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16-P-229                                                Appeals Court

    ADRIAN NILES      vs.    HUNTINGTON CONTROLS, INC., & another.1


                                No. 16-P-229.

           Norfolk.         January 12, 2017. - July 31, 2017.

            Present:    Kafker, C.J., Hanlon, & Agnes, JJ.


Practice, Civil, Summary judgment. Labor, Public works, Wages.
     Public Works, Wage determination. Administrative Law, Wage
     administration.


     Civil action commenced in the Superior Court Department on
November 22, 2013.

     Motions for summary judgment were heard by Thomas A.
Connors, J.


    Joseph L. Sulman for the plaintiff.
    Stephen P. Kolberg for the defendants.


    AGNES, J.     The Massachusetts prevailing wage law, G. L.

c. 149, §§ 26-27 (prevailing wage law), is designed "to achieve

parity between the wages of workers engaged in public

construction projects and workers in the rest of the

construction industry."        Mullally v. Waste Mgmt. of Mass., Inc.,

    1
        Paul Milano.
                                                                    2


452 Mass. 526, 532 (2008).   Under this law, the "rate per hour

of the wages" paid to "mechanics and apprentices, teamsters,

chauffeurs and laborers in the construction of public works" may

not be less than "the rate or rates of wages" determined by the

commissioner of the Department of Labor Standards (department).

G. L. c. 149, § 26, as amended by St. 1967, c. 296, § 3.     The

commissioner determines the minimum rate by preparing a

classification of "the jobs usually performed on various types

of public works" by "mechanics and apprentices, teamsters,

chauffeurs and laborers" employed in such construction.     G. L.

c. 149, § 27, as amended by St. 1967, c. 296, § 4.2   The

commissioner is authorized to "revise such classification from

time to time, as he may deem advisable."   G. L. c. 149, § 27, as

inserted by St. 1935, c. 461, § 27.

     In the present case, Adrian Niles filed a four-count

complaint in the Superior Court alleging a violation of the

prevailing wage law (count one), breach of contract (count two),

breach of the covenant of good faith and fair dealing (count

three), and unjust enrichment (count four).   The judge allowed a


     2
       The commissioner carries out this responsibility based on
data received annually from the public officials or public
bodies awarding contracts for the construction of public works
who must submit to the commissioner "a list of the jobs upon
which mechanics and apprentices and laborers are to be employed"
and who must request that the commissioner "update the
determination of the rate of wages to be paid on each job."
G. L. c. 149, § 27, as inserted by St. 2008, c. 303, § 21.
                                                                     3


motion for summary judgment filed by the defendants, Huntington

Controls, Inc., and its president, Paul Milano (collectively,

Huntington), on all four counts and denied Niles's cross motion

for partial summary judgment on liability under count one.

Niles appealed.    The sole question presented is whether the

judge was correct in ruling that Huntington did not violate the

prevailing wage law because none of the work performed by Niles

for Huntington was subject to the prevailing wage law.    We

conclude that the judge erred in failing to give appropriate

deference to opinion letters issued by the department that

stated that the work performed by a heating, ventilation, and

airconditioning (HVAC) technician such as Niles, who, while

onsite, installs software in HVAC components and then tests

those components to ensure that they operate properly, is

employment "in the construction of public works" and thus is

subject to the prevailing wage law.    Because it is undisputed on

the record before us that at least some of the hours worked by

Niles for Huntington involved such activity, it was error to

deny his motion for partial summary judgment and to grant

summary judgment to Huntington on count one.3

     Background.    The essential facts are not in dispute.     In

September, 2009, Niles began working for Huntington as a non-

     3
       The plaintiff does not dispute the entry of summary
judgment for Huntington on the remaining three counts.
                                                                    4


union, full-time HVAC "controls technician."4   For approximately

three years, Niles worked primarily on two of Huntington's

public construction projects:   the Sharon Middle School and the

Parker Elementary School.   He worked approximately 3,200 hours

between those projects, for which Huntington paid him thirty-

four dollars per hour from September, 2009, to October, 2012,

and thirty-six dollars per hour from October, 2012, to October,

2013, when he voluntarily left Huntington's employment.

     Although the parties do not agree as to all the work

activities that were performed by Niles as an HVAC technician,

it suffices to say, as the judge below recognized, that at least

some of the duties he performed were onsite and included

downloading programs to the HVAC system controllers and

performing certain tests required to ensure the controllers

worked properly.   For example, Niles would use a program to turn

exhaust fans on and off, in order to ensure that they operated

as intended when they received the proper signals.   There is

evidence that occasionally he would "switch out" a

malfunctioning component with one that worked.5   It is undisputed


     4
       The record supports the observation made by the judge
below that the plaintiff's job description "changed over the
course of his employment. Controls technician is not used here
to indicate any type of job classification for determining
whether Niles should have been paid the prevailing wage."
     5
       The defendants argue that any replacement of components
done by the plaintiff was "unlicensed and illegal" and in
                                                                      5


that the majority of the hours Niles worked on the two school

projects were identified by Huntington as work performed under

the service code "1-003, Tech/Commissioning."6    It is also

undisputed that he performed this work on those systems after

the components were installed and wired by the electricians, but

before they were turned over to the customer for operation.

There was evidence that another subcontractor also performed

testing services after Huntington completed its work.

     At least once, prior to turning over the systems to the

customer, Huntington required Niles to be onsite to "go over our

punch list [items] and functionally test our systems."    On that

occasion, he was requested by name to be onsite to "go through

the systems with [his supervisor]" and "to be available to

correct any issues we find."   From the record, it is undisputed

that any system Niles worked on would not be turned over to the

customer until fully tested and operational.     However, this work



contravention of Huntington's express instructions. However,
Huntington does not deny that Niles did the work, and the record
contains no similar objections contemporaneous with Niles's
reports of doing such work that would indicate that, at the
time, they felt that he should not do so. In fact, Milano
testified at his deposition that while such work was not the
regular work of a "control technician," Niles was "trying to get
things done," which was encouraged by the defendants.
     6
       In order to identify the type of work being performed,
Huntington uses a series of service codes on its employees' time
sheets. Code "1-003, Tech/Commissioning" is defined as an
employee working on "prefunctional testing." What constitutes
such testing is not further defined.
                                                                     6


did not comprise the totality of Niles's duties, and there is

evidence that his job duties entailed work other than that

described above.   For example, Niles's job description, as

provided by Huntington, also included duties such as "trains

customers on system operations," and "works with equipment

vendors to coordinate communication protocols."    The record is

not clear as to exactly how much of Niles's job consisted of the

technician work described above, and how much was not.7

     Discussion.   1.   Standard of review.   We review a grant of

summary judgment de novo, Federal Natl. Mort. Assn. v.

Hendricks, 463 Mass. 635, 637 (2012), to determine "whether,

viewing the evidence in the light most favorable to the

nonmoving party, all material facts have been established and

the moving party is entitled to a judgment as a matter of law."

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

"The entry of summary judgment will be upheld when there are no

genuine issues of material fact and the nonmoving party 'has no

reasonable expectation of proving an essential element of its


     7
       Tasks such as training customers and working with vendors
are not considered work subject to the prevailing wage law. The
June 11, 2008, opinion letter, discussed infra, states that
duties such as "maintaining inventory" and "customer contacts"
are "clearly not prevailing wage work." However, in assessing
the issue of liability under count one, we need only conclude
that the undisputed facts show that at least some of Niles's
work fell under the prevailing wage law. See Teamsters Joint
Council No. 10 v. Director of the Dept. of Labor & Workforce
Dev., 447 Mass. 100, 108-109 (2006).
                                                                      7


case.'"     Okerman v. VA Software Corp., 69 Mass. App. Ct. 771,

780-781 (2007), quoting from Miller v. Mooney, 431 Mass. 57, 60

(2000).     In deciding a motion for summary judgment the court may

consider the pleadings, depositions, answers to interrogatories,

admissions on file, and affidavits.     Community Natl. Bank v.

Dawes, 369 Mass. 550, 553 (1976).

     2.     The department's opinion letters.   The commissioner

sets the prevailing wages based on "collective agreements or

understandings in the private construction industry between

organized labor and employers."     G. L. c. 149, § 26, as amended

by St. 1986, c. 665.     In addition, the commissioner looks to

such agreements to determine the appropriate job classifications

under the prevailing wage law.     Commissioner of Labor & Indus.

v. Worcester Hous. Authy., 8 Mass. App. Ct. 303, 307 (1979).

The schedule of wage rates established by the commissioner must

be attached to advertisements for bids on every public works

project.8    Lighthouse Masonry, Inc. v. Division of Administrative

Law Appeals, 466 Mass. 692, 697 (2013).


     8
       "Before soliciting bids for any public construction
project an awarding authority must obtain a prevailing wage rate
sheet from DLS [Department of Labor Standards]. Each prevailing
wage rate sheet applies only to the public construction project
for which it is issued. The prevailing wage rates for each
construction project are in effect for [ninety] days from the
date of issue. Projects not bid within [ninety] days of the
issued rates will require the awarding authority to request new
prevailing wage rates." A Guide to the Massachusetts Prevailing
Wage Law for Contractors, http://www.mass.gov/lwd/labor-
                                                                   8


     The department, in response to inquiries, issues opinion

letters stating whether certain jobs are subject to the

prevailing wage law.9   The department issued one such opinion

letter on June 11, 2008, in response to an inquiry whether the

prevailing wage law applied to a company's HVAC control

technicians.   The job description at issue stated that a

controls technician was responsible for "repair and modification

of environmental-control systems, utilizing knowledge of

electronics, direct digital control, HVAC theory, and control

applications."   In relevant part, the letter stated:

     "As we understand it, after a new system has been
     installed, or an existing system is replaced in whole or in
     part, the system must undergo testing, adjusting and
     balancing (TAB), and commissioning (in the case of a new
     system) or re-commissioning (in the case of a replacement
     project). . . . The important point seems to be that
     installation or replacement of a system involves much more
     than simply installing a 'system' and cleaning up. Such
     construction work is incomplete unless the owner has the
     assurance that the system purchased actually works as
     designed, and this assurance is provided by both the TAB
     and commissioning processes. Therefore, this agency will
     consider installation/replacement, TAB, and recommissioning
     and commissioning of an HVAC system to be all part of the
     same 'construction' work within the meaning of the
     statute."




standards/prevailing-wage-program/a-guide-to-the-ma-prevailing-
wage-law-for-1.html [https://perma.cc/8S9Z-J7D3].
     9
       "Prevailing Wage Opinion Letters" dating back to 1960 are
posted on the department's official Web site. See
http://www.mass.gov/lwd/labor-standards/prevailing-wage-
program/opinion-letters/ [https://perma.cc/AVL8-WQMQ].
                                                                   9


That letter also discussed aspects of the job to which the

prevailing wage law did not apply, such as contacting customers,

attending training, and offsite work.

    Subsequently, in an August 18, 2009, opinion letter, the

department further stated that job descriptions involving "the

programming and downloading of software and installation and

commissioning of electronic direct digital controls (DDC) for

HVAC systems in buildings" fell under the prevailing wage law.

Specifically referencing the June 11, 2008, opinion letter, the

2009 letter stated that "[t]here is no question that the

installation of HVAC systems, including commissioning and re-

commissioning and testing and balancing of the HVAC system[,] is

'construction' within the meaning of the statute and covered by

the provisions of G. L. c. 149, §§ 26, 27."   The letter went on

to state that "[w]ith the exception of computer programming work

performed off-site, [the Department] discern[s] no significant

difference" between the work described in the inquiry before it

and the work that formed the basis for the June 11, 2008,

letter, and that "[i]n both scenarios, technicians use computer

software to complete the final phase in the installations or

replacement of an HVAC system . . . .   In both scenarios, the

work performed by the technician is essential to the proper

functioning of the HVAC system as a whole."   It concluded by

again stating that "the relevant question is whether the work
                                                                   10


performed on the job site falls within the scope of work that is

covered by a collective bargaining agreement.    This office has

determined that the work of commissioning and testing and

balancing of HVAC systems, including the work performed . . . as

described in your letter, is covered by a collective bargaining

agreement."

     The judge below noted that Niles "failed to support his

contentions that his work constitutes prevailing wage work by

pointing to facts in the record."   Specifically, the judge noted

that "[t]he work that [Niles] performs does not fit under

'construction' as defined by the prevailing wage law," because

"[his] work as a controls technician does not fall under any of

the relevant CBAs [collective bargaining agreements], and

therefore cannot be prevailing wage work."10

     The judge was correct in pointing out that the opinion

letters relied upon by Niles, unlike regulations adopted under

the State Administrative Procedure Act, G. L. c. 30A, § 15, do

not have the same "force of law" as a statute.     Global NAPs,

Inc. v. Awiszus, 457 Mass. 489, 497 (2010).     See Construction

Indus. of Mass. v. Commissioner of Labor & Indus., 406 Mass.

     10
       In its August 18, 2009, opinion letter, in reference to
the work performed by an HVAC technician, the department stated,
"This office has determined that the work of commissioning and
testing and balancing of HVAC systems . . . is covered by a
collective bargaining agreement. The proper classification is
either Pipefitter or HVAC mechanic, which are the same rate of
pay" (emphasis in original).
                                                                     11


162, 170-171 (1989) (wage rates set by commissioner are specific

to each job and are not regulations).     However, the judge erred

in disregarding the letters.     Instead the judge emphasized that

"Niles never brought a request to the Department of Labor to

establish new job classifications, nor did the commissioner make

a determination regarding Niles's work.     Furthermore, it is

undisputed that neither party requested an EOLWD [Executive

Office of Labor and Workforce Development] letter in regard to

Niles['s] job classification."     The judge overlooked the fact

that Niles, as an employee, is not authorized to request that

the commissioner establish a new job classification.     See G. L.

c. 149, § 27.11   Further, an employee such as Niles, unlike

Huntington, is not authorized to appeal "a wage determination,

or a classification of employment . . . made by the commissioner

. . . ."    G. L. c. 149, § 27A, as appearing in St. 1987, c. 544,

§ 2.




       11
       General Laws c. 149, § 27, provides in relevant part as
follows: "Prior to awarding a contract for the construction of
public works, said public official or public body shall submit
to the commissioner a list of the jobs upon which mechanics and
apprentices, teamsters, chauffeurs and laborers are to be
employed, and shall request the commissioner to determine the
rate of wages to be paid on each job. Each year after the
awarding of the contract, the public official or public body
shall submit to the commissioner a list of the jobs upon which
mechanics and apprentices and laborers are to be employed and
shall request that the commissioner update the determination of
the rate of wages to be paid on each job."
                                                                   12


     Courts customarily defer to an administrative agency's

interpretation of its governing statute unless that

interpretation is inconsistent with the statute or it purpose.

See Mullally, 452 Mass. at 533 (Department of Labor's opinion

letter that defendant violated prevailing wage law entitled to

deference because it was not contrary to "plain language of the

statutes or their underlying purposes").   See also Swift v.

AutoZone, Inc., 441 Mass. 443, 450 (2004), quoting from

Massachusetts Hosp. Assn. v. Department of Med. Sec., 412 Mass.

340, 345-346 (1992) ("In general, we grant substantial deference

to an interpretation of a statute by the administrative agency

charged with its administration"); Teamsters Joint Council No.

10 v. Director of the Dept. of Labor & Workforce Dev. 447 Mass.

100, 109-110 (2006) (deputy director's interpretation of

prevailing wage law entitled to deference because Legislature

delegated decision-making authority to department).   In view of

the Legislature's broad delegation to the commissioner of "the

details of how the prevailing wage law should be applied,"

Teamsters Joint Council No. 10, supra at 109, we conclude that

the judge erred in failing to give deference to the department's

opinion letters.12


     12
       The cited opinion letters were written prior to the
litigation involved in this case. Thus, this is not a case in
which the force and effect of opinion letters under the
prevailing wage law may be affected by the connection between
                                                                    13


     3.   Scope of "construction" work under G. L. c. 149, § 27.

For purposes of the prevailing wage law, the term "construction"

includes "additions to or alterations of public works."    G. L.

c. 149, § 27D.13   The Supreme Judicial Court has observed that

although "[t]he word 'construction' in § 26 is ambiguous

standing alone," § 27D contains an expanded definition of the

term that indicates that "the Legislature has not taken a narrow

view of additions and alterations . . . ."   Felix A. Marino Co.

v. Commissioner of Labor & Indus., 426 Mass. 458, 461 (1998).

See Perlera v. Vining Disposal Serv., Inc., 47 Mass. App. Ct.

491, 493-494 (1999) (meaning of term used in a statute may

expand or contract depending on context).    The Supreme Judicial

Court also indicated that when it is "fairly debatable" whether

the work performed by an employee falls within the scope of the

prevailing wage law, the interpretive rulings made by the State



the request for such letters and litigation that is pending at
the time. See Lighthouse Masonry, Inc., 466 Mass. at 697.
     13
       General Laws c. 149, § 27D, as appearing in St. 1961,
c. 475, § 2, reads as follows: "Wherever used in sections
twenty-six to twenty-seven C, inclusive, the words
'construction' and 'constructed' as applied to public buildings
and public works shall include additions to and alterations of
public works, the installation of resilient flooring in, and the
painting of, public buildings and public works; certain work
done preliminary to the construction of public works, namely,
soil explorations, test borings and demolition of structures
incidental to site clearance and right of way clearance; and the
demolition of any building or other structure ordered by a
public authority for the preservation of public health or public
safety."
                                                                   14


agency charged with administration of the law should be

respected.   Felix A. Marino Co., supra.

    The two opinion letters14 cited by Niles and discussed above

indicate that the testing of HVAC systems following their

installation to ensure they operate as intended is

"construction" work as that term appears in the statute.     For

example, the opinion letter dated June 11, 2008, identifies job

descriptions that are "clearly not prevailing wage work," such

as providing "sales leads to personnel," "maintaining files," as

well as "maintaining inventory, customer contacts, [and]

communications with . . . management staff."   This letter

further states that "work that is performed off-site, such as

training sessions at factory locations and off-site computer

work," is not work that is covered by the prevailing wage law.

However, the department concluded that "the position description

also includes work that would require payment of prevailing

wage."   This letter also quotes an earlier opinion letter, dated

August 24, 2005, which, in turn, states that "end-to-end

testing, downloading programming, starting up, and commissioning

on assigned projects" by a technician may qualify as work

    14
       The record also contains a third opinion letter dated
December 8, 2009, which stated that "post-commissioning writing
of computer code to integrate HVAC systems with servers and
computers" was not work covered by the prevailing wage law, but
reiterated that "testing, adjusting and balancing (TAB) [and]
commissioning . . . to ensure the proper operation of the HVAC
systems is covered by the prevailing wage law."
                                                                    15


subject to the prevailing wage law.    Of particular significance

is this observation:    "[I]nstallation or replacement of a system

involves much more than simply installing a 'system' and

cleaning up.    Such construction work is incomplete unless the

owner has the assurance that the system purchased actually works

as designed."   The May 18, 2009, opinion letter reiterates the

points made in the June 11, 2008, opinion letter and concludes

that "programming and downloading of software and installation

and commissioning of electronic direct digital controls (DDC)

for HVAC systems in buildings," when performed onsite, is

"construction" within the meaning of the prevailing wage law.

    In reviewing the record, the judge correctly noted that

there was no dispute that some of the work performed by Niles

"involved downloading a program into every HVAC controller and

verifying that those programs are working properly."     However,

because the work performed by Niles took place after a licensed

electrician had installed the wiring, the judge erroneously

concluded that it was "postinstallation" work and for that

reason was not work that qualified as "construction" work within

the meaning of the prevailing wage law.    Here, the judge

disregarded the guidance supplied by the two opinion letters,

and erred by categorically excluding, from the definition of

"construction," work that took place after the physical

components of the system had been installed and wired.    Whether
                                                                  16


such work is regarded as installation or postinstallation work

is beside the point.   The department is clear in its opinion

letters that work performed onsite after the initial

installation is completed may constitute "construction" work for

the purposes of the prevailing wage law.   These opinions reflect

the fact that many of the components and systems used in the

construction of public works projects, such as HVAC systems,

depend on microprocessors to function properly, and that these

microprocessors are tested by means of handheld computers and

software applications as opposed to more traditional tools.      The

fact that another subcontractor known as an HVAC mechanical

subcontractor also tests the system after Niles completes his

work does not affect whether Niles was engaged in construction

activity on behalf of Huntington.   The judge, therefore, erred

as a matter of law in ruling that the work performed by Niles in

downloading software into every HVAC controller and verifying

that those programs worked properly was not covered by the

prevailing wage law.

    4.   Establishing a job classification and pay rate for an

HVAC technician.   It is undisputed that the work performed by

Niles did not all come within the job classifications for

licensed electricians or pipefitters that appear in the relevant

collective bargaining agreements.   Niles is not a licensed

electrician.   Furthermore, as the judge noted, there is no
                                                                  17


dispute that the work performed by Niles did not involve the

installation of the physical components of the HVAC system,

which was handled by licensed electricians, or the handling and

installation of tubing and sheet metal as performed by

pipefitters.    However, the department's two opinion letters that

are before us address this question as well.    The department

states, in its August 18, 2009, letter, that "the relevant

question is whether the work performed on the job site falls

within the scope of work that is covered by a collective

bargaining agreement."    In its June 11, 2008, letter the

department states that "the collective bargaining agreements

with the pipefitters union cover the commissioning of HVAC

systems as described.    Union pipefitters perform HVAC

commissioning on job sites in Massachusetts, and are trained in

commissioning processes through their apprentice training

program.    Therefore, the proper job classification for

commissioning work is pipefitter or HVAC Mechanic, which are the

same pay rate."    In both opinion letters, the commissioner

determined that the scope of work described in the letters --

work similar to the work performed by the plaintiff -- was

covered by a collective bargaining agreement.    This is

consistent with the corresponding job description for union

pipefitters in the record before us.15

     15
          The pipefitters' collective bargaining agreement,
                                                                     18


       Conclusion.   For the reasons stated above, the judge erred

in allowing Huntington's motion for summary judgment on count

one and in denying Niles's motion for partial summary judgment

as to liability on count one.    We hold that the work performed

by an HVAC technician such as Niles who, while onsite, downloads

and installs software into HVAC components and then tests those

components to ensure that they operate properly is employment

"in the construction of public works" and thus is subject to the

prevailing wage law.     Consequently, the judge should have

allowed Niles's motion for partial summary judgment as to count

one.    Because there are material facts in dispute as to the

number of hours Niles performed "construction" work, as opposed

to other kinds of work for Huntington, the case must be remanded

to the Superior Court.

       Insofar as the judgment dismisses count one, it is vacated,

and the case is remanded for entry of an order allowing the

plaintiff's motion for partial summary judgment as to liability

on count one and for further proceedings on count one consistent



included in the parties' joint appendix to their statement of
material facts, states that the "Union is the sole collective
bargaining agency for Journeymen, and Apprentices, performing
the work of erecting, installing, joining together, dismantling,
adjusting, altering, repairing, maintaining and servicing any
and all types of heating . . . and air conditioning systems."
That agreement goes on to state that the "Work of the
Pipefitters" includes "[o]perational tests of each system and of
components of that system. Verification of performance,
operating instructions, final operation."
                                                                 19


with this opinion.   In all remaining respects the judgment is

affirmed.

                                    So ordered.
