Off Site Fabrication Work For Prevailing Wage Projects
By Nick A. Nykulak The Ohio 9th District Court of Appeals on Monday, March 10, 2008 issued a decision in Sheet Metal Workers' Local Union No. 33 v. Genes Refrigeration & Air Conditioning which impacts every Ohio contractor and manufacturer regarding work performed for public improvement projects subject to Ohio's Prevailing Wage Law. The Court held in a 2-1 decision that one cryptic sentence contained in R.C. 4115.05 mandates that prevailing wages be paid to workman for materials they fabricate offsite which would be "used in" or "in connection" with the public work. This means that sheet metal fabrication of duct work performed in a sheet metal shop, prefabricated walls, construction of cabinetry, windows, doors, and any other materials purchased for use with the project must be constructed at prevailing wages applicable to a specific trade within locality for the public project.
In rendering its decision, the Court found that a 1934 Ohio Supreme Court Case, Clymer v. Zane was "superceded" in 1935 by an amendment to R.C. 4115.05 adding the cryptic sentence. However, in 78 years, this provision Ohio's Prevailing Wage Law has never been enforced, applied or interpreted to require payment of prevailing wages for off site fabrication work of materials to be used on the public project.
This is controlling law in the 9th District Court of Appeals which covers Lorain, Summit, Medina, and Wayne Counties. Judge Carr delivered the opinion of the Court, Judge Moore concurred, Judge Slaby dissented. The Court's decision is going to be appealed to the Ohio Supreme Court.
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