Thursday, October 21, 1999 Older Editions

Snow plowing crisis melts

By Taylor Armerding

In the end, it came down to a definition -- or, to be more precise, the lack of a definition for the term "public works."

That was the conclusion of Robert J. Prezioso, deputy director of the state Division of Occupational Safety, who ruled this week that local contractors will not have to pay so-called "prevailing wages" to snowplow drivers.

The ruling essentially cancels a warning from the state Attorney General's office that contractors would suffer criminal penalties if they did not pay prevailing wages to snowplow drivers -- hourly rates in the $25 to $30 range.

And it predictably gladdened the hearts of municipal officials, state legislators and especially contractors, who had complained that if they were forced to pay prevailing wages to drivers for plowing snow, their already thin profit margins would disappear entirely.

Municipal and state officials had complained that it could bust local budgets, and possibly compromise public safety by encouraging local officials to save money by not plowing streets during snowfalls that are marginal but still dangerous ("Plowing to get pricier," Townsman, Sept. 30).

But Prezioso, in a letter last Friday to Massachusetts Municipal Association (MMA) Executive Director Geoffrey Beckwith, who had requested a written opinion on the matter, ruled that since the prevailing wage law contains "no clear definition of 'public works' as there is for the more specific term 'public works construction,'" it did not apply to snow plowing.

"DOS is not comfortable with the current posture toward enforcement, and will not hold awarding authorities and contractors to the requirements and potential penalties of a statute that does not unquestionably apply to them, Prezioso wrote, adding that his opinion would stand "until such time as the Legislature or the courts provide some guidance on whether this particular category of work is covered under the law."

Such a move is not likely to come from the Legislature. Both state Sen. Sue Tucker, D-Andover, and state Rep. Barry Finegold, D-Andover, had been lobbying for an administrative ruling that would exempt snowplow operators from prevailing wage laws.

There was political pressure on Prezioso from several other directions, including the MMA, which had been meeting regularly with Gov. Paul Cellucci or Lt. Gov. Jane Swift on the matter for months; from many local officials, including the Andover Board of Selectmen, which wrote a letter asking for the exemption; and from local contractors, 53 of whom signed a petition to Cellucci and the Legislature, arguing that applying the law to snow plowing "will cause severe hardship in our ability to provide snow removal services."

"I think there was a lot of pressure from the governor on this," Finegold says, "and it certainly would have put a lot of communities in a tough bind."

Since towns have to pay contractors a four-hour minimum for plowing, Finegold says the budget implications were significant.

"It was a bit like an unfunded mandate," he says. "And it's something the state doesn't have to play a role in."

Ron Abraham of Elm Street Automotive, who presented the petition to selectmen at their Oct. 4 meeting, was clearly pleased at the ruling, but didn't want to characterize it as a victory.

"This is just what's fair," he said.

The issue, he said, really wasn't the profit margin. "It was the break-even point. When you consider the cost of the vehicle, maintenance, workers comp and everything else, if you have to pay a driver $26 an hour, it would make more sense for us to go to work for somebody else," he said.

The town had offered a 10-percent increase in what it had originally agreed to pay the drivers, but even that would not have made up the loss, Abraham said.

Before the ruling, Abraham said most local contractors had agreed as a group to continue working for the town this winter, but were not sure about beyond that.

"We don't want to hurt the town," he said, "but this is like blood money. You can be out 12 to 48 hours straight in some storms. People don't realize what it's like to pound your body that way."

Tucker, clearly gratified at the ruling, says she is pleased that state officials listened to those at the local level. "The people at the local level understood exactly what the ramifications would be," she says. "A lot of times, the people making the rulings have no understanding of that."

Does that mean the 10-percent increase offer from the current $40-per-hour paid by the town will now be withdrawn? Probably not, according to Town Manager Buzz Stapczynski, who says local contractors hadn't received an increase to cover inflation for several years.

"At this moment, it's going to stand," he says.