*1 Association, Metal International Workers’ 33, Refrigeration, Appellee, No. Gene’s Union Heating Appellant. Conditioning, Inc., & Air [Cite Assn., Metal Local Union as Sheet Workers’ Internatl. No. Refrigeration, Heating Conditioning,
33 v.
& Air
Gene’s
laws. must we determine whether a labor organization that obtains written to represent employee authorization one has as an “interested pursue violations of prevailing-wage law on of any behalf other Second, employee on the must shop determine whether who work manufacturing materials to be used connection with a public improvement entitled rates. that is an follow, that a labor organization we hold For the reasons that 4115.03(F) file a may party” under R.C. action, and R.C. authorized the specifically *2 on behalf of directly on site performed whose only to applies Therefore, of the judgment reverse the public improvement project. judgment. the trial court’s
court of reinstate
I. Facts Association, appellee No. International Local Metal Workers’ {¶ 3} (“Local employers with 33”), negotiates that is а bona fide labor terms, hours, employment. Refriger- of Gene’s and conditions concerning wages, Inc., (“Gene’s”), ation, is a contractor as Conditioning, appellant & Air Heating 4101:9-4-02(H) field construction performs that both by defined Ohio Adm.Code a contract for the fabrication. was awarded in-shop work and sheet-metal Gene’s County, Fire located Medina Grainger (“project”) construction of the Station of improvement meaning within the Ohio’s project Ohio. The was a law, seq. 4115.03 et prevailing-wage against prevailing- filed Gene’s for violations of complaint Local 33 bargаining representa- Local was not the
wage project. law on the Grainger however, standing it had as an alleged tive it employees; for Gene’s 4115.03(F)(3) authorization based the written under Cherfan, shop. complaint an fabrication The of Elie Gene’s off-site employee involved by reporting, violations Gene’s that multiple prevailing-wage asserted notification, wage entire recordkeeping, requirements summary on two parties judgment legal The filed cross-motions for Local on behalf of other than Elie anyone issues: whether 33 has to sue applies per- Cherfan and whether the law work off site. The trial court denied the motions. shop project formed parties joint stipulated filed a motion to reconsider and both work on the site and sheet- facts. Gene’s construction following performs an shop. metal of duct work in an off-site Elie Cherfan was fabrication of in the of off-site shop. Gene’s off-site fabrication Gene’s Cherfan, shop, including regular nonprevailing-wage fabrication Elie at rates. him gave represent Elie Cherfan written authorization to 33 to for action. purposes bringing prevailing-wage complaint of еnforcement July complaint Local 33 an administrative filed 4115.16(A) with the pursuant to R.C. director interested Commerce, law. Department asserting violations of Ohio’s days ruling by After than from the date of with no elapsed filing more had Common director, Pleas of Medina Local 33 filed a the Court 4115.16(B) County as similar permitted by prevailing- with allegations wage infractions. reconsideration, Upon magistrate concluded that Elie Cherfan
8}{¶ only employee of Gene’s to Local 33 to him in this expressly represent authorize Further, standing only action. Local 33 had Cherfan. behalf Elie shop work that Chеrfan from subject was not law. project magistrate granted Gene’s motion trial summary judgment. adopted court magistrate’s decision. remanded, of appeals The court reversed and concluding Cherfan’s 9}{¶ written him allowing authorization Local 33 to represent impute was sufficient to standing to Local 33 with all respect the entire of Gene’s 06CA0104-M, employees. App. 2008-0hio-1005, Medina No. 2008 WL ¶ 22. The court further held that R.C. 4115.05 expressly provides payment *3 to prevailing wage employees, in particular, employees fabricate materials to in held, be used or in connection with a work. court (1934), 359, 123, Zane 128 St. 191 N.E. superseded by has been ¶ legislature. at Id. 39.
(¶
The
cause
before this court
of a
acceptance
discretionary
10}
appeal.
1505,
II. Party” as an “Interested 4115.16(A) authorizes an party” “interested file a complaint 11} to with {¶ 4115.16(B) the director of a commerce alleging prevailing-wage violation. R.C. authorizes the to party” “interested file a in complaint the court of common pleas of the county in which the violation if allegedly occurred the director not has on days. ruled the merits within An party” with a respect to 4115.03(F) particular public improvement in is defined R.C. as: “(1) person Any who submits a bid for the of purpose securing of award a for contract of public improvement; construction “(2) person a Any as acting subcontractor of a person mentioned (F)(1) section; division of this “(3) Any bona labor which has as members or fide of
authorized represent (F)(1) to employees person mentioned in division or of (2) exists, this section and which inor part, whole for the of purpose of negotiating employers with concerning hours, the wages, terms conditions employment of employees; of “(4) Any having association as members of 15} mentioned
{¶ (2) (F)(1) added.) division this section.” (Emphasis under party interested that Local is an stipulated have parties 16} {¶ whether 4115.03(F)(3) before us is The issue on behalf Elie Cherfan. authorization extends on based Cherfan’s 33’s status as an interested basis. projectwide all on employer to apply employees to Assn., 33 v. Local Union No. Intenatl. In Metal Workers’ 17} {¶ 198, 611, we exam Mechanical, (1999), 716 N.E.2d 86 Ohio St.3d Mohawk employees to nonunion respect with a union’s as an “interested ined status At Mohawk, improvement project. on a public for a subcontractor who worked time, employеes. When attempting organize Mohawk union wages employees not paying prevailing that Mohawk was union discovered 4115.16(A). Three it under project, on the filed action pursue the union written authorization employees gave Mohawk it was after filed. party. the union had interested We held that Mohawk, “a mentioned person a subcontractor
employees worked
(F)(1)”
4115.03,
not
for these
although
negotiate
union did
division
of R.C.
at
the union written authorization
gave
least
three
them
employees,
614,
198.
Id. at
716 N.E.2d
them in the
action.
represent
in the instant case relied
the statement
сourt
require
statute
that a
Mohawk
does
“[t]he
written
its conclusion
Cherfan’s
representation”
support
authorize
represent
sufficient to allow Local 33 to
all
authorization alone is
“organization of labor (F)(1) (2),” to union members. opposed in division person mentioned added.) on Thus, may act the union is interested (Emphasis addition, to the union act. of the who authorized employee expressly behalf designates text of authorization 33 to expressly represent Cherfan’s Local Cherfan: will, my hereby free I “Of own authorize Sheet Metal Workers Local agents representatives represent my to all pertaining me matters to and/or * * regarding any claims and all issues *. This authorization prevailing wage * ** is I it signed effective as date and will remain effect until I revoke added) it in writing.” (Emphasis aptly explained dissent Mohawk that an employee’s authorization analogous Mohawk,
“is to the creation an attorney-in-fact relationship.” (Moyer, C.J., Ohio St.3d at 716 N.E.2d dissenting). To allow union to on bring behalf of who did not authorize the union to act on their behalf would to employees’ right legal violate select their own counsel or representative. employee’s labor one authorization does not to all remaining employees. extend Cherfan’s authorization does not confer interested-party status 33 to pursue prevailing-wage projectwide violations on basis for employ-
ees other than convey Cherfan. Cherfan’s authorization does not carte blanche the union to to claims on pursue behalf who have not agreed to such Therefore, actions. we hold that a labor that obtains written authorization to represent one employee does not have as an 4115.03(F) party” under pursue R.C. of the prevailing-wage violations law behalf other on the project, and we reverse the judgment of the court of this issue. Local 33 has standing pursue claims on behalf of Cherfan only. Prevailing Wage
III.
Next,
must
law,
determine whether
{¶25}
4115.05, applies
an employee
whose work is not performed on the actual
project site but
wоrks on
materials that will be used in or in connection with
Local 33 has filed a
claim on
behalf Cherfan. We
Cherfan,
must decide whether
who fabricated ductwork for
project
at Gene’s
shop,
off-site fabrication
prevailing wage.
entitled
statutes,
prevailing
“The
wage
through
4115.16,
{¶26}
require
contractors
subcontractors for public improvement projects
pay
laborers and mechanics the
so-called
locality
where
is to
be performed.”
(1998),
J.A. Croson Co. v. J.A. Guy, 81 Ohio
*5
346, 349,
St.3d
{¶27} performed site, Zane, on project citing Clymer 359, the 128 Ohio St. 191 N.E. 123, in which this court held persons that who working were off-site a gravel (entitled to highway project not the were pit operated project’s contractor owned wage) though even prevailing were used pit and materials gravel in this concluded The court of case an off- recognize year expressly following were amended
statutes
rate,
Clymer.
thus
prevailing
superseding
at the
right
paid
to be
employee’s
site
¶
623407,
A. History Prevailing-Wage Legislation statutes establish Ohio enacted its first 1931 “[t]o wages employed to workmen mechanics in construction paid fair rate be 3, legislation H.B. No. Laws 116. new public improvements.” 1931, 1494, Act of which closely resembled the federal Davis-Bacon 46 Stat. subcon- required employed by laborers or mechanics contractor alteration, construction, any public buildings tractor in the be repair nature. than the rate of for work a similar prevailing wages less statutory attorney general opinion In Ohio’s issued an that the merely rаte or deliver minimum-wage apply did not workers furnish (but fabricate). 1932 to the do not install or project materials construction held that Clymer, No. In this court decided which Atty.Gen.Ops. 4836. on a pit in a not considered gravel wage. not entitled to gravel that used the and are highway 359, 191 128 Ohio St. N.E. Clymer, law, adding Assembly amended the the General is at 4115.05 and language appears “material to be used” that now
254 any
issue not or legislative history explana- here.1 amendment does reflect tion changes. for the There is no indication that the amendment intended to legislatively supersede Clymer, overrule or аnd Local 33 no support offers that Although assertion. 4115.05 has been several R.C. since amended times since “material to used” issue language be at has remained consistent.2 Statutory
B. Interpretation appellate upon language court relied in paragraph the sixth wages paid day’s work, R.C. 4115.05: “The rate of to for a prevailing legal be to laborers, workers, mechanics, or upon any material to be used in or in work, public connection with shall be not less than the rate of prevailing wages payable day’s for a work in same trade or occupation locality within the state public being where such work is and material in performed where the situated, erected, added.) final or form completed is to be or (Emphasis used.” 4115.05 specifically R.C. does not refer to whose work is away conducted from or off the site. Other within paragraphs R.C. however, prevailing-wage statutory scheme, and elsewhere provide insight First, into the law. scope of the 4115.05 provides that “[t]he * * * prevailing laborers, workers, wages paid rate be upon or mechanics * * * public works shall not than be less prevailing wages rate then payable in ocсupation the same trade or locality public where such work is * * being performed “[e]very and contract a public work shall contain a provision laborer, worker, mechanic, each or employed contractor, by such subcontractor, or person work, other about or upon public such shall be paid the added.) prevailing wages rate provided this section.” (Emphasis 4115.10(A) addition, provides that “[a]ny upon any * * * paid who is than less rate of wages fixed * * * applicable may thereto recover the difference between the fixed rate of * * added.) wages 4115.10(B) and the amount paid (Emphasis author- izes “[a]ny public employee upon any improvement who paid is less than the prevailing rate” to file a complaint with the director commerce. (Emphasis added.) “[cjonstruction R.C. 4115.032 refers to any project” and “contractors 1. wages legal G.C. 17-4a “The to be for a workmen provided: day’s work, laborers, or mechanics material to be or in [with used connection shall not be upon work], public prevailing less than the rate for a work in the same trade in the within day’s occupation locality the state where suсh about or connection with such on, labor is in its final * * form to be erected situated, or used 116 Part completed Laws, Ohio 207. I, 2. G.C. 116 Ohio Laws 118 Ohio Laws 17-4a; 206; 587; 128 Ohio Laws 131 Laws 936; Ohio 993; Ohio II, Part 137 Ohio Part Laws, 1148; Laws, 141 Ohio Part II, 3854; Laws, II, 2836; Part 148 Ohio Part Laws, V, 9632; Laws, II, subject be projects” “shall on such subcontractors added.) (Emphasis 4115.16 of the Revised Code.” with sections 4115.03 to comply file a may site only law those on the provides working on paid, those if recover statutes. projects subject improvement *7 charged addition, of Commerce Department In the director the 36} {¶ determining laws with and prevailing-wage enforcement of overseeing with The of rates schedule wage project. for a R.C. 4115.032. applicable Therefore, the isolated work.” 4115.07. the site of the posted must be “on with the intent of comport does not “any in 4115.05 to material” reference statutory the overall scheme. regula- administrative 1990, Department adopted Commerce administering prevailing-
tions, seq., et to facilitate Ohio Adm.Code 4101:9—4 hearings in following were extensive regulations adopted laws. These to opportunities and labor had voice industry employers organized both which do job site and They refer to work thеir concerns. likewise rates. being as entitled to refer to off-site workers subject matter regulations general that relate to same Statutes intent. carry legislative in to out be read in materia order discover may pari Valu, Comm., 115 Ohio St.3d 2007- Super ex rel. Indus. State Ellis ¶ of the Ohio-4920, prevail entire Construing language 874 N.E.2d we conclude that the regulations, scheme with related ing-wage statutory along Clymer, and 4115.05 does not mandate did not overrule Assembly General they if be to who work off-site even prevailing wages phrase or in with the to be used on connection working materials must used connеction with” R.C. 4115.05 be “any material to be site. referring to materials on the interpreted and Practice Industry C. Custom in this filed amicus briefs case. organizations Several labor and trade Clymer has to follow industry that the continued They acknowledge construction laws to applies prevailing-wage the laws in 1935 and since were amended and its amici position by advocated project workers on the site. Assembly If had current the General departure practice. constitutes from man- expand legislatively intended overrule surely would have been applicability law years ago, dates more than 70 current contrary appellate now. The court’s conclusion challenged before Clymer. industry practices apply that continue standards D. Consequences Unworkable court appellate modified the statute to create rule appellate application interpretation for off-site workers. The court tailored of its with an material to those off-site workers “intimate connection” between the be work, used connection with the work and off-site thereby qualifications to the The court adding statutory language. оwn reasoned that a particular this would enable to trace materials made for employers specifically for paying the off-site workers the purposes prevailing wage. 2008-0hio-1005, at 37. although WL statute did not so concluded, specify, court of appeals respect with to the fabrication work, that the materials must specifically be fabricated rather than prefabricated ordinary by materials suppliers made course business by use and all Id. purchasers. However, judge in the court dissenting appellate questioned the majority’s interpretation: mоdified “The attempts practical limit the *8 might effects of its but holding, fairly point one ask at what the fabrication process achieves the ‘intimate connection’ majority that the envisions. When a contractor duct work in produces the normal course of its business for own use activities, in construction is the connection established some of its when materials are used in a public relation to improvement? Must the fabricator of materials that are incorporated machines used in assembly the pay prevailing wage because the ultimately machine is used ‘in сonnection a public with work’? When materials, certain off-site fabrication how is the fraction spent their time on those items that of a part become to be and compensated determined out an day? entire working Must a contractor now record those fractions of working spent by time whose work a tangential relationship bears public material used in improvements? Simply put, the 2008-0hio-1005, rule is unworkable.” 2008 WL The rule by created court in appellate this case changes industry practice custom and in place Clymer. since It interjects uncertainty into a by process creating However, a new standard. the court is forum proper to determine these difficult policy by issues raised amici. parties and These issues should be by addressed Assembly General in a with input forum interests, from all competing including all organizations labor affected. Such a departure law, from custom, current practice properly belongs legislative domain as matter policy. Therefore, construing prevailing-wage statutory scheme and admin- materia,
istrative regulations conjunction and in pari with industry custom and hold practice, we that R.C. 4115.05 apрlies only to persons whose directly public improvement project at the site of the Zane legislatively superseded. has not been
IV. Conclusion 4115.03(F) Local 33 is an interested under R.C. on behalf of Elie Cherfan his written authorization. This status only, interested-party based addition, projectwide does not extend to other on a basis. whose work is on the site of applies performed directly public improvement project. Because Elie Cherfan did not work site, he is not entitled to the rate. we Consequently, reverse the court of trial judgment and reinstate the court’s judgment.
Judgment rеversed. Mover, C.J., Cupp, JJ., concur. O’Connor, O’Donnell, Lanzinger, J., dissents. Pfeifer, J., dissenting.
Pfeifer, I majority’s holdings dissent from the as to and as to whether applies statute to the facts of this case. standing, As for at misinterprets Being statutes issue. represent “authorized to makes a an employees” labor “interested 4115.03(F). 4115.16(B). Then, party” under R.C. proceed As 4115.16(B) party,” that labor organization pursuant “may to R.C. file the court of common in which violation pleas county *9 alleged to have occurred.” No a organization’s standing statute limits labor person the or who organization authorize the labоr to represent employ- ees. The authorization organization makes the labor an “interested party.” The itself, upon filing, labor becomes the in the lawsuit—notice that there is no “et al.” organization’s after the labor name in our own ease heading. itself; It is filing behalf of it is the issue of an raising employer’s pay failure to in the a prevailing wage, way same contractors’ 4115.03(F)(4) association could file a complaint pursuant to R.C. which —under such an association an is 4115.16. the majority Would —and represent worry about how a contractors’ association did not of the workers might benefit from a successful claim? issue, As for the let us look at facts of this case. {¶ 47} (“Gene’s”) Refrigeration, Gene’s & Air Heating Conditioning, bid on the fire station Granger Gene’s fabricated the ductwork that ductwork was not off the purchased would install. This other Gene’s It inventory. specifically in already from a vendor and was Gene’s shelf job. specific fabricated for this move to the statute: We work, legal day’s to be for a prevailing wages paid “The rate of workers, mechanics, in in
laborers, upon any material to be used or or work, wages than the rate of public prevailing with a shall be not less connection in within the day’s occupation locality a work in the same trade or payable for and where the material in its public being performed where such work is state added.) erected, situated, (Emphasis be or used.” completed or is to final form R.C. 4115.05. * * * public was “material to be used in a work.” The ductwork here does; But in really go majority analysis need not further.
We 4115.05, majority installs where the statute establishes that ellipses prevailing wage public for work on materials used connection with the work prevailing wage locality shall be the “wherе the material its final or situated, erected, completed completed work or form is to be or used.” The that contemplates public might statute thus some materials for work sometimes case, that in be fabricated off-site and establishes such the off-site work still wage; for the to be qualifies prevailing wage that locality majority willfully ignores work. The section of R.C. 4115.05 and instead jurisprudence by preposition, insisting embarks work “on” or than “upon” geographical presence connotes rather of the work. purpose majority’s unique application prepositions, Under judicial “on” a would opinion require perch atop the writer to his or her screen while computer crafting opinion. majority’s locus focus is hocus pocus. prevailing-wage statutory scheme at issue in this case is not
ambiguous require any legislative and does not divination of intent. That the (1934), changed statute after this court’s decision in Clymer Zane 128 Ohio St. 191 N.E. remarkable for the reason that is good precedent only for a that no longer changed statute exists. The statute after Clymer by adding the “material to be used” that is at language issue this case. any legislative relatеs amendment does not reflect “[t]he history explanation changes. for the There is no indication that the amend- ment was intended to legislatively supersede Clymer, overrule and Local 33 First, offers no for that support Majority opinion, assertion.” our is to *10 written, Second, the statute as not interpret puzzle over motivations. state- ments of intent and concomitant legislative specific holdings referrals recent Supreme only developments. Legislative etiquette Court are has bill, into a and intent legislative it was a cardinal sin to insert formerly, changed; Legislative by leаders and by legislative enforced strictly policy legislatively Assembly had intended If the General Service Commission. have so. certainly it would not said Clymer, overrule But let prevail today. if were to foresees doom Local 33 case, In this case, of horribles. parade with this not only us concern ourselves fabrications; they the material working site-specific employees Gene’s were at issue fungible. for the and was public project created was they were Gene’s, public project; was a bidder on the winning worked for Any speaker companies. of other not once- or twice-removed Granger for the shop ductwork an off-site English agree creating would fire station Granger considered “on” the fire station would be prevailing- in this case is whether Ohio’s question relevant ductwork for preparing workers involved apply statutes to the Gene’s assuredly “yes.” answer is Granger installation in the fire station. The L.P.A., Cosme, Co., appellee. M. Joseph D’Angelo, & Szollosi and D’Angelo Co., L.P.A., Ross, A. Ross, Nykulak, Brittain Alan and Nick Schonberg & G. for appellant. Eckler, L.L.P., Jr., affirmance for Liggett urging and Luther L.
Bricker & Air National Association Conditioning amici curiae Sheet Metаl and Contractors’ of Miami Roofing and Metal & Contractors Association Cleveland Valley.
Cosme, Co., L.P.A., D’Angelo Joseph D’Angelo, urging & Szollosi and M. of Northwest affirmance for amicus curiae Sheet Metal Contractors Association Ohio, Inc.
Hunter, Carnahan, Hunter, & Michael affirmance Byard urging Shoub J. Council, Trades AFL- Building for amicus curiae Ohio State and Construction CIO.
Sherman, Dunn, Cohen, P.C., R. Yellig, Terry Yellig, urging Leifer & Department, affirmance for amicus curiae and Construction Trades Building AFL-CIO. Sabo,
Schottenstein, Co., L.P.A., Dunn L. Roger urging Zox & reversal amici curiae Ohio Contractors Association and Associated General Contractors Ohio. Vlasek, Hostetler, L.L.P., Azoff, Jeffrey urging Elliot R.
Baker & S. Association, for amici Associated General Employers rеversal curiae Construction *11 Division, Ohio, Ohio, Contractors of Cleveland Associated General Contractors Association, Division, Associ- Carpenter Akron Contractors Concrete Contractors ation, Association, Association Deep Glazing Foundation Contractors Contractors Ohio, Association, Interior Roofing of Northeast Greater Cleveland Contractors Association, Association, Inc., Systems Millwright Mason Contractors Contractors Association, Employers Employers Bricklayers North Central Ohio Council Craftworkers, Association, Carpenter and Allied Residеntial Contractors Metal and Air National Association of North Conditioning Contractors’ Central Ohio, Inc., Association, Steel & Iron Contractors and Tile-Marble-Terrazzo Contractors. McNamara, L.L.P., McNamara, Bryan,
McNamara & Keith M. Jonathan reversal curiae urging Ready amicus Mixed Concrete Association. Fiore, Anthonio C. reversal for amici urging curiae Ohio Chamber of Com- merce, Commerce, Dayton Area Chamber of Council of Enterprises, Smaller Commerce, Chamber, Greater Akron Chamber of Youngstown/Warren Regional Commerce, Regional Toledo Regional Chamber and Cincinnati USA Chamber. Ross, Co., L.P.A., Ross, Brittain & Schonberg Alan G. and Nick A. Nykulak, urging Ohio, reversal for amicus curiae Associated Builders & Contractors of Realty, Inc., Appellant, ex State rel. Gilmour City Mayfield Heights Appellees. al., et Realty, Mayñeld ex rel. State Gilmour Inc. v.
[Cite as Hts., 2009-0hio-2871.] Ohio St.3d (No. 2009.) 2009-0229 Submitted June 2009 Decided June Per Curiam. This is an from a appeal summary judgment a writ denying of mandamus
to compel city and its planning commission to commence appropriation proceed- ings based on an alleged regulatory taking. Because the summary-judgment evidence was insufficient to raise triable issue on appellant’s regulatory-takings