International Union of Operating Engineers v. Dan Wannemacher Masonry Co.

521 N.E.2d 809, 36 Ohio St. 3d 74, 5 A.L.R. 5th 1106, 29 Wage & Hour Cas. (BNA) 660, 1988 Ohio LEXIS 89
CourtOhio Supreme Court
DecidedApril 13, 1988
DocketNo. 87-266
StatusPublished
Cited by4 cases

This text of 521 N.E.2d 809 (International Union of Operating Engineers v. Dan Wannemacher Masonry Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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International Union of Operating Engineers v. Dan Wannemacher Masonry Co., 521 N.E.2d 809, 36 Ohio St. 3d 74, 5 A.L.R. 5th 1106, 29 Wage & Hour Cas. (BNA) 660, 1988 Ohio LEXIS 89 (Ohio 1988).

Opinions

Moyer, C.J.

The sole issue presented by this appeal is whether a sole proprietor who personally performs physical work as a laborer, workman, or mechanic in the construction of a public improvement and who pays his employees prevailing wages, is himself subject to Ohio’s prevailing wage law, R.C. 4115.03 through 4115.16. For the reasons stated below, we hold that such a sole proprietor is not subject to the law and, accordingly, affirm the judgment of the court of appeals. Our holding in this case is expressly limited to an employer who is a sole proprietor.

The primary provisions of the prevailing wage law applicable to this case are R.C. 4115.03(C) and (F), 4115.05, 4115.10(A) and 4115.16. R.C. 4115.10(A) is a general provision prohibiting the payment of less than the prevailing wage for workers on certain public improvement projects. R.C. 4115.10(A) provides:

“No person, firm, corporation, or public authority that constructs a public improvement with its own forces the total overall project cost of which is fairly estimated to be more than four thousand dollars shall violate the wage provisions of sections 4115.03 to 4115.16 of the Revised Code, or suffer, permit, or require any employee to work for less than the rate [76]*76of wages so fixed, or violate the provisions of section 4115.07 of the Revised Code. 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. The 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. Where the employee prevails in a suit, the employer shall pay the costs and reasonable attorney’s fees allowed by the court.”

R.C. 4115.05 mandates the use of locally prevailing wages to determine the minimum wages on public projects. R.C. 4115.05 states in part:

“The prevailing rate of wages to be paid for a legal day’s work * * * to laborers, workmen, or mechanics upon public works shall not be less at any time during the life of a contract for the public work than the prevailing rate of wages then payable in the same trade or occupation in the locality where such public work is being performed, under collective bargaining agreements or understandings, between employers and bona fide organizations of labor in force at the date the contract for the public work, relating to the trade or occupation, was made, and collective bargaining agreements or understandings successor thereto.
“Every contract for a public work shall contain a provision that each laborer, workman, or mechanic, employed by such contractor, subcontractor, or other person about or upon such public work, shall be paid the prevailing rate of wages provided in this section.”

R.C. 4115.163 authorizes interested parties, defined in R.C. 4115.03 [77]*77(F),4 to include a bona-fide labor organization, such as Local 18, to file a complaint with the Director of Industrial Relations alleging a violation of the prevailing wage law, and to pursue such complaint in common pleas court either by appeal if the director determines no violation has occurred or by a new complaint if the director fails to rule on the merits of the complaint within sixty days after its filing.

Local 18 contends that the courts below erred in concluding that because the prevailing wage law only applies to employees and Daniel Wannemacher, as a sole proprietor, was not an employee, the law did not apply to him even though he performed work as a “laborer,” “workman,” or “mechanic.” We disagree.

R.C. 4115.10(A) states that “[a]ny employee upon any public improvement who is paid less than the * * * [prevailing wage] may recover * * * 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. The employee may file suit for recovery * * *. Where the employee prevails in a suit, the employer shall pay the costs and reasonable attorney’s fees allowed by the court.” (Emphasis added.)

R.C. 4115.05 provides that “[e]very contract for a public work shall contain a provision that each laborer, workman, or mechanic, employed by such contractor, subcontractor, or other person about or upon such public work, shall be paid the prevailing rate of wages provided in this section.” (Emphasis added.)

We must assume that the General Assembly intended to make a distinction between employers and employees in drafting R.C. Chapter 4115. “Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” R.C. 1.42. In Home Indemn. Co. v. Plymouth (1945), 146 Ohio St. 96, 32 O.O. 30, 64 N.E. 2d 248, paragraph one of the syllabus, this court gave the following definition of “employee”: “An employee is a person who works for another for salary and wages, and the term is usually applied only to clerks, workmen and laborers, and rarely to the higher officers of a corporation or government or to domestic servants.” Other statutes clearly distinguish between employers and employees. See, e.g., R.C. 3309.01, 4101.01 and 4111.01. See, also, Section 152, Title 29, U.S. Code.

Black’s Law Dictionary (5 Ed. 1979) 471, defines “employee” as follows:

“A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed. * * * [Citation omitted.] One who works for an employer; a person working for salary or wages.
“Generally, when person for whom services are performed has right to control and direct individual who performs services not only as to result to be accomplished by work but also as to details and means by which result is accomplished, individual subject to direction is an ‘employee.’
ilifi * *
“* * * ‘[E]mployee’ must be distinguished from ‘independent contractor,’ ‘officer,’ ‘vice-principal,’ ‘agent,’ etc.”
“Employer” is defined as “[o]ne [78]*78who employs the services of others; one for whom employees work and who pays their wages or salaries. The correlative of ‘employee.’ ” Id.

Clearly, then, an employer is not an employee. Given the common usage of the terms “employer” and “employee” and the absence of any statutory incorporation of the term “employer,” we conclude that the use of “employee” in R.C. Chapter 4115 does not encoirtpass the term “employer” when the employer is a sole proprietor who has not used his status as a sole proprietor to gain an unfair advantage in bidding on public improvement projects.

Our conclusion is not contrary to the purpose of the prevailing wage law.

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521 N.E.2d 809, 36 Ohio St. 3d 74, 5 A.L.R. 5th 1106, 29 Wage & Hour Cas. (BNA) 660, 1988 Ohio LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-union-of-operating-engineers-v-dan-wannemacher-masonry-co-ohio-1988.