Pipe Fitters Union Local No. 392 v. Kokosing Construction Co.

690 N.E.2d 515, 81 Ohio St. 3d 214
CourtOhio Supreme Court
DecidedMarch 11, 1998
DocketNo. 96-2227
StatusPublished
Cited by65 cases

This text of 690 N.E.2d 515 (Pipe Fitters Union Local No. 392 v. Kokosing Construction 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.

Bluebook
Pipe Fitters Union Local No. 392 v. Kokosing Construction Co., 690 N.E.2d 515, 81 Ohio St. 3d 214 (Ohio 1998).

Opinion

Moyer, C.J.

Appellants Kokosing and Laborers 265 argue, inter alia, that, in purportedly determining the respective rights and responsibilities of the parties pursuant to R.C. Chapter 4115 (“prevailing wage law”), the court of appeals effectively resolved a labor jurisdictional dispute, thereby exceeding the authority established by the Ohio prevailing wage laws. We hold in favor of the appellants, although our reasoning differs from that of the court of appeals. The court of appeals erred in this case not because the courts of this state are preempted from interpreting R.C. Chapter 4115, an issue we do not decide in this case. The court of appeals erred in reversing the trial court because, in exercising its authority, [218]*218the trial court correctly recognized that appellee Pipe Fitters failed to prove that any provision of R.C. Chapter 4115, properly interpreted, was violated.

I

Issues Resolved by Application of the Doctrine of Law of the Case

This court has historically recognized the doctrine of the law of the case, which establishes that the “decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 11 OBR 1, 2-3, 462 N.E.2d 410, 412. Moreover, where this court refuses jurisdiction following the issuance of an opinion by a court of appeals, the court of appeals’ opinion becomes the law of the case. Hubbard ex rel. Creed v. Sauline (1996), 74 Ohio St.3d 402, 405, 659 N.E.2d 781, 784.

In its opinion in Pipe Fitters I, the court of appeals noted that neither Kokosing nor Laborers 265 had, at that point in the litigation, challenged the standing of Pipe Fitters 392 to bring an action under the prevailing wage law of this state. We denied jurisdiction. Because the doctrine of law of the case precludes a litigant from attempting to rely on new arguments on retrial which could have been pursued in a first appeal, the appellants were precluded from challenging the standing of Pipe Fitters 392 to assert a prevailing wage claim on remand. See Beifuss v. Westerville Bd. of Edn. (1988), 37 Ohio St.3d 187, 191, 525 N.E.2d 20, 24. Therefore, we accept for purposes of this case only that a union in the position of Pipe Fitters 392 qualifies as an “interested party” as defined in R.C. 4115.03(F) and that such a union has standing to argue that members of another union have been paid less than required by the prevailing wage law. The law of the case doctrine precludes us from examining whether Laborers 265 had standing irrespective of whether its members were, or were not,- employees of a contractor who competed against Kokosing for award of the contract that was ultimately awarded to Kokosing. Cf. Internatl. Assn. of Bridge, Structural & Ornamental Iron Workers v. Ohio Bridge Corp. (1987), 32 Ohio App.3d 18, 513 N.E.2d 358.

Similarly, we note that the court of appeals’ decision in Pipe Fitters I was confined to the issue “whether appellant’s complaint [was] an effort to enforce the prevailing wage law, or whether it raise[d], in essence, a work-jurisdiction issue that is preempted by federal labor law.” Pipe Fitters I, 90 Ohio App.3d at 565, 630 N.E.2d at 31. In deciding that issue, the court held that Pipe Fitters 392’s claims of violations of Ohio prevailing wage law were not preempted by the National Labor Relations Act. We refused to accept jurisdiction of Pipe Fitters I. Thus, application of the doctrine of the law of the case requires that we accept, for purposes of this case only, that actions claiming violation of Ohio prevailing [219]*219wage law are not preempted by the federal law contained in the National Labor Relations Act.

II

Merits of Prevailing Wage Claim

Kokosing, as the contractor of a public works project, was required to pay the prevailing rate of wages as defined in R.C. 4115.03 through 4115.16 to all laborers, workmen, and mechanics it employed in performing its public improvement contract -with the city of Cincinnati. R.C. 4115.05, in governing establishment of prevailing wage rates, states, “The prevailing rate of wages to be paid for a legal day’s work, as prescribed in section 4115.04 of the Revised Code, 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.” (Emphasis added.)

Pipe Fitters 392 argues that, in determining whether a violation of R.C. 4115.05 has occurred, past industry practices in the county where the work is located is determinative of the “occupation” or “trade” of workers on the public improvement project. R.C. 4115.03(D) defines “locality” as “the county wherein the physical work upon any public improvement is performed.” Because only pipe fitters had installed process-piping at water filtration and waste-water treatment plants in Hamilton County prior to the California water works project, it claims that the proper prevailing wage for Kokosing employees who installed process-piping at the California project was that of pipe fitters, as opposed to the prevailing wage for laborers. See, also, Ohio Adm.Code 4101:9-4-10(H).1

Pipe Fitters 392 did not seek relief in the form of a judicial order requiring Kokosing to assign process-piping work at the California facility to its members rather than laborers, but argues that its action is focused on wage payment issues rather than work assignment issues. However, in arguing that R.C. Chapter 4115 requires payment of pipe fitter wages rather than laborer wages, appellee is [220]*220in substance arguing that installation of process-piping is “pipe fitter work” in Hamilton County. Pipe Fitters 392 concedes that Kokosing paid the prevailing wage required to be paid to laborers. Pipe Fitters 392’s claim that Kokosing violated prevailing wage law is valid only if its contention is correct that installation of process-piping is necessarily “pipe fitter work” in Hamilton County for purposes of R.C. Chapter 4115. Thus, in considering Pipe Fitters 392’s argument, the trial court was required to make a factual determination of whether individual work assignments made by Kokosing were assignments to do the work or craft of a trade or occupation, here either pipe fitters or laborers.

This is the ultimate issue the National Labor Relations Board would have been called upon to answer in a Section 10 proceeding under the NLRA had Pipe Fitters 392 chosen to file an unfair labor practice charge against Kokosing for improperly assigning process-piping installation work to members of the laborers union as opposed to the pipe fitters union.

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Cite This Page — Counsel Stack

Bluebook (online)
690 N.E.2d 515, 81 Ohio St. 3d 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pipe-fitters-union-local-no-392-v-kokosing-construction-co-ohio-1998.