How DO They Do It?

Once again, the wheels of justice move in incomprehensible directions. The Appellate Division, First Department, has made contradictory rulings on the same day in two cases involving virtually identical issues involving the payment of prevailing wages on Federal construction projects under the Davis-Bacon Act. Ugh! Here we go.

Under Davis-Bacon, prevailing wages and benefits must be paid to those performing work on Federal public works construction projects. The First Department held previously that employees did not have a private right of action to enforce contracts requiring payment of Davis-Bacon wages. See Gonzalez v D & S Zaffuto Joint Venture, 271 A.D.2d 356 (1st Dep’t 2000). The decision in Gonzalez cited to Majstrovic v. R. Maric Piping, Inc., et al., 171 Misc.2d 429 (Sup. Ct., Kings Co. 1997) which held that no private right of action exists under the Davis-Bacon Act and that the statute preempts state law with respect to federally-funded construction projects; affected employees may pursue statutory administrative remedies rather than commence litigation. Your humble host, that’s ME, represented the defendants in Majstrovic, so you might conclude correctly that I think the courts in both that case and Gonzalez were absolutely right.

Incredibly, two separate panels of the First Department now have issued conflicting opinions, on the same day, with respect to the issue of whether a private right of action exists under Davis-Bacon. In Araujo v Tiano's Constr. Corp. (2007 N.Y. Slip. Op. 04401), the Court affirmed the holding in Gonzalez. I agree with that one. However, in Cox v. NAP Construction Co., Inc. (2007 N.Y. Slip. Op. 04402), the Court held that Gonzalez was decided wrongly, that no federal preemption exists, and that a private right of action exists to enforce Davis-Bacon wages. Note that Justice Williams, in his dissenting opinion in Cox, states: “ [i]n my view, [Gonzalez and Araujo] correctly hold that a private right of action does not exist to enforce, directly or indirectly, contracts requiring payment of Davis-Bacon Act prevailing wages.”

How do these kind of things happen? How can the same Court render inconsistent decisions regarding the identical issue? Your guess is as good as mine. Until the Court of Appeals rules on the issue, it may be best to simply flip a coin.