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Associated Builders and Contractors v. Director7/19/2005
uch arbitrary or self-motivated action on the part * * * of such private party to whom the legislative function has really been delegated,' misses the point and actually constitutes a substitution of judicial judgment for that of the Legislature." Male v Ernest Renda Contracting Co, supra, 533-534.
Accord, Kugler v Yocum, 69 Cal 2d 371; 71 Cal Rptr 687; 445 P2d 303 (1968), Union School Dist of Keene v Comm'r of Labor, 103 NH 512; 176 A2d 332 (1961), Baughn v Gorrell & Riley, 311 Ky 537; 224 SW2d 436 (1949), Metropolitan Water Dist of Southern California v Whitsett, 215 Cal 400; 10 P2d 751 (1932). Contra, Industrial Comm v C & D Pipeline, Inc, 125 Ariz 64; 607 P2d 383 (1980) [sic 1979], Bradley v Casey, 415 Ill 576; 114 NE2d 681 (1953), Wagner v Milwaukee, 177 Wis 410; 188 NW 487 (1922).
While we recognize that there is a split of authority on this issue, we are persuaded that Male, supra, presents the better view. 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 of Labor's determination of that prevailing wage does not amount to the setting of any state policy. The Department is merely authorized to implement what the Legislature has already declared to be the law in Michigan.
In our judgment, the basic premise of plaintiffs' argument is invalid. Plaintiffs maintain that the prevailing wage statute is constitutionally defective because it delegates to the unions, or to the unions and contractor/employers together, the authority to determine the wage rate on state projects. The statute contains no such delegation. Rather, the 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 did not confer on the unions and the contractor/employers the power to set the prevailing wage rate for public contracts. It 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 which is completely unrelated to and independent of the prevailing wage statute. The purpose of collective bargaining is not to set the wage scale for public projects but rather to set the wage scale for all construction projects.
There is a vital distinction between conferring the power of making what is essentially a legislative determination on private parties and adopting what private parties do in an independent and unrelated enterprise. . . .
[West Ottawa Schools, supra, 107 Mich App at 242-248. Emphasis added.]
We conclude that West Ottawa Public Schools, supra, is on point, and reject plaintiff's unlawful delegation challenge.
B.
Supplemental Briefing Post-Remand
After the Supreme Court remanded to this Court, 472 Mich at 117, this Court granted plaintiff's motion to file a supplemental brief. Defendants filed a response brief. Having reviewed the supplemental briefing post-remand, we conclude that plaintiff's arguments are largely addressed by our adoption of West Ottawa Schools, supra, and that the remaining issues are without merit.
Plaintiff's supplemental brief draws this Court's attention to J A Croson Co, 2003 LEXIS NLRB 328, an administrative law judge's decision issued on June 27, 2003, subsequent to J A Croson Co v J A Guy, Inc, 81 Ohio St 3d 346; 691 NE2d 655 (1998). Plaintiff asserts that . . . litigation of that Ohio state court case (Croso
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