Ohio Asphalt Paving, Inc. v. Ohio Department of Industrial Relations

589 N.E.2d 35, 63 Ohio St. 3d 512, 30 Wage & Hour Cas. (BNA) 1490, 1992 Ohio LEXIS 666
CourtOhio Supreme Court
DecidedApril 22, 1992
DocketNo. 90-2467
StatusPublished
Cited by7 cases

This text of 589 N.E.2d 35 (Ohio Asphalt Paving, Inc. v. Ohio Department of Industrial Relations) 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.

Bluebook
Ohio Asphalt Paving, Inc. v. Ohio Department of Industrial Relations, 589 N.E.2d 35, 63 Ohio St. 3d 512, 30 Wage & Hour Cas. (BNA) 1490, 1992 Ohio LEXIS 666 (Ohio 1992).

Opinions

Sweeney, J.

The instant case presents this court with two issues concerning the interpretation of the prevailing wage statutes set forth in R.C. Chapter 4115: (1) whether a contractor may be liable to pay the prevailing wage to its employees under a public improvement contract, even where the public authority fails to include prevailing wage specifications in such a contract, and (2) whether R.C. 4115.13 and 4115.132 grant the Director of ODIR broad powers to inspect any payroll record relevant to an alleged violation of Ohio’s prevailing wage law. For the reasons that follow, we answer both issues in the affirmative and therefore reverse the decision of the court of appeals.

In State, ex rel. Evans, v. Moore (1982), 69 Ohio St.2d 88, 91, 23 O.O.3d 145, 147, 431 N.E.2d 311, 313, this court stated in pertinent part: “ * * * The prevailing wage law evidences a legislative intent to provide a comprehensive, uniform framework for, inter alia, worker rights and remedies vis-a-vis private contractors, sub-contractors and materialmen engaged in the construction of public improvements in this state. The prevailing wage law delineates civil and criminal sanctions for its violation. Above all else, the primary purpose of the prevailing wage law is to support the integrity of the collective bargaining process by preventing the undercutting of employee wages in the private construction sector.” See, also, Harris v. Van Hoose (1990), 49 Ohio St.3d 24, 550 N.E.2d 461.

With respect to the first issue presented, Ohio Asphalt contends that where a public authority fails to fix the prevailing wage in a public improvement contract, the contractor is absolved from liability for failing to pay its employees the prevailing wage rate. This contention was endorsed by the appellate court below.

Appellants, ODIR and its Director, and amicus curiae, Ohio State Building and Construction Trades Council, argue that the prevailing wage provisions of R.C. Chapter 4115 are self-executing and independent of any provision present in any contract between a contractor and a public authority. Appellants submit that a contractor is required to pay the prevailing wage under a public improvement contract regardless of whether prevailing wage specifications were included in the contract.

[516]*516Our review of the various provisions of the prevailing wage statutes indicates that both the public authority and the contractor are charged with ensuring compliance with the prevailing wage provisions when entering into a public improvement contract. R.C. 4115.04 states that “ * * * [the] public authority * * * shall have the department of industrial relations determine the prevailing rates of wages * * * in the locality where the work is to be performed. * * * ”

R.C. 4115.05 states in relevant part that “[e]very contract for a public work shall contain a provision that each laborer, workman, or mechanic, employed by such contractor * * * shall be paid the prevailing rate of wages provided in this section.”

R.C. 4115.06 provides that “[i]n all cases where any public authority fixes a prevailing rate of wages under section 4115.04 * * *, the contract executed between the public authority and the successful bidder shall contain a provision requiring the successful bidder and all his subcontractors to pay a rate of wages which shall not be less than the rate of wages so fixed. The successful bidder and all his subcontractors shall comply strictly with the wage provisions of the contract.”

Also relevant to our determination in the cause sub judice is this court’s statement in Lathrop Co. v. Toledo (1966), 5 Ohio St.2d 165, 173, 34 O.O.2d 278, 282-283, 214 N.E.2d 408, 413, with respect to the duty of a contractor who has entered into a public improvement contract:

“A thread running throughout the many cases the court has reviewed is that the contractor must ascertain whether the contract complies with the Constitution, statutes, charters, and ordinances so far as they are applicable. If he does not, he performs at his peril, e.g., City of Wellston v. Morgan (1901), 65 Ohio St. 219 [62 N.E. 127], paragraph four of the syllabus; Frisbie Co. v. City of East Cleveland * * * [(1918), 98 Ohio St. 266, 120 N.E. 309], paragraph five of the syllabus; State, ex rel. Allen, v. Lutz * * * [ (1924), 111 Ohio St. 333, 145 N.E. 483]. The most articulate explanation of this principle was given in McCloud & Geigle v. City of Columbus [ (1896), 54 Ohio St. 439], at 452 and 453, [44 N.E. 95, at 96-97], where the court, in referring to private contractors, said:

“ ‘We think there is no hardship in requiring them, and all other parties who undertake to deal with a municipal body in respect of public improvements, to investigate the subject and ascertain at their peril whether the preliminary steps leading up to contract and prescribed by statute have been taken. No high degree of vigilance is required of persons thus situated to learn the facts. They are dealing with public agencies whose powers are defined by law, and whose acts are public transactions, and they should be charged with knowl[517]*517edge of both. If the preliminary steps necessary to legalize a contract, have not been taken, they can withdraw from the transaction altogether, or delay until the steps are taken. The citizen and taxpayer, in most instances, unless directly affected by the improvement has but a remote, contingent and inappreciable pecuniary interest in the matter and should not be required to personally interest himself about its details. * * *

U ( * * *

'An occasional hardship may accrue to one who negligently fails to ascertain the authority vested in public agencies with whom he deals. In such instances, the loss should be ascribed to its true cause, the want of vigilance on the part of the sufferer, and statutes designed to protect the public should not be annulled for his benefit. * *

At least one other Ohio court has also underscored the independent duty of contractors to ensure that public improvement contracts entered into are in compliance with the prevailing wage provisions. See Harris v. Davis Constr. Systems, Inc. (1986), 34 Ohio App.3d 350, 353, 518 N.E.2d 956, 959.

Given the foregoing statutory provisions and case law, we believe the court of appeals below erred in finding that Ohio Asphalt was absolved from paying the prevailing wage to its employees on the grounds that such wage rate specifications were not delineated within the body of the contract. As we read them, the prevailing wage provisions and supporting precedent unmistakably require a contractor to pay its employees the prevailing wage on all public improvement contracts covered by R.C. Chapter 4115. Simply because the public authority failed in its duty to fix the prevailing wage rates within the contracts in issue does not mean that the contractor is excused from its statutory duty of ensuring compliance. In our view, a contrary holding would undercut the express provisions of R.C. Chapter 4115 as well as prior Ohio case law that requires contractors to strictly comply with the prevailing wage provisions.

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589 N.E.2d 35, 63 Ohio St. 3d 512, 30 Wage & Hour Cas. (BNA) 1490, 1992 Ohio LEXIS 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-asphalt-paving-inc-v-ohio-department-of-industrial-relations-ohio-1992.