Muskegon Bldg. and Const. Trades v. Muskegon Area Intermediate School Dist.

• Decision Date: 06 February 1984
• Docket Number: Docket No. 67497
• Parties: MUSKEGON BUILDING AND CONSTRUCTION TRADES, Plaintiff-Appellee, v. MUSKEGON AREA INTERMEDIATE SCHOOL DISTRICT, Defendant-Appellant. 130 Mich.App. 420, 343 N.W.2d 579, 15 Ed. Law Rep. 1277
• Court: Court of Appeal of Michigan — District of US

Page 579

343 N.W.2d 579

MUSKEGON BUILDING AND CONSTRUCTION TRADES, Plaintiff-Appellee, v. MUSKEGON AREA INTERMEDIATE SCHOOL DISTRICT,

Defendant-Appellant.

Docket No. 67497.

130 Mich.App. 420, 343 N.W.2d 579, 15 Ed. Law Rep. 1277

Court of Appeals of Michigan.

Submitted June 7, 1983.

Decided Nov. 8, 1983.

Released for Publication Feb. 6, 1984.

[130 MICHAPP 422] McCroskey, Feldman, Cochrane & Brock by Seymour L. Muskovitz, Muskegon, for plaintiff-appellee.

Thrun, Maatsch & Nordberg, P.C. by Patrick B. Mooney, Lansing, for defendant-appellant.

Before MAHER, P.J., and GRIBBS and SANBORN, ^* JJ.

PER CURIAM.

Defendant appeals by leave granted from an order granting a permanent injunction entered in the Muskegon County Circuit Court on October 13, 1982. The injunction enjoined defendant "from receiving bids and/or awarding contracts which do not require paying the prevailing wage rate and fringe benefits" pursuant to M.C.L. Sec. 408.551 et seq.; M.S.A. Sec. 17.256(1) et seq.

On September 18, 1981, defendant purchased [130 MICHAPP 423] Wesley School to be used as a special education facility. Approximately $220,000 of the purchase price was received from the State of Michigan pursuant to M.C.L. Sec. 388.1656; M.S.A. Sec. 15.1919(956).

Defendant then began to solicit bids for additions to, and the remodeling of, the school. The bid specifications for this project did not include provisions for the payment of wages and fringe benefits at the prevailing rates. Plaintiff became aware of this fact and filed its suit, requesting injunctive relief.

After a show cause hearing, the trial court concluded that plaintiff's proposed construction of M.C.L. Sec. 408.551 et seq.; M.S.A. Sec. 17.256(1) et seq. (hereinafter referred to as "the prevailing wage act") was correct. The court granted a permanent injunction premised on its finding that, by failing to provide for the payment of prevailing rates and benefits, defendant was guilty of a misdemeanor. M.C.L. Sec. 408.557; M.S.A. Sec. 17.256(7).

I

Does plaintiff have standing to bring this suit?

Defendant first alleges that plaintiff does not have standing to bring this lawsuit because it has failed to allege or show any injury to itself or its members as a result of defendant's acts. ¹

"Standing" is a term used to denote that a party's interest in the outcome of a case is sufficient to ensure sincere and vigorous advocacy. At the same time, however, evidence that a party has engaged in full and vigorous advocacy, by itself, is insufficient to confer standing on a party. A litigant attempting to enforce or vindicate a right [130 MICHAPP 424] extended by statute must also show that he will be detrimentally affected in a manner different than the citizenry at large. Alexander v. City of Norton Shores, 106 Mich.App. 287; 307 N.W.2d 476, lv. den. 411 Mich. 1004 (1981). Defendant asserts that until a contract has actually been awarded any harm to plaintiff is speculative since the low bidder on the contract may well offer prevailing wage and benefit rates. Defendant further notes that the prevailing wage act does not require that union employees be hired but, rather, only that prevailing wages and benefits be extended to those workers who are hired. Finally, defendant contends that it is obvious that plaintiff cannot be harmed by defendant's alleged failure to comply with the act because plaintiff, itself, is clearly incapable of actually being employed by defendant.

The first of defendant's arguments for finding that plaintiff lacks standing--that harm may never occur because the contract may ultimately be awarded to a contractor offering prevailing wages and benefits--goes to whether plaintiff is entitled to the injunctive relief it requested, not whether it has standing to prosecute this action.

Defendant's argument that plaintiff lacks standing because the individual members of the trade associations it represents have no right to employment under the act is based upon this Court's opinion in Kaminskas v. Detroit, 68 Mich.App. 499; 243 N.W.2d 25 (1976), lv. den. 399 Mich. 826 (1977). In Kaminskas, various associations representing city employees sought an injunction to restrain the City of Detroit from hiring provisional employees, which hiring was alleged to be in violation of the city charter. This Court upheld the lower court's determination that the plaintiff associations lacked standing, noting that these associations failed to [130 MICHAPP 425] allege that they were authorized to represent anyone who had been injured by the hiring of provisional employees. Kaminskas, supra, 68 Mich.App. p. 503, 243 N.W.2d 25. ²

In this case, by way of contrast, George Carron, an officer of the plaintiff organization, made the following allegations in an affidavit which was filed with plaintiff's complaint for declaratory judgment:

"1. The Muskegon Area Intermediate School District has advertised for bids for alterations and repairs to certain school buildings.

"2. The advertising for bids did not contain any requirement that the bidders be required to pay the prevailing wage rate.

"3. The bid documents do not contain any requirement that the contractors pay the prevailing wage rate.

"4. In my experience, under such circumstances, the prevailing wage rate is not paid to most, if not all of the workers.

"5. The journeymen members of the various trades belonging to the Muskegon Building and Construction Trades will not be hired or utilized in the alterations and repairs if [sic] the school buildings that are the subject of the bids.

"6. Irreparable harm will occur to these members because a significant number of them are unemployed and they will not be employed in the above subject project. If the prevailing wage rate were required to be paid, a substantial, if not all, journeymen hired for the project would be members of the Muskegon Building and Construction Trades."

In contrast to the situation in Kaminskas, the affidavit filed here in support of the requested injunctive relief shows that plaintiff does represent trade organizations whose individual members will [130 MICHAPP 426] allegedly be harmed by defendant's failure to require all bidding contractors to offer prevailing wages and benefits. It is true that none of the individual members of the organizations represented by plaintiff has a right to a job on the Wesley School project if prevailing wages and benefits must be offered by defendant. Plaintiff alleges, however, that, if the prevailing wage act is complied with, the reality is that substantial numbers of these workers would, indeed, receive jobs on the project. Although defendant may contest these allegations, this again goes to whether plaintiff is entitled to the relief it requested, not its standing to bring this lawsuit.

Defendant's final argument that plaintiff lacks standing is based on plaintiff's status as an association of trade organizations--an association which is concededly incapable of being employed on the project. We disagree that this fact deprives plaintiff of standing.

In White Lake Improvement Ass'n v. City of Whitehall, 22 Mich.App. 262; 177 N.W.2d 473 (1970), plaintiff sued to abate a nuisance allegedly caused by defendants' discharge of pollutants into White Lake. Although plaintiff owned no property abutting the lake, some of its members were riparian landowners on the lake. The Court, speaking through Judge (now Justice) Levin found that plaintiff had standing, stating:

"True, the plaintiff association owns no land, but its sole purpose is to represent the interest of its members, many of whom are riparian landowners, in preventing the pollution of White Lake.

"No constructive purpose would be served by requiring the members of the plaintiff association who are riparian owners to maintain this action individually and thereby require that they seek in some other [130 MICHAPP 427] fashion financial and other support from the other affected landowners. Additionally, allowing the landowners to associate together for this purpose may avoid a multiplicity of suits; the difficulties that are likely to be encountered where there are a large number of plaintiffs are all too familiar to anyone who has had experience in such litigation. The most expedient way for the riparian owners to obtain a determination on the merits is to allow them to combine and join together for this purpose with others of a like interest under a single banner both before and at the time of suit: 'The only practical judicial policy when people pool their capital, their interests or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all.' " (Footnote omitted.) White Lake, pp. 272-273, 177 N.W.2d 473.

Defendant relies on Michigan License Beverage Ass'n v. Behnan Hall, Inc., 82 Mich.App. 319, 325-326; 266 N.W.2d 808 (1978), in which one panel of this Court drew the following distinction between White Lake and the matter which it had to resolve:

"A circumstance in the White Lake case that distinguishes it from the facts before us is that the association in the former was constituted for solely representative purposes. Id. [22 Mich.App.] at 272; 177 N.W.2d at 477. In the case under review the facts indicate that plaintiff's corporate purpose is unrelated to that of a litigation representative. Further, the cases upon which White Lake was premised involved associations that acted as a class representative or sought to establish rights in which they had a direct interest, or without which their existence would terminate. None of these factors characterize plaintiff's position in the instant litigation." (Footnotes omitted.)

In the case sub judice, it is clear that plaintiff was organized as a representative association to enhance the political and economic power of its [130 MICHAPP 428] trade organization members and, ultimately, the...