The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5508 June 29, 1979 SCHOOLS AND SCHOOL DISTRICTS: Payment of prevailing rates of wages and fringe benefits to employees OFFICERS AND EMPLOYEES: Payment of prevailing rates of wages and fringe benefits to school district employees LABOR AND EMPLOYMENT: Payment of prevailing rates wages and fringe benefits to school district employees 1965 PA 166, as amended by 1978 PA 100, does not require that employees of school boards be paid rates of wages and fringe benefits equal to that paid to construction workers of independent contractors. Honorable Jack Faxon State Senator The Capitol Lansing, Michigan 48909 Honorable Thomas Guastello State Senator The Capitol Lansing, Michigan 48909 You have each requested my opinion on a question which may be rephrased as follows: Does 1965 PA 166, as amended by 1978 PA 100, require that employees of school boards be paid rates of wages and fringe benefits prevailing in the locailty in which the work is performed? Following enactment of 1965 PA 166, MCLA 408.551 et seq; MSA 17.256(1) et seq, hereinafter the act (1), question arose at to its application to construction projects relating to school districts. That issue came before Michigan's appellate courts in Bowie v Coloma School Board, 58 Mich App 233, 236; 227 NW2d 298 (1975). In that case the court said: 'At the outset, in construing this statute we are of the opinion that since it is in derogation of common law and since it provides for certain penalties in the event of violation, that it must be strictly construed. Having these precepts in mind, we must first seek to determine whether it was within the legislative intent that school districts should be included in and bound by the provisions of the statute. Under the principle of strict construction, the intent of the Legislature to include school districts within the statute must affirmatively appear.' With respect to legislative intent, the court, at p 241, said: '. . . The statute does not disclose affirmatively that it was the legislative intent that 'school districts' were included within the provisions. The use of the term 'school districts' could easily have been made a part of the statute had such been the intent. . . .' 1978 PA 100 amended section 1 of the act to include school districts within tis purview. Specifically, Act 100 amended section 1 to read as follows: '(a) 'Construction mechanic' means a skilled or unskilled mechanic, laborer, worker, helper, assistant, or apprentice working on a state project but shall not include executive, administrative, professional, office, or custodial employees. '(b) 'State project' means new construction, alteration, repair, installation, painting, decorating, completion, demolition, conditioning, reconditioning, or improvement of public buildings, schools, works, bridges, highways, or roads authorized by a contracting agent. '(c) 'Contracting agent' means any officer, school board, board or commission of the state, or a state institution supported in whole or in part by state funds, authorized to enter into a contract for a state project or to perform a state project by the direct employment of labor. '(d) 'Commissioner' means the department of labor. '(e) 'Locality' means the county, city, village, township, or school district in which the physical work on a state project is to be performed.' It will also be noted that 1965 PA 166, supra, Sec. 2, provides in pertinent part: 'Every contract executed between a contracting agent and a successful bidder as contractor and entered into pursuant to advertisement and invitation to bid for a state project which requires or involves the employment of construction mechanics, other than those subject to the jurisdiction of the state civil service commission, and which is sponsored or financed in whole or in part by the state shall contain an express term that the rates of wages and fringe benefits to be paid to each class of mechanics by the bidder and all of his subcontractors, shall be not less than the wage and fringe benefit rates prevailing in the locality in which the work is to be performed. . . .' The entire act is cast in terms of the enacting language which spells out as its purpose 'to require prevailing wage and fringe benefits on state projects.' Thus, the act is concerned with the relationship between public agencies and independent contractors who bid on projects. Its purpose is to assure that successful bidders on state projects pay the prevailing rates of wages and fringe benefits. Since the inclusion of schools within the definition of state projects and school boards within the definition of contracting agent, it is clear that schools are currently included within the requirement that independent contractors working on state projects must pay the rates of wages and fringe benefits prevailing in the locality in which the work is to be performed. It should also be observed that the construction, reconstruction or remodeling of any school building or addition thereto is subject to the requirements of 1937 PA 306, MCLA 388.851 et seq; MSA 15.1961 et seq. Under this act, building plans must be submitted to the Superintendent of Public Instruction for his approval prior to construction. 1937 PA 306, supra, Sec. 1(a). All such plans must be prepared by and the construction supervised by a registered architect or engineer. 1937 PA 306, Sec. 1(a), supra. Further, 1937 PA 306, supra, requires approvals as to fire safety and health. Your question, however, is directed to whether the prevailing rates and fringe benefits which are required to be paid to employees of contractors by virtue of 1965 PA 166, Sec. 2, supra. must also be paid to employees of a school board. As amended, the act places the responsibility upon the contracting agent, i.e., the school board, to assure that the contracts between it and the bidders contain provisions requiring payment by the latter of rates of wages and fringe benefits prevailing in the locality in which the work is to be performed. The thrust of the act as to wage and fringe benefit payments is clear--it requires that contractors pay prevailing wages and fringe benefits. It is silent with respect to wages and fringe benefits paid by the public contracting agent, i.e., the school board, nor does the applicant of the act turn upon the type of work being performed. With respect to the establishment of wages and fringe benefits of school employees, 1947 PA 336, Sec. 9 added by 1965 PA 397, MCLA 423.209; MSA 17.455(a), guarantees the right of all public employees to form and join labor organizations and bargain collectively through representatives of their choice. See City of Escanada v Michigan Labor Mediation Board, 19 Mich App 273; 172 NW2d 836 (1969). Such bargaining may, of course, establish a scale of wage and fringe benefits which are less or greater than that prevailing in the locality where the work is performed. Therefore, it is my opinion that 1965 PA 166, supra, as amended by 1978 PA 100, Sec. 1, supra, does not require that employees of school boards be paid rates of wages and fringe benefits equal to that of construction workers of independent contractors. Frank J. Kelley Attorney General (1)