I concur with the majority's holding that the sheriff has the discretion to use prisoner labor through a work-detail program to paint the interior walls, floors, and trim of the pods in the Justice Center without the necessity of complying with the Ohio prevailing-wage law, R.C. 1115.03 through 4115.16.
Painting the Justice Center is not "maintenance," but is, rather, "construction" as that term is defined in the prevailing-wage statute. R.C. 4115.03(B)(2). Thus, contrary to the appellees' argument, painting a county jail is a public improvement under the statute. However, this case presents a much narrower issue: whether a prisoner in the county jail performing such work as part of the sheriff's work-detail program is required to be paid the prevailing wage under the statute. While the majority's analysis cogently explores a number of code sections relating to convict labor in the penitentiary (R.C.5145.16), private employment of prisoners (R.C. 5147.28), and credit under an intrajail program (R.C. 2947.151), I believe that such analysis, although valid, is secondary to the analysis provided by the Ohio Supreme Court in Internatl. Union ofoperating Engineers, Local 18 v. Dan Wannemacher Masonary Co. (1988), 36 Ohio St.3d 74, 521 N.E.2d 809.
In Wannemacher, the court considered the issue of whether a sole proprietor who personally performed physical work as a laborer, worker, or mechanic in the construction of a public improvement was himself subject to the prevailing-wage law. In holding that he was not, the court focused exclusively on whether he was an "employee" as contemplated by the statute. In making this determination, the court relied upon the definition of an "employee" in Black's Law Dictionary (5 Ed. 1979) as "one who works for an employer; a person working for salary or wages."Wannemacher; 36 Ohio St.3d at 77, 521 N.E.2d at 812, citing Black's Law Dictionary (5 Ed. 1979) 471.
Although the court in Wannemacher expressly limited its holding to an employer who is a sole proprietor, the analysis provided by the court is, in my opinion, controlling here. Because, as the majority amply demonstrates, prisoners in a work-detail program do not work for a salary or wages and are not considered the sheriff's employees, they are not subject to the prevailing-wage law. To hold otherwise would depart from the analysis given to us by the Ohio Supreme Court in Wannemacher. As with other judicially created exceptions, disparate application tends to dilute broad policy considerations. This case is rendered even more difficult because two strong public interests compete: the need to protect the integrity of the collective-bargaining process by preventing the undercutting of employee wages in the private construction sector, and the need for jail space and the laudable goal of reducing the expense and danger of an overcrowded system through the early release of prisoners who have earned credit against their sentences by performing institutional work. *Page 197
I write separately also to express my concern for an issue that was not addressed. The Public Employees Collective Bargaining Act, R.C. 4117.08(A), provides that "[a]ll matters pertaining to wages, hours, or terms and other conditions of employment * * * are subject to collective bargaining." Where a school district attempted to privatize its nursing services, the Ohio Supreme Court held that reassigning work previously performed by members of a bargaining unit to persons outside the unit affected a mandatory subject of collective bargaining under R.C. 4117.08 (A). Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988),40 Ohio St.3d 257, 533 N.E.2d 264, paragraph three of the syllabus. Although the requirement to bargain does not require that the parties reach agreement, "[i]t does, however, provide a process whereby employees will be consulted about decisions which have a profound impact on them and, thus, industrial peace will be preserved and promoted." Id. at 263, 533 N.E.2d at 269. Thus, it would appear that even if the Justice Center was being painted for the first time, the act of unilaterally assigning the work to prisoners, who are persons outside a bargaining unit, may have been a mandatory subject of collective bargaining pursuant to R.C. 4117.08(A) and (C).
This issue was not raised in the trial court or here. Furthermore, the record does not indicate whether Justice Center employees are members of a bargaining unit, and, if they are, whether the work here was of a kind arguably covered by the collective-bargaining agreement. Therefore the issue is not presently before us. I raise the issue, however, because of its significant importance and otherwise concur in the majority's well-reasoned analysis.