[Cite as Sheet Metal Workers' Internatl. Assn., Local Union No. 33 v. Fitzenrider, Inc., 2012-Ohio-
4655.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




SHEET METAL WORKERS’
INTERNATIONAL ASSOCIATION
LOCAL UNION NO. 33,

        PLAINTIFF-APPELLANT/                                         CASE NO. 7-11-19
        CROSS-APPELLEE,

        v.

FITZENRIDER, INC.,                                                   OPINION

        DEFENDANT-APPELLEE/
        CROSS-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 05 CV 109

                                      Judgment Affirmed

                            Date of Decision: October 9, 2012




APPEARANCES:

        Joseph M. D’Angelo for Appellant/Cross-Appellee

        Alan G. Ross and Nick A. Nykulak for Appellee/Cross-Appellant
Case No. 7-11-19


SHAW, P.J.

         {¶1} Plaintiff-appellant-cross-appellee Sheet Metal Workers’ International

Association, Local Union No. 33 (“Local 33”) appeals the October 12, 2011

judgment of the Henry County Common Pleas Court granting summary judgment

in favor of defendant Fitzenrider, Inc. (“Fitzenrider”). Defendant-appellee-cross-

appellant Fitzenrider also appeals the October 12, 2011 judgment of the Henry

County Common Pleas Court denying Fitzenrider’s request for attorney’s fees.

         {¶2} The facts relevant to this appeal are as follows. Fitzenrider is a small

mechanical construction contractor located in Defiance County, Ohio that

performs heating, plumbing, ventilation and air conditioning work for residential

and commercial customers.1 Fitzenrider was one of multiple contractors that bid

on a construction contract for a public project known as the Henry County Health

Department Alteration Project (“the project”). The project exceeded the statutory

threshold to require compliance with the prevailing wage law (R.C. 4115.03 et.

seq.).

         {¶3} Ultimately Fitzenrider’s bid was selected and Fitzenrider was awarded

a contract to work on the project. Fitzenrider’s work commenced in March of

2004 and was completed in September of 2004. In total, five employees worked

on the project.


1
 This is how Fitzenrider described itself in its motion for summary judgment, and in its brief to this court.
(Appe. Br. pg. 4).

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       {¶4} On August 23, 2005, Local 33 filed a complaint to audit Fitzenrider’s

compliance with Ohio prevailing wage law pursuant to R.C. 4115.16(B). Local 33

represented members who worked for unsuccessful bidders on the project giving it

standing as an interested party pursuant to the statute.

       {¶5} On October 18, 2005, Fitzenrider filed a Civ.R. 12(E) motion for a

more definite statement arguing that Local 33’s allegations were vague.

       {¶6} On January 3, 2006, Local 33 filed an amended complaint alleging

multiple more specific violations of various provisions of Ohio’s prevailing wage

law. Specifically, Local 33 claimed, inter alia, that Fitzenrider did not properly

prepare certified payroll reports compliant with the disclosure requirements, that

Fitzenrider improperly calculated its fringe benefit credit and thereby paid its

employees less than the applicable prevailing wage, that Fitzenrider paid its

employees according to the wrong trade classification resulting in underpayments,

that Fitzenrider compensated offsite employees at a lower rate than the prevailing

wage for the project, and that Fitzenrider did not maintain adequate records.

       {¶7} On June 11, 2008, Fitzenrider filed a motion for a partial stay of

proceedings as the Ohio Supreme Court accepted review of another prevailing

wage case dealing with some of the issues in this case filed by Local 33.




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       {¶8} On August 11, 2008, the trial court granted the partial stay and

requested that the parties file summary judgment motions on the parties’

remaining claims that were not stayed by the court.

       {¶9} On January 22, 2009, Local 33 filed a motion for partial summary

judgment. In its motion, Local 33 argued that Fitzenrider:           (1) violated R.C.

4115.071(C) by not listing its employees’ social security numbers or the total

hours worked on all public and private jobs per week on its certified payroll

reports, (2) violated R.C. 4115.05 by failing to identify the prevailing wage

coordinator for the project on the individual written notices provided to

employees; (3) violated R.C. 4115.07 because it did not re-post the schedule of

wages at the job site, (4) violated R.C. 4115.07 by failing to maintain adequate

records of its prevailing wage compliance, (5) improperly took a fringe benefit

credit for a bonus, (6) failed to substantiate its other fringe benefits credits such as

pension contributions, vacations and holidays paid to employees, (7) miscalculated

its fringe benefit credits, (8) otherwise underpaid employees, (9) misclassified

employees under incorrect trade classifications, and (10) failed to pay employees

for offsite fabrication work done in Fitzenrider’s shop. In addition, Local 33

requested attorney’s fees and costs expended in the matter pursuant to R.C.

4115.16(D).




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       {¶10} On March 11, 2009, Fitzenrider filed its response to Local 33’s

motion for summary judgment and Fitzenrider filed its own motion for partial

summary judgment asserting that the facts were not in dispute, and that Fitzenrider

was in compliance with prevailing wage law, entitling Fitzenrider to summary

judgment. Fitzenrider also requested attorney’s fees and costs pursuant to R.C.

4115.16(D).

       {¶11} On June 19, 2009, Fitzenrider filed a motion to lift the partial stay,

informing the trial court that the Ohio Supreme Court had rendered a decision on

the contested issue for which the court had granted a partial stay. The Ohio

Supreme Court held in Sheet Metal Workers Union Local No. 33 v. Gene’s

Refrigeration, 122 Ohio St.3d 248, 2009-Ohio-2747, that the offsite fabrication of

materials to be used on a public improvement projects was not subject to the

requirements of Ohio’s prevailing wage law.

       {¶12} On July 30, 2009, the trial court lifted the partial stay and granted

Fitzenrider’s judgment as a matter of law with regard to all of Local 33’s offsite

fabrication claims against Fitzenrider.

       {¶13} On August 25, 2011, the trial court issued an opinion awarding

summary judgment to Fitzenrider on all of Local 33’s remaining claims. In that

opinion the court also denied Fitzenrider’s request for attorney’s fees finding that




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Case No. 7-11-19


Local 33’s case was not unreasonable or without foundation at the time it was

filed.

         {¶14} On October 12, 2011, the trial court entered its final judgment entry

memorializing what the court held in its August 25, 2011 opinion. It is from this

judgment that both Local 33 and Fitzenrider appeal.

         {¶15} Local 33 asserts the following assignments of error for our review

based upon the October 12, 2011 judgment.

                     ASSIGNMENT OF ERROR 1
         THE TRIAL COURT COMMITTED REVERSIBLE ERROR
         WHEN IT ALLOWED A CONTRACTOR THAT ELECTED
         TO ANNUALIZE ITS FRINGE BENEFIT CREDIT
         CALCULATIONS TO DEVIATE FROM THE 2080
         FORMULA MANDATED BY OHIO ADM. CODE 4101:9-4-
         06(E).

                     ASSIGNMENT OF ERROR 2
         THE TRIAL COURT COMMITTED REVERSIBLE ERROR
         WHEN IT HELD THAT FITZENRIDER’S UNDERPAYMENT
         WAS NOT A VIOLATION OF R.C. 4115.10(A).

                      ASSIGNMENT OF ERROR 3
         THE TRIAL COURT COMMITTED REVERSIBLE ERROR
         WHEN IT HELD THAT FITZENRIDER’S INCOMPLETE
         CERTIFIED PAYROLL REPORTS DID NOT VIOLATE R.C.
         4115.071(C).

                     ASSIGNMENT OF ERROR 4
         THE TRIAL COURT COMMITTED REVERSIBLE ERROR
         WHEN IT HELD THAT FITZENRIDER’S FAILURE TO
         POST THE REQUISITE PREVAILING WAGE RATE
         NOTIFICATION AT THE JOB SITE DID NOT VIOLATE
         OHIO ADM. CODE 4101:9-4-13(A)(3).


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Case No. 7-11-19


       {¶16} Fitzenrider asserts the following assignment of error from the

October 12, 2011 judgment.

             FITZENRIDER’S ASSIGNMENT OF ERROR
       THE TRIAL COUT COMMITTED REVERSIBLE ERROR
       AND ABUSED ITS DISCRETION BY DENYING
       FITZENRIDER’S REQUEST FOR ATTORNEY’S FEES AND
       COSTS PURSUANT TO R.C. 4115.16(D).

       {¶17} In the interest of clarity, we elect to address some of the assignments

of error together, and some of the assignments of error out of the order in which

they were raised.

                                Standard of Review

       {¶18} Initially, we note that an appellate court reviews a grant of summary

judgment de novo, without any deference to the trial court. Sheely v. Sheely, 3d.

Dist. No. 2-10-38, 2012-Ohio-43, ¶ 17, citing Conley-Slowinski v. Superior

Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (6th Dist.1998). A grant of

summary judgment will be affirmed only when the requirements of Civ.R. 56(C)

are met. This requires the moving party to establish: (1) that there are no genuine

issues of material fact, (2) that the moving party is entitled to judgment as a matter

of law, and (3) that reasonable minds can come to but one conclusion and that

conclusion is adverse to the non-moving party, said party being entitled to have

the evidence construed most strongly in his or her favor. Civ.R. 56; Horton v.




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Case No. 7-11-19


Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, at paragraph three of

the syllabus.

       {¶19} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112

(1988) at syllabus. The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107. Once the moving party

demonstrates that it is entitled to summary judgment, the burden shifts to the non-

moving party to produce evidence on any issue which that party bears the burden

of production at trial. See Civ.R. 56(E).

       {¶20} In ruling on a summary judgment motion, a court is not permitted to

weigh evidence or choose among reasonable inferences, rather, the court must

evaluate evidence, taking all permissible inferences and resolving questions of

credibility in favor of the non-moving party. Jacobs v. Racevskis, 105 Ohio

App.3d 1, 7 (2nd Dist.1995). Additionally, Civ.R. 56(C) mandates that summary

judgment shall be rendered if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.


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                      Local 33’s Fourth Assignment of Error

       {¶21} In Local 33’s fourth assignment of error, Local 33 claims that the

trial court erred when the court held that Fitzenrider’s failure to post the requisite

prevailing wage rate notification at the job site did not violate Ohio Administrative

Code provision 4101:9-4-13(A)(3).        Specifically Local 33 argues that every

contractor on the job site was required to post the prevailing wage notification, and

that although the wage rates were posted, Fitzenrider did not itself post the wage

rates and thereby was in violation of the O.A.C.

       {¶22} The language of the governing statute, R.C. 4115.07, reads in

pertinent part,

       [t]here shall be posted in a prominent and accessible place on the
       site of the work a legible statement of the schedule of wage rates
       specified in the contract to the various classifications of laborers,
       workers, and mechanics employed, said statement to remain
       posted during the life of each contract.

       {¶23} The corresponding administrative provision, O.A.C. 4101:9-4-

13(A)(3), reads,

       (A) Every contractor and            subcontractor      on   a   public
       improvement project shall:

       ***

       (3) Post in a prominent and accessible place on the site of the
       work a legible statement of the schedule of wage rates specified
       in the contract for the various occupations of laborers,
       workmen, and mechanics employed. The notice must remain
       posted during the life of the contract and must be supplemented

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Case No. 7-11-19


        in its entirety whenever new wage rate schedules are issued by
        the department. The schedule must also state the name, address,
        and phone number of the prevailing wage coordinator.

        {¶24} In this case, there is no factual dispute as to what occurred at the job

site.   Tom Hurst, the Project Superintendent for construction manager Rupp

Rosebrock, Inc. posted all of the schedules of wages applicable to the project as

well as providing employees who worked on the project the identity of the

prevailing wage coordinator. (Doc. 45, Ex. A, Jacob Aff.); (Doc. 45, Ex. B.,

Layman Aff.).      John Jacob, president of Fitzenrider, and his employee, Donald

Layman, both filed affidavits attesting to this fact.       (Id.); (Id.)   Thus while

Fitzenrider did not itself post the wage schedules, the wage schedules were posted

at the job site.

        {¶25} Although Local 33 argues that a plain reading of O.A.C. 4101:9-4-

13(A)(3) would require every contractor to individually post the wage rates, when

reading the statute and the regulation, nothing specifically says that an employee

of the contractor itself must post the rates. The statute and the regulation do not

prevent Fitzenrider from directing someone to post the rates nor does it require

Fitzenrider to duplicate the rates that were already posted by the construction

manager. The statute and the regulation both require that the wage tables be

posted, and they were posted here as attested to by John Jacob and his employee

Donald Layman.


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       {¶26} Based upon the foregoing we find that there is no genuine issue of

material fact and that Fitzenrider is entitled to judgment as a matter of law.

Therefore summary judgment was properly awarded by the trial court to

Fitzenrider on this issue. Accordingly Local 33’s fourth assignment of error is

overruled.

                       Local 33’s Third Assignment of Error

       {¶27} In Local 33’s third assignment of error, Local 33 alleges that the trial

court erred when it concluded that Fitzenrider’s certified payroll reports did not

violate R.C. 4115.071(C).     Specifically Local 33 argues that Fitzenrider was

required under the Ohio Revised Code to put each employee’s social security

number on the payroll reports and that Fitzenrider was required to list the total

hours worked on all projects for each week on the payroll reports.

       {¶28} R.C. 4115.071(C) sets forth the items that must be enumerated on an

employer’s certified payroll reports. In pertinent part, R.C. 4115.07(C) reads,


       * * * The contractor or subcontractor shall also deliver to the
       prevailing wage coordinator a certified copy of the contractor's
       or subcontractor's payroll, within two weeks after the initial pay
       date, and supplemental reports for each month thereafter which
       shall exhibit for each employee paid any wages, the employee's
       name, current address, social security number, number of hours
       worked during each day of the pay periods covered and the total
       for each week, the employee's hourly rate of pay, the employee's
       job classification, fringe payments, and deductions from the
       employee's wages. If the life of the contract is expected to be no
       more than four months from the beginning of performance by

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Case No. 7-11-19


        the contractor or subcontractor, such supplemental reports shall
        be filed each week after the initial report. The certification of
        each payroll shall be executed by the contractor, subcontractor,
        or duly appointed agent thereof and shall recite that the payroll
        is correct and complete and that the wage rates shown are not
        less than those required by the contract.

        {¶29} It is undisputed in this case that Fitzenrider did not include each

employee’s social security number or the hours worked in the week on other

projects on the certified payroll reports.    Furthermore, it is undisputed that

Fitzenrider maintained certified payroll reports which were provided to the Ohio

Department of Commerce with a signed “statement of compliance.” (Doc. 45, Ex.

A-2).

        {¶30} In Vaughn Industries, Inc. v. Dimech Services, 167 Ohio App.3d 634

(6th Dist.2006) (hereinafter “Vaughn 1”) and IBEW Local 8 v. Vaughn Industries,

Inc., 6th Dist. No. WD-07-026, 2008-Ohio-2992 (hereinafter “Vaughn 2”), the

Sixth District Court of appeals addressed the issue of whether failing to include

one of the enumerated items in R.C. 4115.071(C) in a payroll report was a

violation of the statute’s requirements. Ultimately, in the Vaughn cases, the Sixth

District found that the contractor’s inclusion of a signed “statement of

compliance” attesting that the contractor “had paid or would be paying the fringe

benefits required under the contract” with the payroll reports was sufficient to

satisfy the revised code when a contractor neglected to include one of the

enumerated items of R.C. 4115.071(C). Vaughn 1, at ¶ 28.

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       {¶31} In this case, Fitzenrider submitted “statements of compliance” with

its payroll reports containing the following language:

       I, _______________ do certify under penalty of perjury:

       1) That all of the information in this report is true and correct.
       2) That I pay or supervise the payment of the persons
       employed by Fitzenrider, Inc, * * * that * * * all persons
       employed on said project have been paid the full weekly wages
       earned, that no rebates have been or will be made either directly
       or indirectly from the full wages earned by any person other
       than permissible deductions, as described below:

       FICA (Social Security), Medicare, Federal Income Taxes, State
       Income Taxes, State Disability (SDI), Court Ordered Wage
       Attachments, 401K Plans

       3) That any payrolls otherwise under this contract required to
       be submitted for the above period are correct and complete; that
       the wage rate for laborers or mechanics contained therein are
       not less than the applicable wage rates contained in any wage
       determination incorporated into the contract; that the
       classifications set forth therein for each laborer or mechanic
       conform with the work he performed.
       4) That any apprentices employed in the above period are
       duly registered in a bona fide apprenticeship program registered
       with a state apprenticeship agency.
       5) That:
       a) WHERE FRINGE BENEFITS ARE PAID TO
       APPROVED PLANS, FUNDS, OR PROGRAMS

       In addition to the basic hourly wage rates paid to each laborer
       or mechanic listed in the above referenced payroll, payments of
       fringe benefits as listed in the contract have been or will be made
       to the appropriate programs for the benefit of such employees.

       b) WHERE FRINGE BENEFITS ARE PAID IN CASH
       Each laborer or mechanic listed in the above referenced payroll
       has been paid as indicated on the payroll, an amount not less

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Case No. 7-11-19


       than the sum of the applicable basic hourly wage rate plus the
       amount of the required fringe benefits as listed in the contract *
       * *[.]

(Doc. 45, Ex. A-2).

       {¶32} The “statements of compliance” submitted by Fitzenrider along with

the payroll reports contain exactly the same language cited in both Vaughn cases

under “5) a)” above. The statements of compliance were each signed by John

Jacob, Fitzenrider’s president. (Id.)

       {¶33} The trial court, relying on the Vaughn cases, held that Fitzenrider’s

inclusion of a statement of compliance was sufficient to satisfy R.C. 4115.071(C)

even when Fitzenrider failed to specify one of the enumerated items. Although the

item not listed on the payroll reports in Vaughn 1 was fringe benefit payments, we

find the Vaughn analysis persuasive and applicable to the omitted items here.

       {¶34} Moreover, we are mindful of the primary purpose of Ohio’s

prevailing wage law, which was enacted to “support the integrity of the collective

bargaining process by preventing the undercutting of employee wages in the

private sector.” Harris v. Van Hoose 49 Ohio St.3d 24, 26 (1990) quoting State ex

rel. Evans v. Moore, 69 Ohio St.2d 88, 91 (1982). Here, the employees’ social

security numbers and the total hours worked weekly on the projects were

otherwise submitted to the Ohio Department of Commerce or to the prevailing




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Case No. 7-11-19


wage coordinator and were thus available were they an absolute necessity. (Doc.

45, Exs. A-5, A-8).

       {¶35} For all of the foregoing reasons we find that summary judgment was

properly granted to Fitzenrider on this issue and Local 33’s third assignment of

error is overruled.

                 Local 33’s First and Second Assignments of Error

       {¶36} In Local 33’s first and second assignments of error, Local 33 argues

that the trial court erred by allowing Fitzenrider to “deviate” from the formula for

calculating fringe benefit credits in Ohio Administrative Code 4101:9-4-06(E) and

that such a deviation resulted in an underpayment that the trial court should have

found violated R.C. 4115.10(A). Specifically, Local 33 argues that according to

the Ohio Administrative Code, Fitzenrider was required to use the denominator of

2080 as the default ‘hours worked’ in the absence of the actual number of hours

worked.

       {¶37} Ohio Administrative Code 4101:9-4-06, which relates to calculating

fringe benefit credits, reads as follows:

       (A) It is the duty of each employer to calculate the amount of
       credit it seeks for fringe benefits in accordance with Chapter
       4101:9-4 of the Administrative Code.

       (B) Each employer shall submit a certified payroll report to the
       prevailing wage coordinator. This report shall include at a
       minimum the basic hourly rate, calculated hourly rate of fringe
       benefits credited, all permissible payroll deductions.

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Case No. 7-11-19



      (C) The employer shall submit detailed calculations showing
      the calculations used in determining any of the information
      contained on the certified payroll report upon request by
      commerce.

      (D) Where      the    employer     provides    commerce    with
      substantiating documentation concerning the amount
      contributed to the fringe benefit and the total number of hours
      worked by the employee on all projects deemed relevant by the
      director for the purposes of this calculation, hourly fringe
      benefit credit shall be calculated by dividing the total
      contribution of the employer applicable to the employee by the
      total number of hours worked by the employee.

      (E) Where      the   employer     provides     commerce     with
      substantiating documentation concerning only the amount
      contributed to the fringe benefit, hourly fringe benefit credit
      shall be calculated by dividing the total yearly contribution by
      2080.

      (F) Commerce may reject any credits sought by an employer
      which are not substantiated by adequate records.

      (G) Falsification of any information provided to commerce
      pursuant to this rule is a violation of section 2921.13 of the
      Revised Code.

      {¶38} Revised code 4115.03(E) defines prevailing wages as the sum of the

following:

      (1) The basic hourly rate of pay;

      (2) The rate of contribution irrevocably made by a contractor
      or subcontractor to a trustee or to a third person pursuant to a
      fund, plan, or program;

      (3) The rate of costs to the contractor or subcontractor which
      may be reasonably anticipated in providing the following fringe

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Case No. 7-11-19


      benefits to laborers and mechanics pursuant to an enforceable
      commitment to carry out a financially responsible plan or
      program which was communicated in writing to the laborers
      and mechanics affected:

      (a) Medical or hospital care or insurance to provide such;

      (b) Pensions on retirement or death or insurance to provide
      such;

      (c) Compensation for injuries or illnesses resulting from
      occupational activities if it is in addition to that coverage
      required by Chapters 4121. and 4123. of the Revised Code;

      (d) Supplemental unemployment benefits that are in addition
      to those required by Chapter 4141. of the Revised Code;

      (e) Life insurance;

      (f)   Disability and sickness insurance;

      (g) Accident insurance;

      (h) Vacation and holiday pay;

      (i) Defraying of costs for apprenticeship or other similar
      training programs which are beneficial only to the laborers and
      mechanics affected;

      (j)   Other bona fide fringe benefits.

      None of the benefits enumerated in division (E)(3) of this section
      may be considered in the determination of prevailing wages if
      federal, state, or local law requires contractors or
      subcontractors to provide any of such benefits.

      {¶39} In this case, it is undisputed that in calculating fringe benefit credit,

Fitzenrider used the divisors of 1908 and 1948. Fitzenrider came to these figures


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by beginning with the idea that employees would work 52 weeks per year at 40

hours per week for a total of 2080 hours. Then, Fitzenrider subtracted from the

2080 hours the number of hours that employees would be on paid holiday or on

paid vacation. Fitzenrider’s employees received 52 hours of paid holidays each

year, and either 80 or 120 hours of paid vacation depending upon the employees’

hire date and years of service. Adding the hours the employees would not be

working while on holiday to hours the employees would be on paid vacation there

were either 132 hours or 172 hours per year that a given employee would not be

working.    Fitzenrider took these numbers and subtracted them from the base

number of hours, 2080, to get the divisors of 1948 and 1908—Fitzenrider’s

estimated amount of hours worked for each employee for the given year.

Fitzenrider then used these two numbers as the divisors for calculating its fringe

benefits credit.

       {¶40} Local 33 argues that pursuant to the Ohio Administrative Code,

Fitzenrider either had to use the number of hours actually worked by the

employees (O.A.C. 4101:9-4-06(D)) or what Local 33 claims is the default divisor

of 2080 hours (O.A.C. 4101:9-4-06(E)). Local 33 claims that Ohio Administrative

Code provision 4101:9-4-06 cited above does not allow for Fitzenrider’s

estimation of total hours worked for the employees.




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       {¶41} An argument similar to Local 33’s claim was made in Vaughn 2,

supra. In Vaughn 2, the Sixth District Court of Appeals conducted the following

analysis:

       * * * IBEW claims that this court must adopt one of its methods
       of calculation per Ohio Adm.Code 4101:9-4-06(D) or Ohio
       Adm.Code 4101:9-4-06(E). We disagree.

       To repeat, in IBEW I, this court determined that to be in
       “compliance with Ohio’s Prevailing Wage Law, and unless
       otherwise modified by the administrator, fringe benefits credit
       must be calculated on the hour-for hour-basis by dividing the
       total contribution to fringe benefits on public projects by the
       total number of hours worked by the employee on public
       projects.” A thorough review of the trial testimony given by
       Vaughn’s President Matthew Plotts, and Chief Financial
       Officer, Jennifer Smalley, as well as the voluminous records
       related to the calculation of the fringe benefits credit that were
       entered into evidence at trial, reveals some competent credible
       evidence that this credit was calculated properly.

Vaughn 2, 2008-Ohio-2992 ¶¶ 44-45. The Sixth District’s analysis illustrates that

contrary to Local 33’s position, there are not only two permissible methods of

calculating fringe benefit credits pursuant to the Ohio Administrative Code.

       {¶42} Moreover, in R.C. 4115.03(E)(3), supra, the legislature inserted

language that the rate of costs “may be reasonably anticipated.” Reading the

corresponding O.A.C. provision, 4101:9-4-06, with the idea that costs may be

“reasonably anticipated” and factoring in the Sixth District’s interpretation in

Vaughn 2 that there are more than the two methods for calculating fringe benefit



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credits, we find that Fitzenrider was not required to use only the two methods cited

by Local 33 if it could “reasonably anticipate” its costs.

       {¶43} The record demonstrates just such a reasonable anticipation. Here

we have a detailed accounting for how Fitzenrider calculated its fringe benefit

credits and came up with the divisors of 1908 and 1948. These calculations were

based on actual hours the employees would work in the year after their vacation

and holiday hours were subtracted from the base amount of 2080. Accordingly,

we find no error in Fitzenrider’s calculations and therefore Fitzenrider was entitled

to summary judgment. Thus Local 33’s first assignment of error is overruled.

       {¶44} As we find no error in Fitzenrider’s calculations, we do not find that

there was any underpayment in this case as alleged by Local 33 in its second

assignment of error. Thus Local 33’s second assignment of error is overruled and

we find that summary judgment was properly granted to Fitzenrider.

       {¶45} Accordingly, Local 33’s first and second assignments of error are

overruled.

                      Fitzenrider’s First Assignment of Error

       {¶46} In Fitzenrider’s sole assignment of error Fitzenrider argues that the

trial court erred in failing to award Fitzenrider attorney’s fees.      Specifically

Fitzenrider argues that Local 33’s complaint was unreasonable and without

foundation and therefore Fitzenrider was entitled to attorney’s fees.


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      {¶47} When a trial court is empowered to award attorneys’ fees by statute,

the decision to award such fees and the amount of such fees is within the sound

discretion of the trial court. Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc, 23

Ohio App.3d 85, 91 (12th Dist.1985). See also Bittner v. Tri County Toyota, Inc,

58 Ohio St.3d 143, 145-146 (1991). That decision will not be overturned absent

an abuse of discretion. An abuse of discretion connotes more than an error of law

or judgment.   An abuse of discretion implies that the court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

      {¶48} The statute governing attorney’s fees in this case is R.C. 4115.16(D),

which reads:

      (D) Where, pursuant to this section, a court finds a violation of
      sections 4115.03 to 4115.16 of the Revised Code, the court shall
      award attorney fees and court costs to the prevailing party. In
      the event the court finds that no violation has occurred, the
      court may award court costs and fees to the prevailing party,
      other than to the director or the public authority, where the
      court finds the action brought was unreasonable or without
      foundation, even though not brought in subjective bad faith.

      {¶49} In analyzing this issue, the trial court denied Fitzenrider’s request for

attorney’s fees, finding that “none of the cases on which [the court] relied in

deciding that there were no violations [by Fitzenrider] were in fact decided when

this litigation was commenced. Hence, the Court would fairly conclude that it



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could not find the case was brought without foundation, or that plaintiff acted in

bad faith or was unreasonable.” (Doc. 57).

       {¶50} Our own review of the record and the corresponding law shows that

many of the issues raised were novel to this district. Furthermore, as stated by the

trial court, many of the cases cited herein were not decided at the inception of this

case in August of 2005. Based on this, we cannot find the trial court’s decision

denying Fitzenrider’s request for attorney’s fees was arbitrary, unreasonable, or

unconscionable. Accordingly Fitzenrider’s assignment of error is overruled.

       {¶51} For the foregoing reasons the assignments of error raised by Local 33

and the assignment of error raised by Fitzenrider are overruled and the judgment

of the Henry County Common Pleas Court is affirmed.


                                                                Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.
/jlr




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