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NORFOLK AND WESTERN RAILWAY COMPANY v. COMMONWEALTH PENNSYLVANIA (05/04/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 4, 1977.

NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, AND UNITED TRANSPORTATION UNION, RESPONDENTS

Appeal from the Order of the Department of Labor and Industry in case of Commonwealth of Pennsylvania, Department of Labor and Industry and United Transportation Union v. Norfolk and Western Railway Company, dated July 14, 1976, approved and adopted July 20, 1976.

COUNSEL

Henry D. Light, Assistant General Solicitor, with him Kirkpatrick, Lockhart, Johnson and Hutchison, and Dennis M. Sheedy, for petitioner.

Mary Ellen Krober, Assistant Attorney General, for respondent, Department of Labor and Industry.

T. P. Shearer, for respondent, United Transportation Union.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 30 Pa. Commw. Page 83]

The Norfolk and Western Railway Co. (appellant) appeals here from an order of the Pennsylvania Department of Labor and Industry (Department) directing the appellant to pay certain employees on a weekly basis in compliance with the Act of July 14, 1971, P.L. 221, No. 43, 43 P.S. § 255.1 (Act 43).

This action commenced with the filing of a complaint by the United Transportation Union Enginemen (UTU(E)) with the Department on behalf of its members working as engine service employees on the appellant's Pittsburgh and West Virginia Division.

[ 30 Pa. Commw. Page 84]

The complaint alleged that the appellant was paying these employees semi-monthly in violation of Act 43, which provides in pertinent part:

Unless otherwise stipulated in the contract of hiring or in the applicable labor agreement, every common carrier by railroad . . . 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.

The Department appointed an examiner who conducted an evidentiary hearing to determine whether or not there existed a contract of hiring or a labor agreement which would exempt the appellant from compliance with Act 43 and justify the continuance of the appellant's practice of paying these employees semi-monthly. The Examiner found that there was no such contract of hiring or labor agreement authorizing semi-monthly pay periods covering the UTU(E) employees, and, on his recommendation, the Department issued an order that the appellant pay wages weekly to those employees who are members of the UTU(E) working on the appellant's Pittsburgh and West Virginia Division. This appeal followed.

Section 44 of the Administrative Agency Law,*fn1 71 P.S. § 1710.44, limits our scope of review here to a determination of whether or not the findings of fact are supported by substantial evidence, whether or not an error of law was committed, and whether or not the appellant's constitutional rights were violated.

[ 30 Pa. Commw. Page 85]

    to presume that the Legislature intended the Department to enforce this Act also.*fn8 We believe that these wage statutes illustrate a legislative intention that the Department have the authority to insure that workers in the Commonwealth are paid a fair and reasonable wage for their efforts in a prompt and timely fashion and that this intention amounts to an implied delegation of authority to the Department to administer Act 43, even in the absence of an express delegation within the four corners of the Act.

The appellant argues that, by paying the UTU(E) employees on a semi-monthly basis, it is already in compliance with Act 43. It claims, first, that the appellant's ten-year practice of paying these employees on a semi-monthly basis, although not authorized in any contract of hiring or collective bargaining agreement with the UTU(E), has become, due to the acquiescence of the UTU(E), part of the labor agreement between the parties. We find it unnecessary to respond to this contention because we interpret the exception contained in Act 43 to require an express provision regarding the time of payment contained in either a collective bargaining agreement or in an individual contract of hiring. The relevant portion of Act 43 clearly states "[u]nless otherwise stipulated in the contract of hiring or in the applicable agreement. . . ." (Emphasis added.) We believe that the presence of the word "stipulated" is indicative of a legislative intent that any provision regarding the payment of wages must be expressly contained within the contract of hiring or labor agreement to come within this exception, and, because it is clear here that no such provision is contained within any labor agreement or contract

[ 30 Pa. Commw. Page 87]

    of hiring between the UTU(E) and the appellant, the appellant's present practice of paying these employees on a semi-monthly basis is clearly in violation of Act 43.

The appellant's second contention as to its alleged compliance with Act 43 is that, because the members of the UTU(E) occasionally work under another collective bargaining agreement which does stipulate semi-monthly payment of wages, the appellant is therefore in compliance with Act 43 in always paying such employees on a semi-monthly basis. We disagree. The record indicates that the collective bargaining agreement between the appellant and the UTU(E) applies to the craft known as engine service workers or firemen, and all UTU(E) members are not only eligible to work as engineers but do so whenever work in this craft is available. When these employees work as engineers, they are covered by a collective bargaining agreement between the appellant and the Brotherhood of Locomotive Engineers (B.L.E.), which specifically provides that wages be paid on a semi-monthly basis. In such circumstances, we believe that the appellant is in compliance with Act 43 in paying the wages earned by the UTU(E) employees who are then working as engineers under the B.L.E. collective bargaining agreement on a semi-monthly basis because this is specifically provided in the B.L.E. agreement and therefore comes within the exception provided in the Act. We do not believe, however, that the UTU(E) members can be or are simultaneously subject to both agreements. The wages, therefore, earned by them as firemen under the UTU(E) collective bargaining agreement must be paid on a weekly basis, as specified in Act. 43.

The appellant's final arguments, that Act 43 is invalid under the Supremacy and Commerce Clauses of the United States Constitution, have been decided adversely

[ 30 Pa. Commw. Page 88]

    to it by the Pennsylvania Supreme Court in Baltimore and Ohio Railroad Co. v. Department of Labor and Industry, 461 Pa. 68, 334 A.2d 636, cert. denied, 423 U.S. 806 (1975). That case is controlling here.

The order of the Department of Labor and Industry is, therefore, affirmed.

Order

And Now, this 4th day of May, 1977, the order of the Department of Labor and Industry dated July 20, 1976 is hereby affirmed.

Disposition

Affirmed.


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