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Associated Builders and Contractors v. Director7/19/2005
xistence of their market recovery and job targeting programs from the CIS. It is certainly possible that this collusion taints the collective bargaining process. It is certainly possible that this taint results in higher wages rates for projects covered by the Prevailing Wage Act. But there is not a scintilla of evidence in this record that this is so. And the reason that no such evidence exists in the record is that the Saginaw ABC made no attempt, by complaint, petition or otherwise, to engage the accumulated technical competence of the CIS to determine whether any of these possibilities might be confirmed.
In summary, it is one thing to label an administrative agency, which might be able to settle such issues conclusively, as a mere paper shuffler; rhetoric is often its own reward. It is quite another to seek untimely judicial intervention that has the effect, intended or not, of disruption of an otherwise cohesive administrative scheme. And it is extraordinarily inefficient to then seek judicial review without the benefit of a full factual record developed before the agency. As a matter of law, therefore, the Saginaw ABC has failed here to exhaust its administrative remedies. The trial court thus erred when it denied summary disposition as to the Saginaw ABC's unlawful delegation claim on the basis that there were material issues of fact as to which discovery could proceed.
III. "Artificially High" Wage Rates
In support of its contention that the Prevailing Wage Act is unconstitutionally vague, the Saginaw ABC asserts that:
To say that the [Prevailing Wage] Act requires the payment of "prevailing" wages in the locality is a misnomer. Union construction workers perform far less construction work in Michigan than do non-union construction workers. The wages paid to this minority of workers under collective bargaining agreements are well above industry average. Since those high rates found in collective bargaining agreements are used exclusively to set the rates established by the CIS on prevailing wage projects, the "prevailing" wages under the Act are always far above the average for the industry. Thus, it cannot be said that they are truly "prevailing." Since trade unions are effectively able to force their exorbitant wage and fringe benefits rates on all publicly-funded construction projects in Michigan through the application of the [Prevailing Wage Act] the overall impact of the [Prevailing Wage] Act is to increase the cost to the government for public works construction projects over what they would cost in the open market.
In a footnote, the Saginaw ABC goes further:
The resultant unnecessary increased cost is not the only affront to Michigan taxpayers. The [Prevailing Wage] Act's original purpose has a checkered past as well. According to the Michigan Supreme Court, the Act is patterned after the federal Davis-Bacon Act, 40 U.S.C. 276a, and has its same goals and purposes. Western Michigan University v. State of Michigan, 455 Mich 531, 535-536 (1977). The federal statute was enacted in 1931 in large part as a means by which to protect the higher wages of white construction workers in northern cities such as New York, Philadelphia and Detroit from being diluted through "cheap colored labor" from the southern states. Thiebolt, Prevailing Wage Legislation, Wharton School of the University of Pennsylvania, (1986), p. 30. There is very strong evidence that the Michigan [Prevailing Wage] Act has reduced employment opportunities in particular for blacks. Richard Vetter, supra, referencing Robert P. Hunter, Union Racial Discrimination is Alive and Well, Mackinac Center for Public Policy, September 1977.
Now, it may well be
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