider price
until after it awards a contract on qualifications,
and that reflects a legislative priority that MassDOT
should really be looking for quality firms whereas,
under Chapter 27, it's low bid.
And of course the prevailing wage would apply to a low bid
because contractors might seek to lower their bid
to win the contract on the backs of the workers.
So that reflects another legislative priority.
Now MassDOT bids construction contracts pursuant
to Section 27 on a regular basis
and seeks the prevailing wage schedule,
and it's incorporated into the construction contract.
This is just not that case. This is MassDOT.
Also I'll point you to-
-: I guess I thought Justice Lowy's concern
was what if MassDOT and the standards agency,
I'm not saying that this is this case,
but what if they collude and say,
"Hey, we don't wanna pay the prevailing wage"?
"We just wanna get around that law,
and so we're just going to call it a Section 58 contract."
What's preventing other than, you know,
everybody's good faith in doing that?
-: Section 58 only applies to six types
of professional services.
It's architects,
-: There's another layer there. -: engineers, land surveyors,
landscape architecture,
environmental science, planning and program management,
and the individuals employed by those six types
of professions, and then the professional services work
must relate, must be logically related to the work
that those types of professionals do.
And Section 58 also explicitly provides that land surveying
is one of those professional services,
and land surveying specifically during construction phases
of MassDOT's projects is explicitly provided in Section 58.
So if we're looking at contracts
after the enactment of Section 58,
MassDOT would be permitted to bid these contracts pursuant
to that statute.
Prior to Section 58,
MassDOT still had a basis under DLS guidance
and also Section 27 because, under Section 27,
that is clearly applicable to construction contracts.
And the facts in this case just
do not support any collusion, and it's conceivable.
-: Yeah, I'm not suggesting it. -: It's conceivable
that could happen. -: Yeah,
so given that conceptual possibility,
what is stopping this?
'Cause that is I think essentially what the claim is here.
There's nothing to stop MassDOT and the contracting agency
and the vendor from colluding
to avoid the Prevailing Wage Act.
-: Well, I can say that Section 28 has been enacted
in law for 10 years, and MassDOT has not-
-: 58? -: 58, sorry.
58 has been enacted since 2013, and MassDOT
has been bidding its professional services contracts
the same way since then and prior to then.
And if I can point you to the John Anthony affidavit,
who is- -: Can I ask one other?
Are you representing the Department of Labor Services
on this?
Are they joined in this brief in any way or-
-: They're not. -: And can we count
on not getting a future case
where DLS takes the opposite position,
or have they not been consulted on this?
-: They are not involved in this case,
but based on the distinctions DLS has made
in their opinions,
it's consistent with MassDOT's longtime practice.
-: They're not aware of this brief,
and we've not gotten a letter or anything indicating
that DOS supports this interpretation, right?
-: One way or the other, no. -: Zero. Okay.