Petition for Writ of Certiorari — Production Machinery Corp. v. Tango

%, Supreme Court, U.S,

PiLtes

89-146 |) mi oe

7 at a, | JOSEPH F SPANIOW JR.

N

IN THE

Supreme Court of the United States

October Term, 1988

PRODUCTION MACHINERY CORPORATION,

Petitioner,

VS.

RICHARD TANGO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Court of Appeals of Ohio

For the Eleventh Appellate District

PAUL H. HENTEMANN, Counsel of Record

35550 Curtis Boulevard, #520

Eastlake, Ohio 44094

(216) 942-5900

Attorney for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

I.

QUESTIONS PRESENTED FOR REVIEW

The Ohio Courts’ interpretation that an employer

is in violation of the state’s prevailing wage statute

when the employer uses its own employees to work

on its own building, which is sing renovated with

the aid of industrial revenue bonds, even though the

employer does not pay its employees with funds from the

industrial revenue bonds, is a constitutional interference

with the liberty of contract as guaranteed by -paragraph

1 of Article I of the Ohio Constitution as well as the

Fourteenth Amendment to the Constitution of the

United States.

SECOND ISSUE FOR CONSIDERATION

The penalty section in Ohio Revised Code 4115.10 as

applied to the Petitioner, has no relationship in the

protection of public health, morals, and safety and is an

impermissible abuse of the police power.

III.

TABLE OF CONTENTS

Questions Presented for Review.................. I

Second Issue for Consideration .................. I

eee eee IV

eke dae web es sanessaaeases 2

TE 3

ee teak eka snes een tas eee aye 4

Constitutional Provisions and Statutes

ees cen ahs acs Seba ek new eae. 5

EO ee eee ee 7

Reasons for Granting the Writ................... 14

eG ae dk WA eke ene see ses 16

Appendix:

Entry of the Supreme Court of Ohio (April 12,

kk ack cabs sess en ene eee Al

Opinion of the Court of Appeals, Lake County,

ES A2

Judgment Entry of the Court of Appeals of Lake

County, Ohio (January 3, 1989).............. All

Opinion and Judgment Entry of the Court of

Common Pleas of Lake County, Ohio

ee rrr Al2

IV.

TABLE OF AUTHORITIES

Cases

Wood v. Carpenter, 101 U.S. 135 (1879) ........... 14

Railroad Telegraphers v. Railway Express Agency,

ee Mh, SO TI a dn Ua Wo eR ek ween eneew eke 15

United States v. Kubrick, 444 U.S. 111 (1979)...... 15

No.

IN THE

Supreme Court of the United States

October Term, 1988

PRODUCTION MACHINERY CORPORATION,

Petitioner.

VS.

RICHARD TANGO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Court of Appeals of Ohio

For the Eleventh Appellate District

The Petitioner, PRODUCTION MACHINERY

CORPORATION respectfully prays that a writ of

certiorari issue to review the judgment and opinion of

the Court of Appeals of Ohio for the Eleventh Appellate

District entered in this proceeding on January 3, 1989.

2

OPINION BELOW

The opinion of the Court of Appeals of Ohio,

Eleventh Appellate District, unreported, appears in the

Appendix hereto. Also included in the Appendix is the

judgment of the Lake County Court of Common Pleas in

favor of the Respondent from which the appeal was

taken. No opinion was rendered by the Supreme Court of

Ohio, which overruled a Motion to certify the Record.

3

PARTIES BELOW

The parties below include Production Machinery

Corporation, Petitioner. The Respondent is Richard

Tango, a former employee of the Petitioner. Any and all

other parties to this litigation have been dismissed.

Production Machinery Corp. is a corporation for

profit and there are no subsidiaries or holding companies

involved therewith.

4

JURISDICTION

The judgment of the-Court of Appeals of Ohio,

Eleventh Appellate District, was entered on January 3,

1989 affirming a judgment for the Respondent entered on

November 10, 1987. The Supreme Court of Ohio, in its

discretion, pursuant to article IV, Section 2(B)(2)(d) of

the Constitution of Ohio, overruled a motion to certify

the record on April 12, 1989, and this petition for a writ

of certiorari was filed within 90 days of that date. The

jurisdiction of this Court is invoked under U.S.C. Section

1257(3). ?

5

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Article I, Paragraph 1 of the

Ohio Constitution:

‘All men are, by nature, free and independent, and

have certain inalienable rights, among which are

those of enjoying and defending life and liberty,

acquiring, possessing, and protecting property, and

seeking and obtaining happiness and safety.” °

Fourteenth Amendment to the

U.S. Constitution:

‘... nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”’

A claim for violation of Ohio’s prevailing wage law is

governed by R.C. 4115.10(A) which states in pertinent

part,

[t]he employee may file suit for recovery within

sixty days of the director of industrial relations’

determination of a violation of sections 4115.03 to

4115.16 of the Revised Code or is barred from

further action under this division.”’

“Construction” is defined as,

any construction, reconstruction, improvement.

enlargement, alteration, repair, or decorating of any

public improvement ... performed by other than

full-time employees who have completed their

probationary periods in the classified service of a

public authority.

R.C. 4115.03(B).

R.C. 4115.10 Prohibitions

‘“... Any employee upon any public improvement

who is paid less than the fixed rate of wages

applicable thereto may recover from any person,

firm, corporation, or public authority that constructs

a public improvement with its own forces the

difference between the fixed rate of wages and the

amount paid to him and in addition thereto a sum

equal in amount to such difference. .. .”’

R.C. 2305.11 Time Limitations for Bringing Certain

Actions; Extensions; Effect of Legal Disability

‘(A)... or an action upon a statute for a penalty or

forfeiture, shall be commenced within one year after

the cause of action accrued, provided that an action

by an employee for the payment of unpaid minimum

wages, unpaid overtime compensation, or liquidated

damages by reason of the nonpayment of minimum

wages or overtime compensation shall be

commenced within two years after the cause of

action accrued.”’

7

STATEMENT OF FACTS

In 1981, Petitioner purchased the Columbia Match

Company Building in Mentor, Ohio, with the intention of

converting it into a modern office building. To this end,

Petitioner hired employees as maintenance personnel. On

October 22, 1982, Petitioner hired Richard Tango,

Respondent, to work in the maintenance department. On

December 15, 1982, Petitioner executed a $2,000,000.00

Industrial Revenue Bond to renovate and convert a large

obsolete manufacturing building originally constructed in

1868 (hereinafter referred to as the ‘‘Project’’).

Although the loan agreement was executed between

the City of Mentor and Petitioner, through a series of

assignments the City of Mentor is effectively eliminated

from the transaction, and the money is borrowed from

and paid back to Bank One, Cleveland, N.A. There are

no transactions between Petitioner, the City of Mentor,

the State of Ohio, nor the Federal Government.

By qualifying as an Industrial Revenue Bond

(hereinafter referred to as “IRB’’), the interest income

earned by Bank One from Petitioner on the loan is not

fully subject to federal income tax. Thus, a lower interest

rate can be charged to the Petitioner than would

otherwise have been the case. Over the years it has been

legally determined that IRB is considered a use of public

funds and IRB projects are subject to the Ohio

Prevailing Wage Law. It is important to note that

neither federal nor state funds are used to pay for

construction of the Project. The owner pays for

construction, and receives reimbursement from the bank

in the form of a loan which the owner is obligated to

repay, in this case monthly, over a period of fifteen (15)

years.

8

In practice, periodically, normally monthly, the

owner will prepare a ‘‘draw’’ which is submitted to the

bank listing the various vendors and suppliers and the

amounts paid along with a certification. When this is

paid by the bank to the owner, the amount is added to

previous ‘‘draws’’ to arrive at a new note balance.

Interest begins to accrue immediately based on the new

balance.

General contractors employed by Appellant, all of

whose employees were paid the prevailing wage rate,

were:

Date

12/15/82

1/20/83

8/23/83

8/ 8/83

9/21/83

9/23/83

Contractor

Industrial Revenue Bond executed

Contract to Capital Contractors to

begin work, including removal of floor

in tower, demolish office space,

construction

\

Capital Contractors begin work

Capital Contractors given contract for:

gas well vauit, construction of model

suite

Contract to Alpine Heating to convert

from steam to boiler heat, including

removal of steam pipe

Capital Contractors demolished atrium

Capital Contractors demolished tower

wall

Alpine Heating ordered air-

conditioning equipment

Amt. Paid

$55,537.00

983.00

22,000.00

45,500.00

48,800.00

7,300.00

52,200.000

Date

10/21/83

11/ 9/83

11/14/83

12/17/83

12/20/83

12/20/83

1/18/84

2/ 7/84

2/10/84

3/84

6/28/84

7/11/84

9

Contractor

Contract to Capital Contractors for:

1. demolish handicap ramp )

2. brick removal )

3. demolish & reconstruct exit )

4. redo parking lot

Capital Contractors—redo roof

Capital Contractors—new boiler room

ABC Piping—demolish and install new

sprinklers on first floor

Capital Contracts—construct atrium

and toilets

Debmar Electric—electrical work

Capital Contractors—constructed first

office space

Debmar Electric—lighting

Capital Contractors—construct PM

and tenant space, including painting,

drywall

Skylight installed

Alpine Heating—installed second and

third floor air conditioning

Capital Contractors:

1. constructed banquet room

2. constructed VWV tenant space

Amt. Paid

44,440.00

34,470.00

19,800.00

8,320.00

23,000.00

238,410.00

42,900.00

49,900.00

36,000.00

110,150.00

40,000.00

82,000.00

56,000.00

37,800.00

10

In addition to the ebove mentioned contractors, the

following contractors were also employed by Appeilant

for work on the building, all of whom were paid pursuant

to the terms of the IRB:

Contractor Amt. Paid

CKS 41,100.00

Carroll Glass 13,585.65

Commercial Gas Boiler 2,920.00

Glazing Systems 6,000.00

Hi-Lite Maintenance 3,626.00

Robert C. Jones 393.00

Kotecki Monuments 532.50

Larkins Plumbing 13,788.40

R. M. Lederer Paving 22,600.00

Mentor Electric Supply 373.98

Mill Distributors 1,097.86

National Electrocoatings 9,501.94

Naturalite, Inc. 22,000.00

North American 3,543.42

Perlash Enterprises 8,305.00

Preferred Landscaping 6,843.00

Carl Ritts 1,112.73

Sherway Application Co. 110,469.00

Sullair Rentals 7,200.00

Tri-County Fence 1,370.00

Wallingford Roofing 300.00

Westinghouse 37,882.00

11

Testimony at the trial level indicated that the

Respondent was hired as a maintenance man and that

during his entire stay at Production Machinery did

miscellaneous menial jobs at the company’s ssite.

Testimony at trial indicated that the Respondent, with

others from the maintenance department, sandblasted at

the renovated building site, removed steam pipe, assisted

at work on the electrical system, and in general worked

to keep the building safe, operational, and to prevent

damage during the time that the major renovation was

being completed by the primary contractor and the

varying sub-trades. During his employ, the Respondent

helped to demolish unsanitary and unsightly rest rooms,

and did, in fact, with other employees, ‘‘jackhammer”’

the entrance way. In addition, Respondent was involved

in working around an old gas well area. On occasion,

Respondent would help a sub-trade should his talent be

required. At no time, however, did the Respondent ever

become a borrowed servant, and at all times was subject

to the control of the company supervisor and was always

paid by the Petitioner.

In 1985 Respondent Richard Tango, brought a five-

count civil action for monetary damages pursuant to Ohio

Revised Code Section 4115, et seg. against the Petitioner,

Production Machinery Corporation. A trial was had to

the Lake County Court of Common Pleas. Evidence at

the trial indicated that all contractors, both general and

subcontractors were paid the prevailing wage out of a

$2,000,000 industrial revenue bond for the renovation of

the Petitioner’s office building. The Respondent, Richard

Tango, was directly employed by Production Machinery

Corporation and did some peripheral work in the

building’s renovation, which became the focal point of

the trial court’s action. At the time of trial, three

fundamental issues were raised as defenses:

12

1. Was a company employee exempt from the

provisions of ORC 4115, et seq;

2. Was the application of the penalty provision

of Ohio Revised Code Section 4115, et seq

constitutional?

3. Was the interpretation of the Ohio Statute

of Limitations so applied to the petitioner as to

deprive him of his due process property rights?

On November 10, 1987 the court entered its findings

ordering the petitioner to pay the sum of $14,108.00 in

violation of the prevailing wage law; the additional sum

of $14,100 as a penalty for failure to pay the prevailing

wage rate; and the sum of $10,540.38 as attorney fees.

The matter was timely appealed to the Ohio State

Eleventh District Court of Appeals, on the following

Assignments of Error:

FIRST ASSIGNMENT OF ERROR:

The Trial Court erred in not finding that the

Appellee, Richard Tango, was exempt from the

provisions of Ohio Revised Code, Section 4115.03.

SECOND ASSIGNMENT OF ERROR:

The Trial Court improperly applied Section

411.10(A) of the Ohio Revised Code when it should

have applied Section 2305.11(A) of the Ohio Revised

Code in determining when Appellee Richard Tango’s

purported claim for prevailing wage began.

THIRD ASSIGNMENT OF ERROR:

Appellee Richard Tango failed in his burden of proof

in the dual aspect of the State of Ohio’s testimony

and this Appellee’s testimony.

13

FOURTH ASSIGNMENT OF ERROR:

The Trial Court abused its discretion in assessing

the penalty award and failed to apply the mandates

of Section 2305.11 of the Ohio Revised Code.

On January 3, 1989, the judgment of the trial court was

affirmed. Thereafter, the matter was timely appealed to

the Ohio State Supreme Court pursuant to a request to

the court to certify its record. The motion to certify the

record was overruled on April 12, 1989.

14

REASONS FOR GRANTING THE WRIT

Acceptance of this case by the United States

Supreme Court will have profound effect on various

aspects of Ohio’s prevailing wage law, which is

somewhat akin to the federal version of the Davis-Bacon

Act. If this Court permits the within decision to stand,

employers throughout the country will never have peace

from “‘prevailing wage’’ litigation. The magnitude of the

effect on those engaged in public works projects is

difficult to overestimate. Whereas, the right of the state

to enforce ‘‘prevailing wages’’ on contractors employed

on a project will be conceded. Nevertheless, where the

power of the state invades the right of the owner to use

his own employees on a construction project at less than

prevailing wage, then the power becomes abusive and

confiscatory. Within the question for review is the even

more subtle violation of property rights, namely abuse of

the statutes of limitations.

“Statutes of limitation are vital to the welfare of

society and are favored in the law. They are found

and approved in all systems of enlightened

jurisprudence. They promote repose by giving

security and stability to human affairs. An

important public policy lies at their foundation.

They stimulate to activity and punish negligence.

While time is constantly destroying the evidence of

rights, they supply its place by a presumption which

renders proof unnecessary. Mere delay, extending to

the limit prescribed, is itself a conclusive bar. The

bane and antidote go together.’’ Wood v. Carpenter,

101 U.S. 135, 139 (1879).

Statutes of limitations...

‘represent a pervasive legislative judgment that it

is unjust to fail to put the adversary on notice to

defend within a specified period of time and that

the right to be free of stale claims in time comes to

15

prevail over the right to prosecute them.”’ Railroad

Telegraphers v. Railway Express Agency, 321 U.S.

342, 349 (1944).

United States v. Kubrick, 444 U.S. 111, 117 (1979).

Ohio employers and owners are entitled to know

that, at some point, they will have peace from

‘‘prevailing wage” actions. When does that point arrive?

According to the Ohio courts, the answer is ‘‘never.”’

This means that a Sword of Damocles hangs over an

employer’s head for an undetermined period.

Further constitutional clarification is needed on

issues relating to minimai wage and other exemptions as

applicable to this thorny subject. As the Ohio decisions

now exist, employees will never be required to assert

their prevailing wage claims within any specified period.

The magnitude of the effects of those engaged in public

work projects in the country is difficult to overestimate.

Furthermore, potential purchasers of firms engaged in

public works will be unable to estimate with reasonable

certainty the risk of threatened litigation. For, if no

Statute of Limitations applies to “prevailing wage”

claims, such claims may be dormant for years, only to

raise their head at some unpredictable point. As the

Statute of Limitations has now been construed, there is

no way to evaluate remote, contingent claims.

In addition to all of the above, Ohio statutes relating

to the Prevailing Wage Act provide that should the

plaintiff prevail in a wage case, a penalty equal to the

size of the judgment, plus attorney fees, shall be

assessed against the losing part. It is the contention of

the Petitioner that this statutory provision imposing a

penalty upon the exercise of a right to contract is an

interference with that right and with the liberty and

rights of the parties to acquire and possess property as

guaranteed by Article I of the Ohio Constitution.

16

CONCLUSION

Based upon the foregoing, the Writ should be

granted.

Respectfully submitted,

PAUL H. HENTEMANN, Counsel of Record

35550 Curtis Blvd., #520

Eastlake, Ohio 44094

(216) 942-5900

Attorney for Petitioner

Al

APPENDIX

ENTRY OF THE SUPREME COURT OF OHIO

OVERRULING MOTION TO CERTIFY

(Dated April 12, 1989)

Case No. 89-366

THE SUPREME COURT OF OHIO

RICHARD TANGO,

Appeilee,

Vv.

PRODUCTION MACHINERY CORPORATION,

Appellant.

ENTRY

Upon consideration of the motion for an order

directing the Court of Appeals for Lake County to certify

its record, it is ordered by the Court that said motion is

overruled.

COSTS:

Motion Fee, $20.00, paid by Paul H. Hentemann.

(Court of Appeals No. 13019)

/s/ THOMAS J. MOYER

Chief Justice

A2

OPINION OF THE COURT OF APPEALS

OF LAKE COUNTY, OHIO

(Filed January 3, 1989)

Case No. 13-019

COURT OF APPEALS

ELEVENTH DISTRICT

LAKE CouNTY, OHIO

RICHARD TANGO,

Plaintiff-Appellee,

vs.

PRODUCTION MACHINERY, aka

PRODUCTION MACHINERY CORP.,

Defendant-Appellant.

OPINION

CHARACTER OF PROCEEDINGS:

Civil Appeal from Common Pleas Court Case No.

85-CIV-0543

JUDGMENT: Affirmed.

ATTY. DOUGLAS R. BAKER Atty. Topp M. RASKIN

P.O. Box 39175 33325 Bainbridge Road

Solon, Ohio 44139 Solon, Ohio 44139

(for Plaintiff-Appellee)

A3

Atty. PAUL H. HENTEMANN ANTHONY J. CELEBREZZE, JR.

Centre Plaza, South Attorney General

35550 Curtis Blvd., Suite 520 DouG.as R. FOLKERT,

Eastlake, Ohio 44094 Assistant Attorney General

(for Defendant-Appellant State of Ohio, Department of

Production Machinery) Industrial Relations

2323 West Fifth Avenue

P.O. Box 825

Columbus, Ohio 43216

(Amicus Curiae for State of

Ohio, Department of

Industrial Relations)

Forp, P.J.,

Defendant-appellant, Production Machinery Corp.,

appeals the judgment of the Lake County Court of

Common Pleas rendered November 12, 1987 in which its

employee, plaintiff-appellee Richard Tango, was awarded

money damages and attorney’s fees for appellant's

failure to pay appellee the prevailing rate of pay for the

renovation of appellant's building.

Appellant Production Machinery Corp. hired appellee

Richard Tango in October 1982 to work at a recently

purchased building owned by the appellant. Appellee’s

rate of pay was $4 per hour.

In December 1982, appellant executed an industrial

revenue bond by contract with the City of Mentor, Ohio

to obtain the finances for the necessary repairs and

renovation of the building. During the next four months,

the appellee performed various tasks, such as

sandblasting, fixture removal, electrical repair, plumbing,

jackhammering, and debris removal. He also removed a

water tank from the top of a water tower. Appellee’s

work was satisfactory and he was given a raise and

appointed the group leader.

A4

In March 1985, the Ohio Department of Industrial

Relations determined that the appellee was not paid the

prevailing wage while working on the project. Appellee

commenced a lawsuit for money damages in the Lake

County Court of Common Pleas on May 3, 1985 against

the appellant, the city of Mentor, and the Department of

Industrial Relations. Appellee dismissed the action

against the latter defendant on June 6, 1985.

At the bench trial, appellee was awarded

approximately $28,000 plus attorney’s fees in excess of

$10,000. Appellant has timely appealed that decision,

raising four assignments of error:

.. THE TRIAL COURT ERRED IN NOT

FINDING THAT THE APPELLEE, RICHARD

TANGO, WAS EXEMPT FROM THE

PROVISIONS OF OHIO REVISED CODE,

SECTION 4115.03.

Il. THE TRIAL COURT IMPROPERLY

APPLIED SECTION 4115.10(A) OF THE OHIO

REVISED CODE WHEN IT SHOULD HAVE

APPLIED SECTION 2305.11(A) OF THE OHIO

REVISED CODE IN DETERMINING WHEN

APPELLEE RICHARD TANGO’S PURPORTED

CLAIM FOR PREVAILING WAGE BEGAN.

II]. APPELLEE RICHARD TANGO FAILED IN

HIS BURDEN OF PROOF IN THE DUAL

ASPECT OF THE STATE OF _ OHIO’S

TESTIMONY AND THIS '-= APPELLEE’S

TESTIMONY.

IV. THE TRIAL COURT ABUSED ITS

DISCRETION IN ASSESSING THE PENALTY

AWARD AND FAILED TO APPLY THE

MANDATES OF SECTION 2305.11 OF THE

OHIO REVISED CODE.

A5

The issue before this court with respect to the first

assignment of error is whether the nature of appellee’s

employment brought it within the strictures of Chapter

4115 of the Revised Code requiring payment of the

prevailing wage rate, or whether it was within one of the

stated statutory exceptions contained in that chapter

that dispenses with that directive when maintenance

work is involved. Appellant asserts that the trial court

should have determined that appellee was exempt from

those provisions and that, therefore, he was not entitled

to be paid the prevailing wage for his employment with

the appellant. Specifically, the appellant argues that the

appellee performed only maintenance at the renovation

site rather than construction work. Since maintenance

work is exempt from Chapter 4115 of the Revised Code,

prevailing wages need not be paid to anybody doing this

type of work.

In its judgment entry of November 12, the trial

court found that ‘‘“*** the unchallenged fact remains that

Tango did engage to an appreciable degree in project

related activities at significant benefit to [appellant]

PMC in the form of sandblasting, jackhammering of

concrete, painting, removal of debris, walls, plumbing,

conduits and other fixtures (including a tower water tank

by asceting [sic] torch), installing a steel I-beam,

lowering a staircase and placing visqueen.”’

Appellant is challenging the factual determination by

the court that the appellee, while working on the project,

was engaged in the type of work which requires that the

prevailing wage be paid.

It is not the province of this court to re-try the

issues previously adjudicated by the trial court or to

substitute our opinion of the credibility of the witnesses

for that of the trier of fact. In re Lieberman (1955), 163

A6

Ohio St. 35. Appellant, in essence, would have this court

hold that the type of work performed by appellee was

maintenance, rather than construction work. —

The trial court determined that during the period of

time appellee worked for the appellant, his labor fell into

six categories, five of which were activities not related to

the renovation of appellant’s building. The court even

stated that one of the five categories not related to the

renovation could be classified as general maintenance

duties. Thus, although the trial court acknowledged that

the appellee did perform some maintenance on the

building, it found that the sixth category reflected the

amount of time appellee was employed at the project site

performing work which required that the prevailing wage

be paid.

The record before us on this subject indicates

adversarial evidence on this issue. Nevertheless, evidence

was presented to the trial court, which, if believed, would

support the trial court’s conclusion regarding the sixth

category of appellee’s employment and the specific items

on page three of its judgment entry it found were

construction activities performed by the appellee.

As long as some competent, credible evidence exists

with which to support the decision, we will not disturb

the decision of the trial court. C.E. Morris Co. v. Foley

Construction Co. (1978), 54 Ohio St. 2d 279. The first

assignment of error is not well taken.

Appellant asserts in its second assignment of error

that the trial court erred in finding in favor of the

appellee because it contends that the appellee's claim is

barred by the applicable statute of limitations.

A7

Appellant claims that R. C. 2305.11 is applicable

here and that any testimony regarding money damages

which might have occurred prior to the date that the

appellee filed his complaint would be precluded by the

statute of limitations.

In Harris v. J.A. Schultz & Son, Inc. (July 17, 1987),

Wood App. No. WD-86-81, unreported, the Department

of Industrial Relations of the State of Ohio filed a

complaint against an employer, claiming that the

prevailing wage in a public project had not been paid.

The trial court granted summary judgment to the

employer on the basis that the statute of limitations

found in R.C. 2305.11 precluded recovery.

Upon appeal, the Sixth District Court of Appeals

reversed the trial court, holding that R.C. 2305.11 does

not apply when the nonpayment of the prevailing wage

rate is at issue.

“The maxim of expressio unius est exclusio

alterius means that the mention of one thing implies

the exclusion of another. Erie Cty. Bd. of Edn. v.

Rhodes (1984), 17 Ohio App. 3d 35, 38; Green, Inc. v.

Smith (1974), 40 Ohio App. 2d 30, 32; 50 Ohio

Jurisprudence 2d (1961) 165, Statutes, Section 188.

This maxim is to be used as an aid in determining

legislative intent. 50 Ohio Jurisprudence 2d (1961)

167, Statutes, Section 189. When this maxim is

applied to R.C. 2305.11 it appears that the intent of

the legislature was not to include violations of the

prevailing wage act under this statute of limitations.

The express mention of specific violations to which

it does apply implies that violations of the

prevailing wage act were intentionally excluded by

the legislature.”’ Harris, supra, at 3.

We find this rationale to be convincing and hold that

pursuant to Harris, R.C. 2305.11 is inapplicable in an

action for money damages based on a claim for the

A8

nonpayment of prevailing wages when a project funded

in part by the issuance of industrial revenue bonds

pursuant to R.C. 4115.03 is involved. The second

assignment is without merit.

Appellant next asserts that the appellee did not meet

his burden of proof at the trial. It states that the

appellee supplied no competent evidence to support his

contention that he should have been paid _ the

prevailing wage. The record refiects that the appellee's

testimony may have been wanting on some points. The

trial court in fact referred to his selective recall as to the

specifics of aspects of his employment. However, this

does not mean that he did not meet his burden of proof

in establishing the nature of his employment for

purposes of compensation at the prevailing wage rate

through portions of his testimony and other evidence

offered on this subject.

The fact that the appellee could not recall when and

for how long he performed various aspects of his

employment does not negate the substance of the

evidence produced by him to demonstrate the type of

work performed by him for which the prevailing wage

should have been paid. The tenor of his testimony does

indicate that he did not specifically document the type of

functions he performed.

The specific details of appellee’s employment were

substantiated and corroborated by the testimony of his

immediate supervisor who testified that the appellee

sandblasted, used a jackhammer, removed debris and old

fixtures, and painted parts of the building.

Because of the state of the record before this court,

we cannot say that the appellee did not meet his burden

of proof to establish that he was entitled to be

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compensated at the prevailing wage rate based on the

nature of the work he performed. The third assignment is

also without merit.

Lastly, appellant claims that the trial court abused

its discretion in assessing the penalty imposed, and by

not applying R. C. 2305.11.

This contention of the appellant’s has already been

addressed in large part in our discussion under the

second assignment of error. R.C. 2305.11 is inapplicable.

R. C. 4115.10(A) states in part that:

‘‘Any employee upon any public improvement who

is paid less than the fixed rate of wages applicable

thereto may recover from such person, firm,

corporation, or public authority that constructs a

public improvement with its own forces. the

difference between the fixed rate of wages and the

amount paid to him and in addition thereto a sum

equal in amount to such difference.”

Appellant asserts that even if the appellee was

entitled to the prevailing wage, the provision providing

for the doubling of the difference between the prevailing

wage and the wage paid to him is a penalty provision

subject to a one year statute of limitations. Appellant

provides no authority for this proposition and fails to

demonstrate that the court’s attitude was unreasonable,

arbitrary or unconscionable. Therefore, we find no abuse

of discretion here. State v. Adams (1980), 62 Ohio St. 2d

151; Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217.

This assignment is without merit.

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For the foregoing reasons, the judgment of the trial

court is affirmed.

/s) DONALD R. ForD

Presiding Judge

CHRISTLEY, J.

STILLMAN, J. Ret.,

Eighth Appellate District,

sitting by assignment for

HON. ROBERT E. Cook, J.,

concur.

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JUDGMENT ENTRY OF THE COURT OF

APPEALS OF LAKE COUNTY, OHIO

(Filed January 3, 1989)

Case No. 13-019

IN THE COURT OF APPEALS

ELEVENTH DISTRICT

RICHARD TANGO,

Plaintiff-Appellee,

vs.

PRODUCTION MACHINERY, aka

PRODUCTION MACHINERY CORP.,

Defendant-Appellant.

JUDGMENT ENTRY

For the reasons stated in the opinion of this court,

the assignments of *..or are without merit, and it is the

judgment and order of this court that the judgment of

the trial court is affirmed.

/s/ DONALD R. ForD

Presiding Judge for the Court

STILLMAN, J., Ret.,

sitting by assignment.

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OPINION AND JUDGMENT ENTRY OF THE

COURT OF COMMON PLEAS

(Dated November 10, 1987)

Case No. 85 CIV 0543

IN THE COURT OF COMMON PLEAS

LAKE CouUNTY, OHIO

RICHARD TANGO,

Plaintiff,

VS.

PRODUCTION MACHINERY, aka

PRODUCTION MACHINERY CORPORATION, et ai.,

Defendants.

OPINION AND JUDGMENT ENTRY

This action is brought by plaintiff Richard Tango

against Production Machinery Corporation [hereinafter

‘““PMC”’] and City of Mentor for alleged violations of

Ohio's prevailing wage statute. A bench trial was held

October 14-15, 1986 with final briefs submitted

December 24, 1986.

Tango was hired by PMC on October 27, 1982 as an

unskilled $4.00 per hour maintenance’ worker.

Subsequent $1.00 per hour raises were given March 14,

1983 and August 20, 1984.

His duties included whatever the boss ordered,

including trade labor. Sometime early 1982, PMC began

renovation of the old Mentor Matchworks [hereinafter

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“‘project’’] using its own employees. On December 15,

1982, PMC obtained $2,000,000.00 in industrial bonds to

finance the project. Shortly thereafter, Capital

Contractors was hired as general contractor. It hired

Alpine Heating, ABC Piping and Debmar Electric.

Throughout the project, PMC employees, including

Tango, performed various duties alongside trade

workers.

Upon complaint and _ investigation, the Ohio

Department of Industrial Relations determined, on

March 4, 1985, inter alia, that Tango was not paid the

prevailing wage and was due $51,377.32, thereafter

corrected on February 18, 1986 to $40,072.16.

Excluding time spent on the Legend Lakes and

Windmill projects, periods of injury and 3% non-project

time, Tango contends the balance was project time and

compensable according to Ohio’s prevailing wage law.

PMC and City of Mentor contend significantly more

time is excluded, the statute of limitations bars pre-May

6, 1983 project work, PMC employees are statutorally

exempt, maintenance work is exempt by case law and

payment from non-project funds is exempt.

A claim for violation of Ohio’s prevailing wage law is

governed by R.C. 4115.10(A) which states in pertinent

part,

[tlhe employee may file suit for recovery within

sixty days of ‘he director of industrial relations

determination of a violation of sections 4115.03 to

4115.16 of the Revised Code or is barred from

further action under this division.

The filing on May 3, 1985 by Tango is well within sixty

days of the March 4, 1985 determination of the director

of industrial relations as specified by R.C. 4115.10(A).

Hence, the action is timely commenced.

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In Ohio, receipt of industrial revenue bond financing

requires payment of prevailing wage to all workers,

union and nonunion alike unless otherwise exempt,

engaged in any construction work on a public project.

Donahue v. Cardinal Construction Co. (1983), No. 1875

Wayne County, unreported; 1977 Ohio Atty. Gen. Ops.

No. 77-076, at 2-268; 1982 Ohio Atty. Gen. Ops. No. 82-

096, at 2-263. ‘“‘Construction”’ is defined as,

any construction, reconstruction, improvement,

enlargement, alteration, repair, or decorating of any

public improvement ... performed by other than

full-time employees who have completed their

probationary periods in the classified service of a

public authority.

R.C. 4115.03(B).

Based on the cited law and facts, it cannot be

debated that this project constituted a public project

within the meaning of Ohio’s prevailing wage law. As

such, all project related construction work must be paid

in accordance with the prevailing wage law. Left for

decision is whether and to what extend Tango performed

specific project work within this context for which

proper compensation was not made.

Common to the testimony of each witness were

accounts of Tango laboring alongside tradesmen.

Notwithstanding Tango’s selective recall nor PMC’s

inability to account for time, significant detractors of

each’s credibility, the unchallenged fact remains that

Tango did engage to an appreciable degree in project

related activities at significant benefit to PMC in the

form of sandblasting, jackhammering of concrete,

painting, removal of debris, walls, plumbing, conduits

and other fixtures (including a tower water tank by

asceting torch), installing a steel I-beam, lowering a

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staircase and placing visqueen. Tango’s inexperience and

lack of proficiency in each of these endeavors justifies

qualifying him as a general “‘laborer’’ for purposes of

computation.

Basically, Tango’s endeavors during the relevant

December 15, 1982 to August 24, 1984 period fall into

six categories. The first five are non-related project

activities which do not require prevailing wage

compensation. First, is the off-site Legend Lakes project

which involved approximately 70% of Tango’s

employment from April 20 to May 9, 1983. Second, is the

on-site though unrelated Windmi!! project which likewise

involved 70% of his employment from September 1983 to

mid-March 1984. Third, is the over 200 daily errands

documented by vouchers, receipts and expense reports

which by conservative measures comprised one hour or

12.5% of each working day. Fourth, are injuries and

workers’ compensation leave which comprised roughly

three weeks. Fifth, are Tango’s general maintenance

duties (ostensibly, the purpose of his employment) in

PMC’s offices, warehouse and grounds, i.e.: moving

equipment, repairs, vehicle service, floor cleaning and

particle control which comprised, on average, half of the

unaccounted for time in categories one through four.

The sixth category, representing the remainder,

reflects, the average percentage of time substantiated by

credible evidence Tango was actually engaged in project

related work for which payment in accordance with the

prevailing wage law was to have been but was not made.

Upon calculation, $14,108.00 in prevailing wages is due

Tango from PMC.

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In conclusion, judgment is hereby rendered in favor

of Tango against PMC and City of Mentor, jointly and

severally, in the sum of Fourteen Thousand One

Hundred and Eight Dollars ($14,108.00) together with a

like sum of Fourteen Thousand One Hundred Eight

Dollars pursuant to R.C. 4115.10(A) for a total of

Twenty-Eight Thousand Two Hundred Sixteen Dollars

($28,216.00) together with ten percent (10%) interest

from February 18, 1986. Furthermore, pursuant to R.C.

4115.10(A), Tango is hereby awarded reasonable attorney

fees, as stipulated, in the sum of Ten Thousand Five

Hundred Forty Dollars and Thirty-Eight Cents

($10,540.38). Costs of this action are assessed against

PMC and City of Mentor.

IT IS SO ORDERED.

s/ JAMES W. JACKSON

Judge of the Court of Common Pleas