State ex rel. Natl. Electrical Contractors Assn. v. Ohio Bur. of Emp. Serv.

• Decision Date: 23 September 1998
• Docket Number: No. 97-2499,97-2499
• Parties: , 4 Wage & Hour Cas.2d (BNA) 1687 The STATE ex rel. NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, OHIO CONFERENCE, et al., Appellants, v. OHIO BUREAU OF EMPLOYMENT SERVICES, Appellee.
• Court: Ohio Supreme Court

Page 179

83 Ohio St.3d 179

699 N.E.2d 64, 4 Wage & Hour Cas.2d (BNA) 1687

The STATE ex rel. NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, OHIO CONFERENCE, et al., Appellants, v. OHIO BUREAU OF EMPLOYMENT SERVICES, Appellee.

No. 97-2499.

Supreme Court of Ohio.

Submitted June 24, 1998.

Decided Sept. 23, 1998.

In July 1997, appellants, National Electrical Contractors Association, Ohio Conference ("NECA"), its local chapters, and Royal Electric Construction Corporation ("Royal"), filed a complaint in the Court of Appeals for Franklin County. NECA is a trade association representing electrical contractors throughout Ohio for construction in both public and private works. NECA members competitively bid on public projects in Ohio in compliance with the provisions of R.C. Chapter 4115, relating to the prevailing wage to be paid on public works projects. Royal is a NECA member which bid unsuccessfully on public projects awarded to contractors with lower bids that may have violated the prevailing wage provisions.

In their complaint, appellants claimed that OBES violated R.C. 4115.10(A), by not collecting a penalty for the Penalty Enforcement Fund upon finding a violation of the prevailing wage law; R.C. 4115.10(C), by not bringing any legal action necessary upon finding a violation of the prevailing wage law; R.C. 4115.10(E), by not enforcing the prevailing wage law; R.C. 4115.13, by not making a determination whether contractors violating the prevailing wage law did so intentionally; and R.C. 4115.133, by not filing a list with the Secretary of State of contractors who intentionally violate the prevailing wage law. According to appellants, since 1994, OBES has refused to collect penalties that would have amounted to $189,000, and wages due in an amount exceeding $584,000. Appellants allege that their competitors, who are permitted to avoid payment of the prevailing wage or who receive no penalty even if OBES determines a violation receive a competitive advantage by illegally underbidding appellants, consequently denying them public works contracts.

Appellants requested a writ of mandamus to compel appellee, Ohio Bureau of Employment Services ("OBES"), (1) to investigate and timely act upon all complaints and make determinations and collections of wages due for violations of the prevailing wage law, (2) to make a finding whether each violation of the prevailing wage law was intentional, including each determination since the July 1995 effective date of the statute, (3) to file with the Secretary of State a list containing the names of contractors who intentionally violated the law, and (4) to collect the penalty provided for employees and for the Penalty Enforcement Fund, including for each determination since the July 1995 effective date of the statute. Appellants additionally requested a judgment declaring the rights of the parties.

OBES moved to dismiss appellants' complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. OBES contended that appellants had an adequate remedy in the ordinary course of law by administrative appeal under R.C. 4115.16.

In October 1997, the court of appeals granted OBES's motion and dismissed appellants' complaint. The court of appeals ruled that it lacked jurisdiction over appellants' declaratory judgment claim and that appellants' mandamus claim was barred by an adequate remedy in the ordinary course of law by way of the administrative procedure in R.C. 4115.16.

This cause is now before the court upon an appeal as of right.

PER CURIAM.

Declaratory Judgment

Appellants initially contend that the court of appeals erred by sua sponte dismissing their declaratory judgment claim for lack of subject matter jurisdiction.

Appellants, however, are mistaken. Courts of appeals lack original jurisdiction over claims for declaratory judgment. Wright v. Ghee (1996), 74 Ohio St.3d 465, 466, 659 N.E.2d 1261, 1262; State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph four of the syllabus; Section 3(B)(1), Article IV, Ohio Constitution.

Therefore, the court of appeals correctly dismissed appellants' declaratory judgment claim.

Mandamus

Appellants next assert that the court of appeals erred by granting OBES's Civ.R. 12(B)(6) motion and dismissing their mandamus claim.

In order to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, it must appear beyond doubt that appellants could prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true, and all reasonable inferences are made in their favor. State ex rel. Kaylor v. Bruening (1997), 80 Ohio St.3d 142, 144, 684 N.E.2d 1228, 1231.

Appellants claim that OBES failed to comply with its duties under the following prevailing wage law provisions:

R.C. 4115.10

"(A) * * * 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 the employee and in addition thereto a sum equal to twenty-five per cent of that difference. The person, firm, corporation, or public authority who fails to pay the rate of wages so fixed also shall pay a penalty to the [OBES] administrator of seventy-five per cent of the difference between the fixed rate of wages and the amount paid to the employees on the public improvement. The administrator shall deposit all moneys received from penalties paid to the administrator pursuant to this section into the penalty enforcement fund, which is hereby created. The penalty enforcement funds shall be in the custody of the treasurer of the state but shall not be part of the state treasury. The administrator shall use the fund for the enforcement of sections 4115.03 to 4115.16 of the Revised Code. * * *

" * * *

"(C) * * * The administrator shall bring any legal action necessary to collect any amounts owed to employees and the bureau. * * *

" * * *

"(E) The bureau shall enforce sections 4115.03 to 4115.16 of the Revised Code." (Emphasis added.)

R.C. 4115.13

"(A) Upon his own motion or within five days of the filing of a complaint under section 4115.10 or 4115.16 of the Revised Code, the administrator of the bureau of employment services, or a representative designated by him, shall investigate any alleged violation of sections 4115.03 to 4115.16 of the Revised Code.

" * * *

"(D) If the administrator or his designated representative makes a decision, based upon findings of fact, that a contractor, subcontractor, or officer of a contractor or subcontractor has intentionally violated sections 4115.03 to 4115.16 of the Revised Code, the contractor, subcontractor, or officer of a contractor or subcontractor is prohibited from contracting directly or indirectly with any public authority for the construction of a public improvement or from performing any work on the same as provided in section 4115.133 of the Revised Code. * * * " (Emphasis added.)

R.C. 4115.133

"(A) The administrator of the bureau of employment services shall file with the secretary of state a list of contractors, subcontractors, and officers of contractors and subcontractors who have been prosecuted and convicted for violations of or have been found to have intentionally violated sections 4115.03 to 4115.16 of the Revised Code. * * *

" * * *

"(C) No public authority shall award a contract for a public improvement to any contractor, subcontractor, or officer of a contractor or subcontractor during the time that the contractor's, subcontractor's, or officer's name appears on such list. * * * " (Emphasis added.)

The court of appeals held that any alleged failure by OBES to comply with its duties under the foregoing prevailing wage law provisions was remediable by an administrative complaint and subsequent appeal to a common pleas court under R.C. 4115.16.

R.C. 4115.16 provides:

"(A) An interested party may file a complaint with the administrator of the bureau of employment services alleging a violation of sections 4115.03 to 4115.16 of the Revised Code. The administrator, upon receipt of a complaint, shall investigate pursuant to section 4115.13 of the Revised Code. If the administrator determines that no violation has occurred or that the violation was not intentional, the interested party may appeal the decision to the court of common pleas of the county where the violation is alleged to have occurred.

"(B) If the administrator has not ruled on the merits of the complaint within sixty days after its filing, the interested party may file a complaint in the court of common pleas of the county in which the violation is alleged to have occurred. The complaint may make the contracting public authority a party to the action, but not the administrator. * * * The court in which the complaint is filed pursuant to this division shall hear and decide the case, and upon finding that a violation has...