[Cite as Sheet Metal Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s Refrigeration, 

Heating & Air Conditioning, Inc., 122 Ohio St.3d 248, 2009-Ohio-2747.] 

SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION,

LOCAL UNION NO. 33, APPELLEE, v. GENE’S REFRIGERATION,

HEATING & AIR CONDITIONING, INC., APPELLANT. 

[Cite as Sheet Metal Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s 

Refrigeration, Heating & Air Conditioning, Inc., 

122 Ohio St.3d 248, 2009-Ohio-2747.] 

Labor — Prevailing wage — R.C. 4115.03(F) — Labor organization that obtains 

authorization to represent one employee does not have standing as an 

“interested party” to pursue violations of prevailing-wage law on another 

employee’s behalf — R.C. 4115.05 — Prevailing-wage requirement does 

not extend to persons whose work is performed off the site of the public 

improvement project. 

(No. 2008-0780 — Submitted January 14, 2009 — Decided June 17, 2009.) 

APPEAL from the Court of Appeals for Medina County, 

No. 06CA0104-M, 2008-Ohio-1005. 

__________________ 

SYLLABUS OF THE COURT

1. A labor organization that obtains written authorization to represent one 

employee does not have standing as an “interested party” under R.C. 

4115.03(F) to pursue violations of the prevailing-wage law on behalf of 

any other employee on the project. 

2. R.C. 4115.05 applies only to persons whose work is performed directly on the 

site of the public improvement project. (Clymer v. Zane (1934), 128 Ohio 

St. 359, 191 N.E. 123, approved and followed.) 

__________________ 

LUNDBERG STRATTON, J.

{¶ 1} This case involves two legal issues interpreting Ohio’s prevailingwage laws. First, we must determine whether a labor organization that obtains 
SUPREME COURT OF OHIO

2 

written authorization to represent one employee has standing as an “interested 

party” to pursue violations of prevailing-wage law on behalf of any other 

employee on the project. Second, we must determine whether shop employees 

who work off-site manufacturing materials to be used in or in connection with a 

public improvement project are entitled to prevailing-wage rates. 

{¶ 2} For the reasons that follow, we hold that a labor organization that 

is an “interested party” under R.C. 4115.03(F) may file a prevailing-wage 

complaint only on behalf of the employee who specifically authorized the action, 

and R.C. 4115.05 applies only to persons whose work is performed directly on the 

site of the public improvement project. Therefore, we reverse the judgment of the 

court of appeals and reinstate the trial court’s judgment. 

I. Facts 

{¶ 3} Sheet Metal Workers’ International Association, Local No. 33, 

appellee (“Local 33”), is a bona fide labor organization that negotiates with 

employers concerning wages, hours, terms, and conditions of employment. 

Gene’s Refrigeration, Heating & Air Conditioning, Inc., appellant (“Gene’s”), is a 

contractor as defined by Ohio Adm.Code 4101:9-4-02(H) that performs both field 

construction work and in-shop sheet-metal fabrication. Gene’s was awarded a 

contract for the construction of the Grainger Fire Station (“project”) located in 

Medina County, Ohio. The project was a public improvement within the meaning 

of Ohio’s prevailing-wage law, R.C. 4115.03 et seq. 

{¶ 4} Local 33 filed a complaint against Gene’s for violations of the 

prevailing-wage law on the Grainger project. Local 33 was not the bargaining 

representative for Gene’s employees; however, it alleged that it had standing as an 

“interested party” under R.C. 4115.03(F)(3) based upon the written authorization 

of Elie Cherfan, an employee in Gene’s off-site fabrication shop. The complaint 

asserted multiple prevailing-wage violations by Gene’s that involved reporting, 

recordkeeping, notification, and wage requirements on the entire project. 
January Term, 2009 

3 

{¶ 5} The parties filed cross-motions for summary judgment on two 

legal issues: whether Local 33 has standing to sue on behalf of anyone other than 

Elie Cherfan, and whether the prevailing-wage law applies to employees who 

performed shop work off the project site. The trial court denied the motions. 

{¶ 6} The parties filed a joint motion to reconsider and stipulated to the 

following facts. Gene’s performs both construction work on the site and sheetmetal fabrication of duct work in an off-site shop. Elie Cherfan was an employee 

of Gene’s in the off-site fabrication shop. Gene’s paid employees of its off-site 

fabrication shop, including Elie Cherfan, at regular nonprevailing-wage rates. 

{¶ 7} Elie Cherfan gave written authorization to Local 33 to represent 

him for purposes of bringing a prevailing-wage complaint and enforcement 

action. In July 2005, Local 33 filed an administrative prevailing-wage complaint 

as an interested party pursuant to R.C. 4115.16(A) with the director of the Ohio 

Department of Commerce, asserting violations of Ohio’s prevailing-wage law. 

After more than 60 days elapsed from the date of filing with no ruling by the 

director, Local 33 filed a complaint in the Court of Common Pleas of Medina 

County as permitted by R.C. 4115.16(B) with similar allegations of prevailingwage infractions. 

{¶ 8} Upon reconsideration, a magistrate concluded that Elie Cherfan 

was the only employee of Gene’s to expressly authorize Local 33 to represent him 

in this action. Thus, Local 33 had standing only on behalf of Elie Cherfan. 

Further, the shop work that Cherfan performed off-site from the public 

improvement project was not subject to the wage law. The magistrate granted 

Gene’s motion for summary judgment. The trial court adopted the magistrate’s 

decision. 

{¶ 9} The court of appeals reversed and remanded, concluding that 

Cherfan’s written authorization allowing Local 33 to represent him was sufficient 

to impute standing to Local 33 with respect to the entire project and all of Gene’s 
SUPREME COURT OF OHIO

4 

employees. Medina App. No. 06CA0104-M, 2008-Ohio-1005, ¶ 22. The court 

further held that R.C. 4115.05 expressly provides for payment of the prevailing 

wage to off-site employees, in particular, employees who fabricate materials to be 

used in or in connection with a public work. Thus, the court held, Clymer v. Zane

(1934), 128 Ohio St. 359, 191 N.E. 123, has been superseded by the legislature. 

Id. at ¶ 39. 

{¶ 10} The cause is before this court upon the acceptance of a 

discretionary appeal. 118 Ohio St.3d 1505, 2008-Ohio-3369, 889 N.E.2d 1024. 

II. Standing as an “Interested Party” 

{¶ 11} R.C. 4115.16(A) authorizes an “interested party” to file a 

complaint with the director of commerce alleging a prevailing-wage violation. 

R.C. 4115.16(B) authorizes the “interested party” to file a complaint in the court 

of common pleas of the county in which the violation allegedly occurred if the 

director has not ruled on the merits within 60 days. An “interested party” with 

respect to a particular public improvement is defined in R.C. 4115.03(F) as: 

{¶ 12} “(1) Any person who submits a bid for the purpose of securing the 

award of a contract for construction of the public improvement; 

{¶ 13} “(2) Any person acting as a subcontractor of a person mentioned in 

division (F)(1) of this section; 

{¶ 14} “(3) Any bona fide organization of labor which has as members or 

is authorized to represent employees of a person mentioned in division (F)(1) or 

(2) of this section and which exists, in whole or in part, for the purpose of 

negotiating with employers concerning the wages, hours, or terms and conditions 

of employment of employees; 

{¶ 15} “(4) Any association having as members any of the persons 

mentioned in division (F)(1) or (2) of this section.” (Emphasis added.) 

{¶ 16} The parties have stipulated that Local 33 is an interested party 

under R.C. 4115.03(F)(3) on behalf of Elie Cherfan. The issue before us is 
January Term, 2009 

5 

whether Local 33’s status as an interested party based on Cherfan’s authorization 

extends to apply to all employees of the employer on a project wide basis. 

{¶ 17} In Sheet Metal Workers’ Internatl. Assn., Local Union No. 33 v. 

Mohawk Mechanical, Inc. (1999), 86 Ohio St.3d 611, 716 N.E.2d 198, we 

examined a union’s status as an “interested party” with respect to nonunion 

employees who worked for Mohawk, a subcontractor on a public improvement 

project. At the time, the union was attempting to organize Mohawk employees. 

When the union discovered that Mohawk was not paying prevailing wages to 

employees working on the project, it filed a complaint under R.C. 4115.16(A). 

Three Mohawk employees gave the union written authorization to pursue the 

action after it was filed. 

{¶ 18} We held that the union had standing as an interested party. The 

employees worked for Mohawk, a subcontractor for “a person mentioned in 

division (F)(1)” of R.C. 4115.03, and although the union did not negotiate for 

these employees, at least three of them gave the union written authorization to 

represent them in the prevailing-wage action. Id. at 614, 716 N.E.2d 198. 

{¶ 19} The court of appeals in the instant case relied on the statement in 

Mohawk that “[t]he statute does not require that a majority of employees authorize 

the representation” to support its conclusion that Cherfan’s written authorization 

alone is sufficient to allow Local 33 to represent all employees on the project. 

2008-Ohio-1005, ¶ 21, quoting Mohawk, 86 Ohio St.3d at 614, 716 N.E.2d 198. 

We do not read Mohawk so broadly. In Mohawk, the union had filed the 

complaint prior to obtaining authority from any employee. We decided that the 

written authorization of the three employees was sufficient for purposes of R.C. 

4115.03(F)(3) and that the union need not have authorization from a majority of 

the employees or have represented the employees for purposes of collective 

bargaining in order to acquire “interested party” status. 
SUPREME COURT OF OHIO

6 

{¶ 20} Furthermore, Mohawk is distinguishable because the three 

Mohawk employees worked on the public improvement job site. Here, Cherfan is 

employed in an off-site shop and has not established that he is entitled to the 

prevailing wage. Thus, his ability to represent the interests of other employees on 

the project is even more tenuous. 

{¶ 21} The definition of “interested party” in R.C. 4115.03(F)(3) refers to 

an “organization of labor which * * * is authorized to represent employees of a 

person mentioned in division (F)(1) or (2),” as opposed to union members. 

(Emphasis added.) Thus, the union is an interested party for and may act on 

behalf of the employee who expressly authorized the union to act. In addition, the 

text of Cherfan’s authorization expressly designates Local 33 to represent only 

Cherfan: 

{¶ 22} “Of my own free will, I hereby authorize Sheet Metal Workers 

Local 33, its agents and/or representatives to represent me in all matters 

pertaining to my claims regarding any and all prevailing wage issues * * * . This 

authorization * * * is effective as of the date I signed it and will remain in effect 

until I revoke it in writing.” (Emphasis added) 

{¶ 23} The dissent in Mohawk aptly explained that an employee’s 

authorization “is analogous to the creation of an attorney-in-fact relationship.” 

Mohawk, 86 Ohio St.3d at 616, 716 N.E.2d 198 (Moyer, C.J., dissenting). To 

allow the union to bring a complaint on behalf of employees who did not 

authorize the union to act on their behalf would violate the employees’ right to 

select their own legal counsel or labor representative. Thus, one employee’s 

authorization does not extend to all remaining employees. 

{¶ 24} Cherfan’s authorization does not confer interested-party status 

upon Local 33 to pursue prevailing-wage violations on a projectwide basis for 

employees other than Cherfan. Cherfan’s authorization does not convey carte 

blanche to the union to pursue claims on behalf of persons who have not agreed to 
January Term, 2009 

7 

such actions. Therefore, we hold that a labor organization that obtains written 

authorization to represent one employee does not have standing as an “interested 

party” under R.C. 4115.03(F) to pursue violations of the prevailing-wage law on 

behalf of any other employee on the project, and we reverse the judgment of the 

court of appeals on this issue. Local 33 has standing to pursue prevailing-wage 

claims on behalf of Cherfan only. 

III. Prevailing Wage 

{¶ 25} Next, we must determine whether the prevailing-wage law, R.C. 

4115.05, applies to an employee whose work is not performed on the actual 

project site but who works on materials that will be used in or in connection with 

the project. Local 33 has filed a prevailing-wage claim on behalf of Cherfan. We 

must decide whether Cherfan, who fabricated ductwork for the project at Gene’s 

off-site fabrication shop, is entitled to the prevailing wage. 

{¶ 26} “The prevailing wage statutes, R.C. 4115.03 through R.C. 4115.16, 

require contractors and subcontractors for public improvement projects to pay 

laborers and mechanics the so-called prevailing wage in the locality where the 

project is to be performed.” J.A. Croson Co. v. J.A. Guy, Inc. (1998), 81 Ohio 

St.3d 346, 349, 691 N.E.2d 655. 

{¶ 27} Gene’s contends that the prevailing-wage law applies only to work 

performed on the project site, citing Clymer v. Zane, 128 Ohio St. 359, 191 N.E. 

123, in which this court held that persons who were working off-site in a gravel 

pit were not employees on the public improvement highway project (entitled to 

the prevailing wage) even though the project’s contractor owned and operated the 

gravel pit and its materials were used on the project. 

{¶ 28} The court of appeals in this case concluded that the prevailingwage statutes were amended the year following Clymer to expressly recognize an 

off-site employee’s right to be paid at the prevailing rate, thus superseding 

Clymer. Id., 2008-Ohio-1005, ¶ 33. The appellate court interpreted the current 
SUPREME COURT OF OHIO

8 

version of R.C. 4115.05 as mandating prevailing wages for labor “upon any 

material to be used in or in connection with a public work,” including work that is 

not performed on the project site. Id. at ¶ 39. 

{¶ 29} There is no reference in R.C. 4115.05 to where the work must be 

performed, i.e., whether it must be directly on the project site or be performed offsite. When a statute is subject to varying interpretations, it is ambiguous and we 

must construe it in a manner that carries out the intent of the General Assembly. 

Harris v. Van Hoose (1990), 49 Ohio St.3d 24, 26, 550 N.E.2d 461. We look to 

the language of the statute, the circumstances under which the statute was 

enacted, legislative history, and the consequences of a particular construction 

when determining the intention of the legislature. R.C. 1.49; Cleveland Mobile 

Radio Sales, Inc. v. Verizon Wireless, 113 Ohio St.3d 394, 2007-Ohio-2203, 865 

N.E.2d 1275, ¶ 12. 

A. History of Prevailing-Wage Legislation 

{¶ 30} Ohio enacted its first prevailing-wage statutes in 1931 “[t]o 

establish a fair rate of wages to be paid to workmen and mechanics employed in 

construction of public improvements.” H.B. No. 3, 114 Ohio Laws, 116. The 

new legislation closely resembled the federal Davis-Bacon Act of 1931, 46 Stat. 

1494, which required that laborers or mechanics employed by the contractor or 

any subcontractor in the construction, alteration, or repair of any public buildings 

be paid not less than the prevailing rate of wages for work of a similar nature. 

{¶ 31} In 1932, Ohio’s attorney general issued an opinion that the 

statutory minimum-wage rate did not apply to workers who merely furnish or 

deliver materials to the construction project (but do not install or fabricate). 1932 

Atty.Gen.Ops. No. 4836. In 1934, this court decided Clymer, which held that 

persons working off-site in a gravel pit are not considered employees on a public 

highway project that used the gravel and are not entitled to the prevailing wage. 

Clymer, 128 Ohio St. 359, 191 N.E. 123. 
January Term, 2009 

9 

{¶ 32} In 1935, the General Assembly amended the prevailing-wage law, 

adding the “material to be used” language that now appears in R.C. 4115.05 and 

is at issue here.1 The amendment does not reflect any legislative history or 

explanation for the changes. There is no indication that the amendment was 

intended to legislatively overrule or supersede Clymer, and Local 33 offers no 

support for that assertion. Although R.C. 4115.05 has since been amended 

several times since 1935, the “material to be used” language at issue has remained 

consistent.2

B. Statutory Interpretation 

{¶ 33} The appellate court relied upon the language in the sixth paragraph 

of R.C. 4115.05: “The prevailing rate of wages to be paid for a legal day’s work, 

to laborers, workers, or mechanics, upon any material to be used in or in 

connection with a public work, shall be not less than the prevailing rate of wages 

payable for a day’s work in the same trade or occupation in the locality within the 

state where such public work is being performed and where the material in its 

final or completed form is to be situated, erected, or used.” (Emphasis added.) 

{¶ 34} R.C. 4115.05 does not specifically refer to persons whose work is 

conducted away from or off the project site. Other paragraphs within R.C. 

4115.05 and elsewhere in the prevailing-wage statutory scheme, however, provide 

insight into the scope of the law. First, R.C. 4115.05 provides that “[t]he 

prevailing rate of wages to be paid * * * to laborers, workers, or mechanics upon 

 

1. G.C. 17-4a provided: “The wages to be paid for a legal day’s work, to laborers, workmen or 

mechanics upon any material to be used upon or in connection [with the public work], shall not be 

less than the prevailing rate for a day’s work in the same trade or occupation in the locality within 

the state where such public work on, about or in connection with such labor is performed in its 

final or completed form is to be situated, erected or used * * *.” 116 Ohio Laws, Part I, 207. 

2. G.C. 17-4a; 116 Ohio Laws 206; 118 Ohio Laws 587; 128 Ohio Laws 936; 131 Ohio Laws 

993; 135 Ohio Laws, Part II, 1148; 137 Ohio Laws, Part II, 3854; 141 Ohio Laws, Part II, 2836; 

146 Ohio Laws, Part V, 9632; 148 Ohio Laws, Part II, 4608. 
SUPREME COURT OF OHIO

10 

public works shall not be less * * * than the prevailing rate of wages then payable 

in the same trade or occupation in the locality where such public work in being 

performed * * *,” and “[e]very contract for a public work shall contain a 

provision that each laborer, worker, 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.) 

{¶ 35} In addition, R.C. 4115.10(A) provides that “[a]ny employee upon 

any public improvement * * * who is paid less than the fixed rate of wages 

applicable thereto may recover * * * the difference between the fixed rate of 

wages and the amount paid * * * .” (Emphasis added.) R.C. 4115.10(B) 

authorizes “[a]ny employee upon any public improvement who is paid less than 

the prevailing rate” to file a complaint with the director of commerce. (Emphasis 

added.) R.C. 4115.032 refers to “[c]onstruction on any project” and “contractors 

and subcontractors working on such projects” who “shall be subject to and 

comply with sections 4115.03 to 4115.16 of the Revised Code.” (Emphasis 

added.) Thus, the law provides that only those on the job site may file a 

complaint and recover if prevailing wage is not paid, and only those working on 

the public improvement projects are subject to prevailing-wage statutes. 

{¶ 36} In addition, the director of the Department of Commerce is 

charged with overseeing enforcement of prevailing-wage laws and with 

determining the applicable prevailing wage for a project. R.C. 4115.032. The 

schedule of rates must be posted “on the site of the work.” R.C. 4115.07. 

Therefore, the isolated reference in R.C. 4115.05 to “any material” does not 

comport with the intent of the overall statutory scheme. 

{¶ 37} In 1990, the Department of Commerce adopted administrative 

regulations, Ohio Adm.Code 4101:9-4 et seq., to facilitate administering the 

prevailing-wage laws. These regulations were adopted following extensive 

hearings in which both industry employers and organized labor had opportunities 
January Term, 2009 

11 

to voice their concerns. They likewise refer to work performed on the job site and 

do not refer to off-site workers as being entitled to prevailing-wage rates. 

{¶ 38} Statutes and regulations that relate to the same general subject 

matter may be read in pari materia in order to discover and carry out legislative 

intent. State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 

2007-Ohio-4920, 874 N.E.2d 780, ¶ 13. Construing the language of the entire 

prevailing-wage statutory scheme along with related regulations, we conclude that 

the General Assembly did not overrule Clymer, and R.C. 4115.05 does not 

mandate that prevailing wages be paid to persons who work off-site even if they 

are working on materials to be used on or in connection with the project. The 

phrase “any material to be used upon or in connection with” in R.C. 4115.05 must 

be interpreted as referring to materials on the job site. 

C. Industry Custom and Practice 

{¶ 39} Several labor and trade organizations filed amicus briefs in this 

case. They acknowledge that the construction industry has continued to follow 

Clymer since the laws were amended in 1935 and applies prevailing-wage laws 

only to workers on the project site. The position advocated by Local 33 and its 

amici constitutes a departure from current practice. If the General Assembly had 

intended to legislatively overrule Clymer and expand the prevailing-wage 

mandates more than 70 years ago, the applicability of the law would surely have 

been challenged before now. The appellate court’s conclusion is contrary to 

current industry standards and practices that continue to apply Clymer. 

D. Unworkable Consequences 

{¶ 40} The appellate court modified the prevailing-wage statute to create 

a rule for off-site workers. The appellate court tailored application of its 

interpretation to those off-site workers with an “intimate connection” between the 

material to be used in or in connection with the public work and the off-site work, 

thereby adding its own qualifications to the statutory language. The court 
SUPREME COURT OF OHIO

12 

reasoned that this would enable employers to trace materials made specifically for 

a particular public work for purposes of paying the off-site workers the prevailing 

wage. 2008-Ohio-1005, at ¶ 37. Thus, although the statute did not so specify, the 

court of appeals concluded, with respect to the off-site fabrication work, that the 

materials must be fabricated specifically for the project rather than prefabricated 

materials made in the ordinary course of business by suppliers for use by any and 

all purchasers. Id. 

{¶ 41} However, the dissenting judge in the appellate court questioned the 

majority’s modified interpretation: “The majority attempts to limit the practical 

effects of its holding, but one might fairly ask at what point the fabrication 

process achieves the ‘intimate connection’ that the majority envisions. When a 

contractor produces duct work in the normal course of its business for its own use 

in construction activities, is the connection established when some of its materials 

are used in relation to a public improvement? Must the fabricator of materials that 

are incorporated in machines used in job assembly pay the prevailing wage 

because the machine is ultimately used ‘in connection with a public work’? When 

certain off-site employees are paid for fabrication of materials, how is the fraction 

of their time spent on those items that become part of a public improvement to be 

determined and compensated out of an entire working day? Must a contractor now 

record those fractions of working time spent by off-site employees whose work 

bears a tangential relationship to material used in public improvements? Simply 

put, the rule is unworkable.” 2008-Ohio-1005, ¶ 50. 

{¶ 42} The rule created by the appellate court in this case changes the 

industry custom and practice in place since Clymer. It interjects uncertainty into a 

process by creating a new standard. However, the court is not the proper forum to 

determine these difficult policy issues raised by the parties and amici. These 

issues should be addressed by the General Assembly in a public forum with input 

from all competing interests, including all labor organizations affected. Such a 
January Term, 2009 

13 

departure from current prevailing-wage law, custom, and practice properly belong 

in the legislative domain as a matter of public policy. 

{¶ 43} Therefore, construing the prevailing-wage statutory scheme and 

administrative regulations in pari materia, and in conjunction with industry 

custom and practice, we hold that R.C. 4115.05 applies only to persons whose 

work is performed directly at the site of the public improvement project and that 

Clymer v. Zane has not been legislatively superseded. 

IV. Conclusion 

{¶ 44} Local 33 is an interested party under R.C. 4115.03(F) on behalf of 

Elie Cherfan only, based upon his written authorization. This interested-party 

status does not extend to any other employee on a projectwide basis. In addition, 

R.C. 4115.05 applies only to persons whose work is performed directly on the site 

of the public improvement project. Because Elie Cherfan did not work on the 

project site, he is not entitled to the prevailing-wage rate. Consequently, we 

reverse the judgment of the court of appeals and reinstate the trial court’s 

judgment. 

Judgment reversed. 

 MOYER, C.J., and O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ., 

concur. 

 PFEIFER, J., dissents. 

__________________ 

PFEIFER, J., dissenting. 

{¶ 45} I dissent from the majority’s holdings as to standing and as to 

whether the prevailing-wage statute applies to the facts of this case. 

{¶ 46} As for standing, the majority misinterprets the statutes at issue. 

Being “authorized to represent employees” makes a labor organization an 

“interested party” under R.C. 4115.03(F). Then, we proceed to R.C. 4115.16(B). 

As an “interested party,” that labor organization pursuant to R.C. 4115.16(B) 
SUPREME COURT OF OHIO

14 

“may file a complaint in the court of common pleas of the county in which the 

violation is alleged to have occurred.” No statute limits a labor organization’s 

standing to the person or persons who authorize the labor organization to 

represent employees. The authorization makes the labor organization an 

“interested party.” The labor organization itself, upon filing, becomes the party in 

the lawsuit– notice that there is no “et al.” after the labor organization’s name in 

our own case heading. It is filing the complaint on behalf of itself; it is raising the 

issue of an employer’s failure to pay the prevailing wage, in the same way a 

contractors’ association could file a complaint pursuant to R.C. 4115.03(F)(4)—

under which such an association is an “interested party”—and 4115.16. Would 

the majority worry about how a contractors’ association did not represent any of 

the workers who might benefit from a successful claim? 

{¶ 47} As for the prevailing-wage issue, let us look at the facts of this 

case. Gene’s Refrigeration, Heating & Air Conditioning, Inc. (“Gene’s”) bid on 

the Granger fire station project. Gene’s employees fabricated the ductwork that 

other Gene’s employees would install. This ductwork was not purchased off the 

shelf from a vendor and was not already in Gene’s inventory. It was specifically 

fabricated for this specific job. 

{¶ 48} We move to the statute: 

{¶ 49} “The prevailing rate of wages to be paid for a legal day's work, to 

laborers, workers, or mechanics, upon any material to be used in or in connection 

with a public work, shall be not less than the prevailing rate of wages payable for 

a day's work in the same trade or occupation in the locality within the state where 

such public work is being performed and where the material in its final or 

completed form is to be situated, erected, or used.” (Emphasis added.) R.C. 

4115.05. 

{¶ 50} The ductwork here was “material to be used in * * * a public 

work.” We really need not go further. But the majority does; in its analysis of 
January Term, 2009 

15 

R.C. 4115.05, the majority installs ellipses where the statute establishes that the 

prevailing wage for work on materials used in connection with the public work 

shall be the prevailing wage in the locality “where the material in its final or 

completed work or completed form is to be situated, erected, or used.” The 

statute thus contemplates that some materials for a public work might sometimes 

be fabricated off-site and establishes that in such a case, the off-site work still 

qualifies for the prevailing wage; the wage to be paid is the prevailing wage in the 

locality of the public work. The majority willfully ignores that section of R.C. 

4115.05 and instead embarks on jurisprudence by preposition, insisting that work 

“on” or “upon” a public work connotes geographical presence rather than the 

purpose of the work. Under the majority’s unique application of prepositions, 

working “on” a judicial opinion would require the writer to perch atop his or her 

computer screen while crafting an opinion. The majority’s locus focus is hocus 

pocus. 

{¶ 51} The prevailing-wage statutory scheme at issue in this case is not 

ambiguous and does not require any divination of legislative intent. That the 

statute changed after this court’s decision in Clymer v. Zane (1934), 128 Ohio St. 

359, 191 N.E. 123, is remarkable only for the reason that Clymer is good 

precedent only for a statute that no longer exists. The statute changed after 

Clymer by adding the “material to be used” language that is at issue in this case. 

The majority relates that “[t]he amendment does not reflect any legislative history 

or explanation for the changes. There is no indication that the amendment was 

intended to legislatively overrule or supersede Clymer, and Local 33 offers no 

support for that assertion.” Majority opinion at ¶ 32. First, our job is to interpret 

the statute as written, not to puzzle over motivations. Second, statements of 

legislative intent and concomitant referrals to specific holdings of the Ohio 

Supreme Court are only recent developments. Legislative etiquette has changed; 

formerly, it was a cardinal sin to insert legislative intent into a bill, and that policy 
SUPREME COURT OF OHIO

16 

was strictly enforced by legislative leaders and by the Legislative Service 

Commission. If the General Assembly had intended to legislatively overrule 

Clymer, it certainly would not have said so. 

{¶ 52} The majority foresees doom if Local 33 were to prevail today. But 

let us concern ourselves only with this case, not a parade of horribles. In this 

case, Gene’s employees were working on site-specific fabrications; the material 

they created was for the public project and was not fungible. The employees at 

issue worked for Gene’s, who was a winning bidder on the public project; they 

were not once- or twice-removed employees of other companies. Any speaker of 

English would agree that creating ductwork in an off-site shop for the Granger 

fire station project would be considered working “on” the Granger fire station 

project. The only relevant question in this case is whether Ohio’s prevailingwage statutes apply to the Gene’s workers involved in preparing ductwork for 

installation in the Granger fire station. The answer is assuredly “yes.” 

__________________ 

 Cosme, D’Angelo & Szollosi Co., L.P.A., and Joseph M. D’Angelo, for 

appellee. 

 Ross, Brittain & Schonberg Co., L.P.A., Alan G. Ross, and Nick A. 

Nykulak, for appellant. 

 Bricker & Eckler, L.L.P., and Luther L. Liggett Jr., urging affirmance for 

amici curiae Sheet Metal and Air Conditioning Contractors’ National Association 

of Cleveland and Sheet Metal & Roofing Contractors Association of the Miami 

Valley. 

 Cosme, D’Angelo & Szollosi Co., L.P.A., and Joseph M. D’Angelo, 

urging affirmance for amicus curiae Sheet Metal Contractors Association of 

Northwest Ohio, Inc. 
January Term, 2009 

17 

 Hunter, Carnahan, Shoub & Byard and Michale J. Hunter, urging 

affirmance for amicus curiae Ohio State Building and Construction Trades 

Council, AFL-CIO. 

 Sherman, Dunn, Cohen, Leifer & Yellig, P.C., and Terry R. Yellig, urging 

affirmance for amicus curiae Building and Construction Trades Department, 

AFL-CIO. 

 Schottenstein, Zox & Dunn Co., L.P.A., and Roger L. Sabo, urging 

reversal for amici curiae Ohio Contractors Association and Associated General 

Contractors of Ohio. 

 Baker & Hostetler, L.L.P., Elliot S. Azoff, and Jeffrey R. Vlasek, urging 

reversal for amici curiae Construction Employers Association, Associated 

General Contractors of Ohio, Cleveland Division, Associated General Contractors 

of Ohio, Akron Division, Carpenter Contractors Association, Concrete 

Contractors Association, Deep Foundation Contractors Association, Glazing 

Contractors Association of Northeast Ohio, Greater Cleveland Roofing 

Contractors Association, Interior Systems Contractors Association, Inc., Mason 

Contractors Association, Millwright Employers Association, North Central Ohio 

Council of Employers of Bricklayers and Allied Craftworkers, Residential 

Carpenter Contractors Association, Sheet Metal and Air Conditioning 

Contractors’ National Association of North Central Ohio, Inc., Steel & Iron 

Contractors Association, and Tile-Marble-Terrazzo Contractors. 

 McNamara & McNamara, L.L.P., Keith McNamara, and Jonathan M. 

Bryan, urging reversal for amicus curiae Ohio Ready Mixed Concrete 

Association. 

 Anthonio C. Fiore, urging reversal for amici curiae Ohio Chamber of 

Commerce, Dayton Area Chamber of Commerce, Council of Smaller Enterprises, 

Greater Akron Chamber of Commerce, Youngstown/Warren Regional Chamber, 

Toledo Regional Chamber of Commerce, and Cincinnati USA Regional Chamber. 
SUPREME COURT OF OHIO

18 

 Ross, Brittain & Schonberg Co., L.P.A., Alan G. Ross, and Nick A. 

Nykulak, urging reversal for amicus curiae Associated Builders & Contractors of 

Ohio, Inc. 

______________________