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.
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.
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.
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 ...