Appeal from the Order of the Pennsylvania Department of Labor and Industry in case of United Transportation Union v. Baltimore and Ohio Railroad and Western Maryland Railway Company, Order of April 5, 1973.
Ross Van Denbergh, with him Norman R. Bradley and, of counsel, Saul, Ewing, Remick & Saul, for appellants.
Harold E. Stambaugh, Assistant Attorney General, with him Charles S. Solit, General Counsel, for appellee.
Thomas P. Shearer, for intervening appellee.
Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Rogers. Dissenting Opinion by Judge Blatt. Judge Kramer joins in this dissent.
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United Transportation Union, a labor organization which represents the employes of Baltimore & Ohio
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Railroad Co. and Western Maryland Railway Company, filed with the Department of Labor and Industry of Pennsylvania complaints alleging the failure of those railroad companies to comply with an Act of Assembly requiring such enterprises to pay its employes weekly and requesting the Department to order compliance. The Act in question is that of July 14, 1971, P.L. 221, 43 P.S. § 255.1, which provides: " Unless otherwise stipulated in the contract of hiring or in the applicable labor agreement, every common carrier by railroad or corporation or joint stock association, operating a steam, electric, or diesel surface railroad, or engaged in the sleeping car business, or carrying on the business thereof by lease or otherwise, shall pay once each week to each employe, the wages earned for the seven day period ending not more than fourteen days prior to such payment. Wages as the term is herein used shall be limited to those earnings derived from basic pro rata rates of pay pursuant to a labor agreement, and shall not include incentives, bonuses, and other similar types of fringe payments." (Emphasis supplied.)
The Department appointed an examiner who conducted an evidentiary hearing to determine whether there existed contracts of hiring or labor agreements which would exempt the companies from compliance with the Act and justify the continuance by them of their practice of paying employes biweekly. The examiner found that there were labor agreements authorizing biweekly pay periods covering some but not all of the employes of each of the railroad companies. He recommended, and the Secretary approved and issued, an order that the companies pay those employes not covered by agreements weekly as the Act provides. The railroad companies have appealed.
While the appellants appear still to disagree with the Secretary's conclusion that a customary pay practice not embodied in a written labor agreement is not
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an applicable labor agreement, the only question they present for our review is that of the constitutionality of the Pennsylvania Act under the Supremacy Clause,*fn1 the Commerce Clause*fn2 acting in conjunction with the Supremacy Clause, the Fourteenth Amendment of the United States and Article III, Section 32 of the Pennsylvania Constitution, which last ...