STATE BUILDING & CONSTRUCTION TRADES COUNCIL v. Dept. of Labor

• Decision Date: 06 September 2000
• Docket Number: Docket No. 206704.
• Citation: STATE BUILDING & CONSTRUCTION TRADES COUNCIL v. Dept. of Labor, 616 N.W.2d 697, 241 Mich. App. 406 (Mich. App. 2000)
• Parties: MICHIGAN STATE BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO, and Resteel Contractors Association, Inc., Plaintiffs-Appellees, v. Lowell Perry and Consumer & Industry Services, f/k/a Michigan DEPARTMENT OF LABOR, Defendants-Appellants.
• Court: Court of Appeal of Michigan

616 N.W.2d 697

241 Mich. App. 406

MICHIGAN STATE BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO, and Resteel Contractors Association, Inc., Plaintiffs-Appellees, v. Lowell Perry and Consumer & Industry Services, f/k/a Michigan DEPARTMENT OF LABOR, Defendants-Appellants.

Docket No. 206704.

Court of Appeals of Michigan.

Submitted February 9, 2000, at Detroit.

Decided June 9, 2000, at 9:00 a.m.

Released for Publication September 6, 2000.

Klimist, McKnight, Sale, McClow & Canzano, P.C. (by John R. Canzano), Southfield, for the plaintiffs.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Richard P. Gartner, Assistant Attorney General, for the defendants.

Before: HOLBROOK, JR., P.J., and MICHAEL J. KELLY and COLLINS, JJ.

PER CURIAM.

In this case involving the prevailing wage act (PWA), M.C.L. § 408.551 et seq.; MSA 17.256(1) et seq., defendants Lowell Perry¹ and the Michigan Department of Consumer and Industry Services (collectively, the department) appeal the circuit court's final order granting plaintiffs declaratory and injunctive relief and the circuit court's order for a writ of mandamus. We affirm.

The PWA requires, among other things, that prevailing wages and fringe benefits be paid on certain state projects. See M.C.L. § 408.552; MSA 17.256(2), M.C.L. § 408.553; MSA 17.256(3); Western Michigan Univ. Bd. of Control v. Michigan, 455 Mich. 531, 533, 565 N.W.2d 828 (1997). Section 4 of the statute, states, in pertinent part, as follows:

The commissioner shall establish prevailing wages and fringe benefits at the same rate that prevails on projects of a similar character in the locality under collective agreements or understandings between bona fide organizations of construction mechanics and their employers. [MCL 408.554; MSA 17.256(4).]

Before July 1994, the department established all prevailing wage and fringe benefit rates according to the rates in local collective bargaining agreements as reported in a survey circulated by the department. The survey forms used before July 1994 asked for information regarding fringe benefit cost contributions in the following categories: "health and welfare," "vacation," "pension," "training fund," and "other." That survey also requested information regarding the daily, weekly, Saturday, and Sunday and holiday overtime pay requirements in those agreements.

In July 1994, the department began implementing new policies regarding its determination of prevailing wage and fringe benefit rates. The department determined that prevailing overtime wage rates would uniformly consist of time-and-one-half after forty hours a week, rather than the varying daily, weekly, Saturday, and Sunday and holiday overtime requirements often found in collective bargaining agreements, and that the fringe benefits considered in setting the prevailing rates would be limited to three categories: health and welfare, vacation and holiday, and pensions benefits. Under this revised policy, contributions for apprenticeship and training, labor-management cooperation committees, and supplemental unemployment benefits required under many collective bargaining agreements would not be included in the department's calculations of prevailing fringe benefit rates.

In August 1994, plaintiffs, the Michigan State Building and Construction Trades Council, AFL-CIO (the council), and Resteel Contractors Association, Inc. (the association), filed a complaint for declaratory judgment, injunctive relief, or a writ of mandamus, seeking to enjoin the new PWA policies and seeking to reinstate the department's policies in existence before July 1, 1994. Plaintiffs then filed a motion for a preliminary injunction or a writ of mandamus. The court granted plaintiffs' motion, in part. It found that the department had a duty under M.C.L. § 408.554; MSA 17.256(4) to establish prevailing wages at the rate that prevails under local collective bargaining agreements and that the process of ascertaining from collective bargaining agreements what the prevailing wages are is nondiscretionary and ministerial. The court directed defendants to cease and desist from implementing the department's new policy establishing prevailing overtime wage rates at time-and-one-half after forty hours a week and to reinstate the department's previous policy. The court requested additional briefing regarding the definition of "fringe benefit" and entered a preliminary injunction restoring the status quo for establishing prevailing fringe benefit rates under the PWA.

The parties returned to the circuit court in September 1997 to resolve the fringe benefit issue.² The court granted plaintiffs' motion for injunctive relief and ordered the department to include in its determination of prevailing wage and fringe benefit rates contributions required by relevant collective bargaining agreements for apprenticeship and training, labor management committees, and supplemental unemployment benefits. The court concluded that the PWA should be liberally construed to benefit and protect employees and that the fringe benefits at issue were for the benefit of employees because they indirectly benefited all employees and advanced their interests.

Defendants argue on appeal that because the PWA requires that the department determine the prevailing wage and fringe benefit rates, but does not define the terms "overtime," or "fringe benefit," the department has discretion to define what constitutes "overtime" and a "fringe benefit" under the PWA and apply those definitions in establishing prevailing wage and fringe benefit rates. Statutory interpretation is a question of law that we review de novo on appeal. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998).

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). This Court will not read into a statute anything that is not within the manifest intention of the Legislature as gathered from the act itself. In re S. R., 229 Mich.App. 310, 314, 581 N.W.2d 291 (1998). Therefore, our courts look first to the specific language of the statute. In re MCI Telecommunications Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). If the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted. Heinz v. Chicago Rd. Investment Co., 216 Mich.App. 289, 295, 549 N.W.2d 47 (1996). Indeed, courts may not speculate with regard to the probable intent of the Legislature beyond the words expressed in the statute. In re Schnell, 214 Mich.App. 304, 310, 543 N.W.2d 11 (1995). Unless explicitly defined in a statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. McClellan v. Collar (On Remand), 240 Mich.App. 403, 613 N.W.2d 729 (2000).

We address first defendants' argument with regard to overtime wages. Defendants contend that because the PWA contains no definition of the term "overtime," the department may rely on the definition found in the Minimum Wage Law of 1964, M.C.L. § 408.384a; MSA 17.255(4a),³ and apply that definition uniformly in establishing prevailing wage rates, irrespective of the specific provisions regarding overtime pay found in many collective bargaining agreements. We disagree. The plain language of the PWA specifically provides that the department shall establish the prevailing wage and fringe benefit rates at the same rates as in local collective bargaining or similar agreements. The word "shall" is generally used to designate a mandatory provision. Depyper v. Safeco Ins. Co. of America, 232 Mich.App. 433, 438, 591 N.W.2d 344 (1998). Moreover, this Court has previously determined that the department's discretion in establishing prevailing wages under § 4 is extremely limited:

The Michigan Legislature has not delegated any legislative, policy-making authority to the Department of Labor. The Legislature has declared as the policy of this state that construction workers on public projects are to be paid the equivalent of the union wage in the locality... The Department is merely authorized to implement what the Legislature has already declared to be the law in Michigan.

... [T]he statute expresses the policy that wages equal to union scale are to be paid to both union and nonunion workers on public construction projects.... [The Legislature] merely adopted, as the critical standard to be used by the Department of Labor in determining prevailing wage, the wage rate arrived at through a collective bargaining process.... [West Ottawa Public Schools v. Director, Department of Labor, 107 Mich.App. 237, 245-246, 309 N.W.2d 220 (1981).]

Overtime wages clearly fall within the category of wages to be included when determining prevailing wage rates. Further, there is no question that collective bargaining agreements contain very specific provisions regarding overtime pay and that those provisions may contain variable overtime rates. We conclude, therefore, that under the unambiguous language of the PWA, the department, in establishing prevailing wage rates, has no discretion to depart from the wage provisions in local collective bargaining agreements by defining "overtime" in a manner inconsistent with those agreements.

We address next defendants' argument that because the term "fringe benefit" is not defined in the PWA, the department may rely on the definition found in the wages and fringe benefits act, M.C.L. § 408.471 et seq.; MSA 17.277(1) et seq.,⁴ to determine what benefits should be included in its calculations of prevailing fringe benefit rates. We disagree. While the term "fringe benefit" is not specifically defined in the PWA, again, reference to a definition in a different statute addressing a similar...