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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 852

## Text

%, 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.

All

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0047%3A1. Public record. Not legal advice.