J. E. Roze Associates, Inc. v. Department of Labor

Determination unanimously confirmed and petition dismissed without costs. Memorandum: The determination of the Commissioner of Labor that petitioner Apeo willfully failed to pay its employee prevailing wages is supported by substantial evidence. A violation of Labor Law § 220 is willful when the contractor acted knowingly, intentionally or deliberately (Matter of Green Is. Constr. Co. v Roberts, 139 AD2d 907; Matter of Cam-Ful Indus. [Roberts], 128 AD2d 1006) and where it knew or should have known of the violation (Gross Plumbing & Heating Co. v Department of Labor, 133 AD2d 524; Matter of Cam-Ful Indus. [Roberts] supra). There was testimony that Apco’s president and principal shareholder, James E. Roze, knew the difference between a journeyman and an apprentice, but that Apeo paid an employee as an apprentice when in fact he did the work of a journeyman. With respect to the charge that Apeo willfully ignored the requirement that an apprentice be enrolled in a registered training program, there is evidence that such requirement was known to Apco’s former co-owner, Jack Valder, and its present superintendent, Mark Kjar. The acts and knowledge of those individuals may be imputed to Apeo. (Proceeding pursuant to Labor Law § 220.) Present — Callahan, J. P., Denman, Boomer, Balio and Davis, JJ.