[Cite as Internatl. Bhd. of Elec. Workers v. Cty. Elec., L.L.C., 2009-Ohio-2433.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               VAN WERT COUNTY



INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,                                                CASE NO. 15-08-13
LOCAL UNION NO. 8,

   PLAINTIFF-APPELLANT,

  v.

COUNTY ELECTRIC, LLC,                                                 OPINION

   DEFENDANT-APPELLEE.




                Appeal from Van Wert County Common Pleas Court
                          Trial Court No. CV 08-05-267

                        Judgment Reversed and Cause Remanded

                               Date of Decision: May 26, 2009




APPEARANCES:

        Joseph M. D’Angelo for Appellant

        Jill A. May for Appellee
Case No. 15-08-13




SHAW, J.

      {¶1} Plaintiff-Appellant, International Brotherhood of Electrical Workers,

Local Union 8 (“IBEW”), appeals from the December 9, 2008 Entry and Order of

the Court of Common Pleas of Van Wert County, Ohio granting the Civ. R. 60(B)

motion for relief of Defendant-Appellee County Electric LLC (“County Electric”)

and dismissing the action.

      {¶2} On March 6, 2008, IBEW sent three certified letters to the

Department of Commerce, Labor and Worker Safety Division, Wage and Hour

Bureau (“the Bureau”).       These letters were each captioned “Interested Party

Prevailing Wage Administrative Complaint.” The letter at issue in this litigation

was identified as a prevailing wage complaint filed by an interested party, IBEW,

in regard to the Van Wert Upground Reservoir No.3 Project (“Van Wert Reservoir

Project”). In this letter IBEW requested an investigation of all non-union

contractors and subcontractors involved in the project in accordance with R.C.

4115.13. The other two letters filed on March 6, 2008 contained similar language

concerning projects in Allen County. Apparently, no correspondence was received

by IBEW from the Bureau.

      {¶3} On May 16, 2008, IBEW filed a complaint in the Van Wert

Common Pleas Court pursuant to R.C. 4115.16(B) which permits an interested

party to file a complaint in common pleas court if the Bureau has not rendered an


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administrative decision within 60 days of receiving an administrative complaint.

IBEW alleged that County Electric had not paid the prevailing wage to its

employees after winning the bid for the Van Wert Reservoir Project, a public

improvement financed by a public authority. The complaint also alleged that

County Electric's payroll records did not include required information and that no

notice was given to employees pursuant to R.C. 4115.05.

      {¶4} On July 11, 2008, County Electric filed a motion to dismiss pursuant

to Civ.R. 12(B)(1). Like IBEW, County Electric had not received any

correspondence from the Bureau concerning the letters sent by IBEW, and

therefore claimed that IBEW had not exhausted its administrative remedies.

County Electric argued that it had made a public records request with the Bureau

on May 19, 2008 to determine if IBEW had filed a complaint against it. An agent

of the Bureau indicated that no complaint had been filed against County Electric

concerning the Van Wert Reservoir Project. County Electric attached to its

memorandum the affidavit of Michele Hanly, the Assistant Director of the Bureau,

who had completed the records search at County Electric’s request. Hanley was

deposed on August 18, 2008.

      {¶5} On September 30, 2008, IBEW filed a memorandum opposing

County Electric’s motion to dismiss. IBEW cited R.C. 4115.10(B), which requires

employees to file a complaint on the Bureau’s pre-printed form, and R.C.

4115.16(A), which applies to “interested party” litigation and does not require a


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pre-printed form.      On October 14, 2008 County Electric filed a reply

memorandum in support of its motion to dismiss.

       {¶6} On October 24, 2008, the trial court overruled County Electric’s

motion to dismiss, finding that R.C. 4115.16(A) did not require IBEW to use a

pre-printed form in order to file a complaint.

       {¶7} On November 12, 2008 County Electric filed a Civ. R. 60(B) motion

for relief. In its motion County Electric argued that IBEW had not exhausted its

administrative remedies, a necessary pre-requisite for a common pleas court to

gain subject matter jurisdiction over cases brought pursuant to R.C. 4115.16.

County Electric also challenged the trial court’s finding that R.C. 4115.16(A) does

not require an interested party to file a complaint on the Bureau's pre-printed form

because R.C. 4115.12 allows the Director of Commerce to adopt reasonable rules

to administer R.C. 4115.16, among other statutory sections. Moreover, County

Electric argued that IBEW would not be prejudiced by dismissal of its complaint

from the common pleas court.

       {¶8} In making its arguments, County Electric relied upon the Allen

County Court of Common Pleas decision filed in International Brotherhood of

Electrical Workers, Local Union No. 8 v. County Electric, Allen County Case No.

CV 2008 0694 (“the Allen County Case”). The Allen County Case arose out of

one of the other two letters sent to the Department of Commerce, Labor and

Worker Safety Division, Wage and Hour Bureau on March 6, 2008 and concerned


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another public improvement project. In the Allen County Case, the trial court

originally denied County Electric’s motion to dismiss, but dismissed the case after

County Electric filed a Civ. R. 60(B) motion for relief from judgment finding that

IBEW was required to file their claim on a pre-printed form. On November 26,

2008 IBEW filed a brief in opposition to County Electric’s Civ. R. 60(B) motion.

      {¶9} On December 9, 2008 the trial court filed a judgment and order

setting aside the order overruling County Electric’s motion to dismiss and

dismissing IBEW’s complaint. The trial court relied on the following reasoning in

dismissing the IBEW’s complaint:

      The court finds that the letter/complaint sent to Director is in
      compliance with the bare bones of the statute as found in Ohio
      Revised Code section 4115.16(A). However, because the Ohio
      Prevailing Wage statute in another section designates specific
      authority for the Director to adopt reasonable procedures for
      administering the prevailing wage statute, it is within the
      Director’s purview to make all complaints comply with other
      mandates.

      ***

      Because the statute requires an administrative procedure as a
      prerequisite to any lawsuit by an interested party for alleged
      prevailing wage violations, this Court thinks it prudent that
      Plaintiff be required to exhaust administrate remedies before
      proceeding with a state court action. This Court agrees with the
      reasoning in Judge Warren’s decision that it is making its
      decision based on the fact that this Plaintiff was well aware of
      the requirement of the Director that a Complaint must be on a
      pre-printed form. If another, less informed Plaintiff would have
      provided the necessary elements of a Complaint in a letter from
      his attorney who had never filed a prevailing wage claim, nor



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      was familiar with or ever knew that there was a pre-printed
      form requirement, this case my have been decided differently.

      Because dismissal of this action will still allow Plaintiff the right
      to file a proper complaint with the Department of Commerce
      without suffering prejudice, this Court deems it appropriate and
      in accordance with Ohio Revised Code 4115.10(E) and Civil
      Rule 60(B) to set aside the Order Overruling Defendant’s
      Motion to Dismiss.

      {¶10} The IBEW now appeals, asserting four assignments of error.

                    ASSIGNMENT OF ERROR I
      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      WHEN IT GRANTED DEFENDANT-APPELLEE’S CIV R.
      12(B)(1) MOTION TO DISMISS FOR LACK OF SUBJECT
      MATTER JURISDICTION.

                  ASSIGNMENT OF ERROR II
      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      WHEN IT CONSTRUED THE LEGISLATIVE GRANT OF
      RULE-MAKING AUTHORITY CONFERRED BY R. C.
      4115.12 AS VALIDATING AGENCY ACTIONS OTHER
      THAN ACTUAL RULE-MAKING.

                 ASSIGNMENT OF ERROR III
      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      BY PERMITTING AN ADMINISTRATIVE AGENCY TO
      ADD TO THE SUBSTANTIVE REQUIREMENTS OF THE
      STATUTE.

                  ASSIGNMENT OF ERROR IV
      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      BY BASING ITS JURISDICTION TO HEAR THIS CASE ON
      THE BALANCE OF HARM TO THE PARTIES.

      {¶11} In its first assignment of error, IBEW argues that the trial court erred

by dismissing its complaint under Civ. R. 12(B)(1) for lack of subject matter

jurisdiction. IBEW argues that the appropriate standard of review from a


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dismissal pursuant to 12(B)(1) is de novo. However, IBEW appealed the trial

court’s judgment granting County Electric’s motion for relief from judgment

under Civ.R. 60(B). The Supreme Court of Ohio has determined that “[a] motion

for relief from judgment under Civ.R. 60(B) is addressed to the sound discretion

of the trial court, and that court's ruling will not be disturbed on appeal absent a

showing of abuse of discretion.” Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77,

514 N.E.2d 1122. An abuse of discretion constitutes more than an error of law or

judgment and implies that the trial court acted unreasonably, arbitrarily, or

unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR

481, 450 N.E.2d 1140. When applying the abuse-of-discretion standard, a

reviewing court may not simply substitute its judgment for that of the trial court.

Id.

      {¶12} Civ. R. 60(B) specifically sets forth the grounds for relief from

judgment and provides as follows:

      On motion and upon such terms as are just, the court may
      relieve a party or his legal representative from a final judgment,
      order or proceeding for the following reasons: (1) mistake,
      inadvertence, surprise or excusable neglect; (2) newly
      discovered evidence which by due diligence could not have been
      discovered in time to move for a new trial under Rule 59(B); (3)
      fraud (whether heretofore denominated intrinsic or extrinsic),
      misrepresentation or other misconduct of an adverse party; (4)
      the judgment has been satisfied, released, or discharged, or a
      prior judgment upon which it is based has been reversed or
      otherwise vacated, or it is no longer equitable that the judgment
      should have prospective application; or (5) any other reason
      justifying relief from the judgment. The motion shall be made


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       within a reasonable time, and for reasons (1), (2) and (3) not
       more than one year after the judgment, order or proceeding was
       entered or taken. A motion under this subdivision (B) does not
       affect the finality of a judgment or suspend its operation.

In order to prevail on a motion brought pursuant to Civ.R. 60(B), “the movant

must demonstrate that: (1) the party has a meritorious defense or claim to present

if relief is granted; (2) the party is entitled to relief under one of the grounds stated

in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable

time, and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more

than one year after the judgment, order or proceeding was entered or taken.” GTE

Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351

N.E.2d 113 at paragraph two of the syllabus. All three elements must be

established, and the test is not fulfilled if any one of these requirements is not met.

ABN AMRO Mtge. Group, Inc. v. Jackson, 159 Ohio App.3d 551, 556, 824 N.E.2d

600, 2005-Ohio-297.

       {¶13} This case raises an issue that was recently decided by this Court for

the first time in International Brotherhood of Electrical Workers, Local Union No.

8 v. County Electric, LLC., 3rd Dist. No. 1-08-71, 2009-Ohio-1300 (“IBEW”).

Specifically, in IBEW, this Court was asked to determine “whether the letter sent

to the Bureau by IBEW's counsel constituted a ‘complaint.’” IBEW, 2009-Ohio-

1300, at ¶9. Based on the following reasoning, this Court found that the IBEW’s




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letter to the Bureau was a complaint. We rearticulate and affirm that reasoning

here.

        {¶14} Revised Code Section 4115.16(A) states in pertinent part: “An

interested party may file a complaint with the director of commerce alleging a

violation of sections 4115.03 to 4115.16 of the Revised Code. The director, upon

receipt of a complaint, shall investigate pursuant to section 4115.13 of the Revised

Code.” O.A.C. 4101:9-4-23 requires that the complaint be in writing.

        {¶15} Revised Code Section 4115.10 requires “employees” to file

complaints with the Bureau on a form provided by the agency. County Electric

contends that the Bureau requires every complainant to use the same form

pursuant to the rule-making authority granted to the Bureau. “In order to facilitate

the administration of sections 4115.03 to 4115.16 of the Revised Code, and to

achieve the purposes of those sections, the director of commerce may adopt

reasonable rules, not inconsistent with those sections, for contractors and

subcontractors engaged in the construction, prosecution, completion, or repair of a

public improvement financed in whole or in part by any public authority.”

(Emphasis added). R.C. 4115.12.

        {¶16} The parties do not dispute that IBEW is an “interested party,” which

term is defined as:

        (1)  Any person who submits a bid for the purpose of securing
        the award of a contract for construction of the public
        improvement;


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      (2)   Any person acting as a subcontractor of a person
      mentioned in division (F)(1) of this section;

      (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;

      (4)   Any association having as members any of the persons
      mentioned in division (F)(1) or (2) of this section.

R.C. 4115.03(F).

      {¶17} Although R.C. 4115.12 encompasses R.C. 4115.16, the former

statute grants the Bureau authority to adopt reasonable rules for the filing of

complaints by contractors or subcontractors. The clear and unambiguous language

of the statute does not grant such authority for the filing of complaints by labor

organizations or associations defined in R.C. 4115.03(F)(3) or (4). See Cheap

Escape Co., Inc. v. Haddox L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900

N.E.2d 601, at ¶ 9, citing State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861

N.E.2d 512, at ¶ 9. Since IBEW would be defined as either an organization or an

association under R.C. 4115.03(F)(3) or (4), it was not required to submit its

complaint on the pre-printed form promulgated by the Bureau.

      {¶18} The letter sent by IBEW to the Bureau stated in pertinent part:


      RE: Interested       Party    Prevailing   Wage     Administrative
      Complaint


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       Project: Van Wert Upground Reservoir No.3

       Public Authority: Van Wert County Commissioners

       County: Van Wert

       ***

      This is a formal written complaint in accordance with R.C.
      4115.16(A) and O.A.C. 4101:9-4-23.

(Hanly, Michele, Dep., Aug. 27, 2008, at Ex. 2).

       {¶19} IBEW’s letter was received on March 6, 2008. (Id. at Ex. 1). Hanley

testified during her deposition that her supervisor, Bob Kennedy, as the Director of

the Bureau had received the three letters, but she was not aware of the letters’

existence until County Electric's counsel asked her to sign the affidavit it attached

to its motion to dismiss. Apparently, the Bureau received the letters, which IBEW

construed as complaints, and simply did nothing. Such failure to act for more than

60 days entitled IBEW to file its complaint in common pleas court under R.C.

4115.16(B).

       {¶20} Since County Electric's defense is contrary to law and therefore not

meritorious, the trial court erred when it granted the motion for relief from

judgment and dismissed IBEW’s complaint. Accordingly, IBEW’s first, second,

and third assignments of error are sustained. The fourth assignment of error is

now rendered moot.




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       {¶21} Based on the foregoing, the December 9, 2008 Entry and Order of

the Court of Common Pleas of Van Wert County, Ohio granting County Electric’s

Civ. R. 60(B) motion for relief and dismissing IBEW’s complaint is reversed, and

this matter is remanded to the trial court for further proceedings consistent with

this opinion.

                                                             Judgment Reversed
                                                           and Cause Remanded


WILLAMOWSKI, J., concurs.

/jnc



ROGERS, J., concurs separately.

       {¶22} I fully concur in the result reached by the majority.        I write

separately only to comment on a procedural issue.        The trial court initially

overruled Appellee’s motion to dismiss. This was merely a ruling on a motion

and, unquestionably, was not a final appealable order. Appellee then filed what it

designated as a motion for relief from judgment pursuant to Civ.R. 60(B). This

was an improper designation, as one cannot have relief from a judgment that does

not exist. Furthermore, had it been a final appealable order, Civ.R. 60(B) cannot

be used as a substitute for appeal. See Key v. Mitchell, 81 Ohio St.3d 89, 90-91,

1998-Ohio-643.




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         {¶23} However, the trial court did have the prerogative of reconsidering its

prior ruling, precisely because it was not a final appealable order. A party’s

caption of a motion is not necessarily determinative of the nature of the motion,

and, therefore, I have no objections to the trial court proceeding to allow the

parties to argue the motion, and then ruling on it. The parties were properly

accorded due process when allowed to argue the motion, and there is no reason to

believe the result would have been different had the motion been given the correct

designation.1

         {¶24} Again, I agree with the result reached by the majority, and reversal

of the trial court’s decision is proper.




1
  I note that in a prior case between the same parties but in another county, Internatl. Bhd. of Elec. Workers,
Local Union No. 8 v. Cty. Elec., LLC., 3d Dist. No. 1-08-71, 2009-Ohio-1300, this Court also reversed a
similar ruling by the trial court. In that case, County Electric designated the motion as one for
reconsideration, and the trial court, sua sponte, re-designated the motion as one for relief from judgment
pursuant to Civ. R. 60(B). Having not participated in that decision, and not having seen the record from the
trial court in that case, this author is unable to determine why the trial court felt it necessary to alter the
designation of the motion from “reconsideration.”


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