Jurisdictional Statement — Baltimore & Ohio Railroad v. Pennsylvania Department of Labor & Industry

Court, U. §,

tit &D

j

1 JUN f

HAEL AQUA Q fr

IN THE hee » IR, CLERK

Supreme Court of the United States

October Term, 1974.

No. %4-1581

BALTIMORE & OHIO RAILROAD CO.

and

WESTERN MARYLAND RAILWAY COMPANY,

Appellants,

v.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF LABOR AND INDUSTRY,

and

UNITED TRANSPORTATION UNION,

Appellees.

On Appeal From the Supreme Court of Pennsylvania.

JURISDICTIONAL STATEMENT.

Norman R. Brap.ey,

3800 Centre Square West,

1500 Market Street,

Philadelphia, Pa. 19102

Attorney for Appellants.

Of Counsel:

Sau, Ewine, Remick & Savi,

3800 Centre Square West,

1500 Market Street,

Philadelphia, Pa. 19102

(215) 972-7777

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

TABLE OF CONTENTS.

Page

IS Re on ccctunesn§ padebdnetedenesecesnandss 1

PE. <cdsseuceedcdenabadewneuses0isdsseeeenennes 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 3

CIE og pea ndnceds Caubenegues 664eeunenes 3

ET CF SE IE nccccenncdcccddvescedsceseceseess 4

THE FEDERAL QUESTIONS ARE SUBSTANTIAL ...........+..5: 6

EY de ecewetbecbans d44ashesesesadssbadanducaes 15

APPENDIX:

I sinc nit ccebddueneasdeniandenncsse Al

Opinion of the Supreme Court of Pennsylvania:

PED TEED ccicccscecseneusacccetenccccece A4

SE SID “og cccccanensceesasdbeceasoees Al7

Opinion of the Commonwealth Court of Pennsylvania:

i Sn act cuck sé cgeceebeeehedeueseates A26

EE ES ic ven cundiceseeddsccesacatacen A35

Recommendations and Findings of Hearing Examiner .. A38

TABLE OF CASES CITED.

Page

Amalgamated Assoc. of Street R.W. Employees v. Lock-

ridge, 403 U.S. 274 (1971) .......cceeeeeeerceeeeeee Ss)

California v. Taylor, 353 U.S. 553 (1957) ..........-+05- ll

Detroit & Toledo Shoreline Railroad Company v. United

Transportation Union, 396 U.S. 142 (1969) ........... 8,14

Florida Lime & Avocado Growers v. Paul, 373 U.S. 132

COD cencccccdsuceccucsvensudusussadencesasseson ll

Hines v. Davidowitz, 312 U.S. 52 (1941) ............445-. 7,11

Perez v. Campbell, 402 U.S. 637 (1971) ..........-eeeeees 7,9

Terminal Railroad Association of St. L. v. Brotherhood of

Railroad Trainmen, 318 U.S. 1 (1943) ............64.. 2,12

United Airlines, Inc. v. Industrial Welfare Commission, 28

Cal. Reporter 238 (1963) ..........csseeccceccceecs 14

STATUTES CITED.

Page

Pennsylvania Act No. 43 of 1971, [43 P.S. $255.1 (Supp.

SU 0nckeesesccnsseuesuiudasuciaaes 2, 3, 4, 5, 6, 8, 10, 14

Railway Labor Act, 45 U.S.C. § 152 et seq. (1926) ....... 2,4, 14

OS Pe, ED 0 5-43 bn'66 600 ceakcenes césevucuuasensen 2

i ey ED ss kUi0kbncdecbasndencsbeesasensaunan 2

CONSTITUTIONS CITED.

Page

Pennsylvania Constitution, Article 3, §32 ................. 6

United States Constitution:

es Se Wh OD Ok. k'o icc be keccdesobibennn 3, 6, 7

ee Ce I Secs Ncebidabacesedeeéeciscuncase 3, 6, 7

Pe TD oon 6 66 6 60d0cdennatéekcseesa 6

IN THE

Supreme Court of the United States

OcrToBER TERM, 1974.

No.

BALTIMORE & OHIO RAILROAD CO.

AND

WESTERN MARYLAND RAILWAY COMPANY,

Appellants,

v.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF LABOR & INDUSTRY,

AND

UNITED TRANSPORTATION UNION,

Appellees.

On APPEAL FROM THE SUPREME CouRT OF PENNSYLVANIA.

JURISDICTIONAL STATEMENT.

OPINIONS BELOW.

The opinion of the Supreme Court of Pennsylvania is

set forth in the Appendix, infra pp. A4-A25. The opinion

of the Commonwealth Court of Pennsylvania is reported

at 12 Pa. Commonwealth Ct. 292 (1974) and is set forth

in the Appendix, infra pp. A26-A37. The Recom-

mendations and Findings of Hearing Examiner, and

Order of the Commonwealth of Pennsylvania, Depart-

ment of Labor & Industry, are set forth in the Appendix,

infra pp. A38-A63.

2 Jurisdictional Statement

JURISDICTION.

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257(2), this being an appeal which draws into

question the validity of Pennsylvania Act No. 43 of 1971

infra, p. 3, on the ground that it is repugnant to the

Constitution of the United States.

On April 5, 1973, Appellants, interstate railroads,

were ordered by the Pennsylvania Department of Labor

& Industry to change the pay intervals of certain of their

employees from bi-weekly, which was customary, to

weekly, pursuant to the provisions of Pennsylvania Act

No. 43 of 1971, [43 P.S. § 255.1 (Supp. 1972)]. On ap-

peal, the Commonwealth Court of Pennsylvania held that

the Railway Labor Act, 45 U.S.C. § 152 et seq. (1926),

had preempted State regulation of changes in working con-

ditions of railroad employees, including pay intervals, and

on February 11, 1974, set aside the order of the Pennsyl-

vania Department of Labor & Industry. On further ap-

peal, the Supreme Court of Pennsylvania reversed the

Order of the Commonwealth Court, holding, inter alia,

that Pennsylvania Act No. 43 of 1971 was neither in direct

conflict with nor preempted by the Federal Railway Labor

Act. This matter is thus appropriately brought to this

Court by appeal. See e.g. Terminal Railroad Association

of St. L. v. Brotherhood of Railroad Trainmen, 318 U.S.

1 (1943).

In the event that the Court does not consider appeal

the proper mode of review, Appellant requests that the

papers whereupon this appeal is taken be regarded and

acted upon as a petition for writ of certiorari pursuant to

28 U.S.C. § 2103.

Jurisdictional Statement 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

This case involves Article I, Section 8, Clause 3, and

Article VI, Clause 2, of the Constitution of the United

States.

This case also involves Pennsylvania Act of July 14,

1971, P.L. 221, No. 43, 43 P.S. § 255.1 (Supp. 1972) en-

titled “An Act Regulating the Time of Payment of Wages

and Earnings of Railroad Employees”, which provides that

“Unless otherwise stipulated in the contract of hiring

or in the applicable labor agreement, every common

carrier by railroad or corporation or joint stock asso-

ciation, operating as steam, electric, or diesel service

railroad, or engaged in the sleeping car business, or

carrying on the business thereof by lease or other-

wise, shall pay once each week to each employee, the

wages earned for the seven-day period ending not

more than fourteen days prior to such payment

period. Wages as the term herein is used shall be

limited to those derived from basic pro rata rates of

pay pursuant to the labor agreement, and shall not

include incentive, bonuses, and other similar types of

fringe payments.”

QUESTIONS PRESENTED.

1. Whether Pennsylvania Act No. 43 of 1971 directly

conflicts with the Railway Labor Act and is therefore un-

constitutional and invalid under the Supremacy Clause of

the United States Constitution; and

2. Whether Pennsylvania Act No. 43 of 1971 has been

preempted by the Railway Labor Act and is therefore un-

constitutional and invalid under the Commerce Clause

operating in conjunction with the Supremacy Clause of

the United States Constitution?

4 Jurisdictional Statement

STATEMENT OF THE CASE.

This is an administrative proceeding by the United

Transportation Union (“UTU”) against the Baltimore &

Ohio Railroad Co. (B&O) and the Western Maryland

Railway Company (“Western”) to compel the railroads to

pay their employees weekly rather than bi-weekly, pur-

suant to the requirements of Pennsylvania Act No. 43 of

1971, entitled “An Act Regulating The Time of Payment

of Wages and Earnings of Railroad Employees.”

The UTU is a national railroad labor organization

formed as a result of the merger of four former such

organizations on January 1, 1969. The four organizations

had been the Order of Railway Conductors and Brake-

man, the Brotherhoed of Locomotive Firemen and En-

ginemen, the Brotherhood of Railroad Trainmen and the

Switchmen’s Union of North America.

Prior to June, 1959, appellants’ employees represented

by the predecessors of UTU were paid on a semi-monthly

basis. Also prior to that time, pursuant to notices served

in accordance with Section 6 of the Railway Labor Act

(45 U.S.C., § 156) negotiations were entered into between

the B&O and the Association of General Chairmen of the

four B&O unions which later merged into the UTU and

also between Western and the Association of General

Chairmen of the Western unions which later merged into

UTU, whereby some of the unions sought to change the

existing practice of semi-monthly wage payments so that

all employees would be paid on Friday of each week.

While negotiations on the union proposals for a

change to a weekly pay system were in progress pursuant

to Section 6 of the Railway Labor Act, the railroads and

their respective associations reached agreement effective

August, 1959 on the B&O and April 16, 1960 on the West-

ern, providing for bi-weekly pay for all employees repre-

Jurisdictional Statement 5

sented by the predecessors of the UTU. Bi-weekly pay

has subsequently remained appellants’ customary pay

practice as to all members of the UTU employed by ap-

pellants within the Commonwealth of Pennsylvania.

On or about April 11, 1972, UTU filed a complaint

against the B&O before the Pennsylvania Department of

Labor and Industry requesting that proceedings be in-

stituted to compel the B&O to pay its employees repre-

sented by the UTU on a weekly basis in accordance with

the requirements of Pennsylvania Act No. 43 of 1971.

On or about October 18, 1972, the UTU filed a similar

complaint before the Department against Western. The

matter was heard on complaint and answer before Charles

Solit, General Counsel and Hearing Examiner, Pennsyl-

vania Department of Labor and Industry, on January 15,

1973.

Thereafter, on April 5, 1973, the Hearing Examiner

issued an Order approved by the Secretary of Labor and

Industry directing the B&O to comply as soon as practica-

ble and, in any event, no later than sixty (60) days from

the date of said Order, with Act No. 43 and to pay those

employees covered by the Collective Bargaining Agree-

ments of the former BLF&E and the former Order of

Railway Conductors in accordance with said Act. Said

Order further directed Western to institute compliance

with said Act and to pay as soon as practicable, and no

later than sixty (60) days from the date thereof, those

employees covered by the Collective Bargaining Agree-

ment of the former Brotherhood of Railroad Trainmen in

accordance with said Act.

On Appeal to the Commonwealth Court of Pennsyl-

vania from the Order of the Department of Labor and In-

dustry, the railroads argued that Pennsylvania Act No. 43

of 1971 is unconstitutional under the Supremacy Clause

of the United States Constitution, the Commerce Clause

6 Jurisdictional Statement

acting in conjunction with the Supremacy Clause and the

Fourteenth Amendment of the United States Constitution

and also under Article 3, § 32 of the Pennsylvania Constitu-

tion, proscribing local and special laws regulating labor.

The Commonwealth Court sustained the appeal based

upon the Supremacy and Commerce Clauses of the United

States Constitution and set aside the Order of the Penn-

sylvania Department of Labor & Industry. On further

apeal, the Supreme Court of Pennsylvania reversed, find-

ing neither a direct conflict between the Federal Railway

Labor Act and Pennsylvania Act No. 43 of 1971, nor

a general preemption of the subject matter of Pennsylvania

Act No. 43 by the Railway Labor Act. The Supreme Court

of Pennsylvania agreed with the Commonwealth Court

that Pennsylvania Act No. 43 did not deprive appellants

of the equal protection of the laws in violation of the

United States Constituticn or constitute a special or local

law regulating labor in violation of the Constitution of

the Commonwealth of Pennsylvania. Justice Pomeroy

filed a dissenting opinion in which he was joined by Chief

Justice Jones, agreeing with appellants herein that State

regulation of the pay periods of employees of interstate rail

carriers had been preempted by the Railway Labor Act.

THE FEDERAL QUESTIONS PRESENTED

ARE SUBSTANTIAL.

As construed by Pennsylvania's highest court, Penn-

sylvania Act No. 43 of 1971 permits the state legislature

to intervene in and terminate the collective bargaining

process between interstate railroads and their Pennsyl-

vania employees and to change existing working condi-

tions without the notice and bargaining requirements of

the federal Railway Labor Act. This interference with

and intrusion upon federal statutory requirements raises

Jurisdictional Statement 7

serious and substantial questions under the Supremacy

and Commerce Clauses of the Constitution of the Unitéd

States.

I.

It is beyond cavil that a state law which directly con-

flicts with federal legislation is rendered invalid under

the Supremacy Clause of the United States Constitution,

Article VI, Clause 2. Hines v. Davidowitz, 312 U.S. 52

(1941). Deciding whether a state statute directly con-

flicts with a federal statute and is therefore invalid, is

“essentially a two step process of first ascertaining the

construction of the two statutes and then determining the

constitutional question whether they are in conflict.”

Perez v. Campbell, 402 U.S. 637, 644 (1971).

The Railway Labor Act prescribes specific procedures

which require collective bargaining concerning proposed

changes in agreements affecting “working conditions”

which, concededly, include pay periods. Section 6 of the

Act (45 U.S.C. § 156) provides that:

“Sec. 6 [Notice of intended change in agreements

affecting rates of pay, rules, or working conditions. ]

Carriers and representatives of the employees shall

give at least thirty days’ written notice of an intended

change in agreements affecting rates of pay, rules, or

working conditions, and the time and place for the

beginning of conference between the representatives

of the parties interested in such intended changes

shall be agreed upon within ten days after the receipt

of said notice, and said time shall be within the thirty

days provided in the notice. In every case where

such notice of intended change has been given, or

conferences are being held with reference thereto,

or the services of the Mediation Board have been re-

8 Jurisdictional Statement

quested by either party, or said Board has proffered

its services, rates of pay, rules, or working conditions

shall not be altered by the carrier until the contro-

versy has been finally acted upon, as required by sec-

tion 155 of this title, by the Mediation Board, unless a

period of ten days has elapsed after termination of

conferences without request for or proffer of the

services of the Mediation Board.”

The provisions of the Railway Labor Act impose upon

the employer and its employees an obligation “to main-

tain the status quo while the ‘purposely long and drawn

out’ procedures of the Act are exhausted,” and apply to

the “actual, objective working conditions . . .” in effect

prior to the time the dispute arose and which are involved

in or related to that dispute whether embodied in a writ-

ten agreement or not. Detroit & Toledo Shoreline Rail-

road Company v. United Transportation Union, 396 U.S.

142, 143 (1969).

At the time Pennsylvania Act No. 43 was enacted,

there was an existing dispute between appellants and the

UTU over UTU’s request that the B&O and Western adopt

weekly pay periods. Consequently, Act No. 43, as now

construed by the State’s highest court, alters the status

quo which federal law requires the parties to maintain

and terminates collective bargaining upon a subject on

which the parties are federally required to bargain. The

Supreme Court of Pennsylvania has nevertheless held

there is no conflict between the Railway Labor Act and

Pennsylvania Act No. 43 of 1971 because intervention by

the State avoids alteration of the status quo by the

“parties”, thereby relieving employer and employee of

any possible conflicting obligations under state and federal

law. It is respectfully submitted that relieving the parties

of conflicting obligations, if Act No. 43 does so, does not

OP rR eT

Jurisdictional Statement g

eliminate the fundamental conflict between the two stat-

utes—that federal law requires both bargaining and the

maintenance of the status quo pending changes in work-

ing conditions, while Pennsylvania Law abolishes both.

The Pennsylvania Supreme Court concluded that

state intervention was distinguishable from the strike in-

ducing “self-help” by the parties which the status-quo

provisions of the Railway Labor Act were designed to

eliminate and that the Act’s primary purpose of preventing

strikes therefore «iid not conflict with Act 43. The Penn-

sylvania Supreme Court thus ignored the caveat of Perez

v. Campbell, supra, that the existence of conflict depends

upon the effects of the statutes in question and cannot nec-

essarily be determined solely by considerations of “pur-

pose.” As this Court recently stated in Amalgamated

Assoc. of Street R.W. Employees v. Lockridge, 403 U.S.

274, 287, 288 (1971).

“Conflict in technique can be fully as disruptive

to the system Congress erected as conflict in overt

policy. . . . in matters of dispute concerning labor

relations a simple recitation of the formally prescribed

rights and duties of the parties constitutes an inade-

quate description of the actual process for settlement

Congress has provided... . .

Thus, as observed by Judge Rogers in the opinion of

the majority of the Commonwealth Court of Pennsylvania

in this case (A32):

“Although the Act of 1971 is expressly subject

to the provisions of existing labor agreements, it can

and in this case does change a customary working

condition contrary to Section 6 of The Railway Labor

Act as interpreted by Detroit & Toledo Shoreline

Railway Company v. United Transportation Union,

supra. It substitutes for customary conditions, until

10 Jurisdictional Statement

an agreement is reached, the heavy and immediate

hand of state law for the collective bargaining process

which Congress has declared to be the best and only

means of changing such conditions. If we should

hold that Pennsylvania may regulate customary pay

periods without the agreement of the parties required

by The Railway Labor Act, the state could similarly

effect (and except for our supersedeas would have

here effected ) changes in existing practices so drastic

as to render subsequent bargaining thereon pointless.

Or, state regulations, could be instituted during bar-

gaining, arbitration or mediation under The Federal

Railway Labor Act so favorable to one of the parties

as to render it impossible realistically for the repre-

sentatives of that party to relinquish the advantage

so conferred at the bargaining table although the

other party is prepared for a work stoppage unless

a change is made.”

A majority of the Supreme Court of Pennsylvania

were consoled that Act 43 “defers to any ‘applicable labor

agreement’, so that it can never be applied to prevent the

contracting parties from carrying out their agreement upon

a subject matter as to which federal law directs them

to bargain.” However, as Judge Rogers observed in the

Commonwealth Court, the Act’s deference to the provi-

sions of existing labor agreements is more of form than

of substance (A33).

“The Act of 1971, P.L. 221 is artful in its ex-

pressed subservience to hiring contracts and labor

agreements and we would have more difficulty finding

interference with Federal requirements had the Act

expressly exempted customary practices or had the

Secretary construed the Act as intending the exemp-

pms

SO re

Jurisdictional Statement ll

tion of customary practices. We do not quarrel with

the Secretary's construction, for if the Act is not in-

tended to act on customary pay periods different from

the weekly requirement it stipulates, there is nothing

for it to act upon, unless there is somewhere in Penn-

sylvania a railroad enterprise with no labor agree-

ment. The result is that the appellants have been

ordered instantly to change a working condition other

than by the procedures of The Railway Labor Act.”

The decision of the Pennsylvania Supreme Court thus

stands squarely opposed to this Court’s holding in Cali-

fornia v. Taylor, 353 U.S. 553 (1957), that a state statute

denying collective bargaining rights to employees of a

state owned railroad was superseded by the Railway Labor

Act.

Il.

Just as a state law may be invalid because it directly

conflicts with federal iegislation, it is equally clear that

state regulation must yield in any field in which a federal

enactment has undertaken exclusive regulation. Hines v.

Davidowitz, supra. “The test of whether both federal

and state regulations may operate, or the state regulation

must give way, is whether both regulations can be en-

forced without impairing the federal superintendence of

the field. . . .” Florida Lime & Avocado Growers v.

Paul, 373 U.S. 132, at 142 (1963).

The Pennsylvania Supreme Court correctly recog-

nized that “because the Railway Labor Act is clearly a

comprehensive scheme of regulation, exclusive within its

own province, it is crucial to ascertain the boundaries of

that province.” However, the Court then proceeded in

12 Jurisdictional Statement

error to equate the issue before it with the very different

question whether state safety and health regulation may

coexist with the Railway Labor Act. As noted by Justice

Pomeroy in the Dissenting Opinion in the Supreme Court

of Pennsylvania (n. 9 A22-23):

“The reliance of the majority opinion, ante, page

10, o» Terminal Railroad Association v. Brotherhood

of Railroad Trainmen, supra, is misplaced. The Su-

preme Court there distinguished between ‘differences

that threaten continuity of work’ and those which

involve ‘conditions that threaten the health or safety

of workers.’ Id., at 6, 87 L. Ed. at 577. The clear

implication is that disputes which do not involve

health or safety must be resolved through the proc-

esses of the Railway Labor Act. This reading of

Terminal Railroad Association is borne out by the

reference to that case in California v. Taylor, supra,

at 560, n.8, 1 L. Ed. 2d at 1039, n.8. After citing

cases upholding the supremacy of federal statutes

relating to railroads in interstate commerce, the Court

cites Terminal Railroad Association for the proposi-

tion that ‘the Railway Labor Act did not preclude a

State from establishing minimum health and safety

regulations in the interest of railway employees. That

case did not concern a conflict between federally pro-

tected collective bargaining and inconsistent State

laws. The decision has thus been limited to the facts

there involved; the unnecessarily broad language rela-

tive to preemption used by Mr. Justice Jackson in his

opinion and relied on by the majority here was dic-

tum.”

Having erroneously relied upon the Terminal Rail-

road case, the Supreme Court of Pennsylvania failed to

consider adequately the exclusive nature of the Railway

ee ee

Jurisdictional Statement 13

Labor Act in areas other than safety and health; nor was

the majority consistent in its view of the scope of the Act.

At one point the majority noted that “the Railway Labor

Act is clearly a comprehensive scheme of regulation, ex-

clusive within its own province,” yet at another, the Court

stated “there is here no pervasive regulation of the field.”

In this regard, Justice Pomeroy’s dissent bears quoting at

length (A19-A21):

“The large field in which this case lies is that of

interstate railroad transportation. The pervasiveness

of the Congressional interest in and regulation of rail-

roads need not be elaborated upon. (Footnote

omitted ) ‘National rather than local control of inter-

state railroad transportation has long been the policy

of Congress. Chicago v. Atchinson, Topeka and

Sante Fe Railway Co., 357 U.S. 77, 87, 2 L. Ed. 2d

1174 (1958). Turning specifically to the labor aspect

of interstate railroad transportation, the relevant fed-

eral law is, of course, the Railway Labor Act.

Adopted in 1926 that Act is ‘essentially an instrument

of industry-wide’ government. . . . Like the Safety

Appliance Act, the Railway Labor Act is ‘all-embrac-

ing in scope and national in its purpose, which is as

capable of being obstructed by a State as by individ-

ual action. United States v. California, 297 U.S. 175,

186, 80 L. Ed. 567, 573.’ California v. Taylor, 353

U.S. 553, 565-566, 1 L. Ed. 2d 1034, 1042 (1957).

Its purpose is ‘to encourage collective bargaining by

railroads and their employees in order to prevent, if

possible, wasteful strikes and interruptions of inter-

state commerce. . . .’ The Detroit and Toledo

Shoreline Railroad Company v. United Transportation

Union, 396 U.S. 142, 148, 24 L. Ed. 2d 325, 331

(1969). . . . There can be no doubt that a state-

14 Jurisdictional Statement

imposed working condition removes that condition

from the scope of collective bargaining, which, as

above stated, is central to the federal scheme. The

bargaining freedom of at least one of the parties is

thereby necessarily restricted. Adoption by states of

statutes imposing such conditions also inevitably

change the status quo, which under the Act is to be

maintained while bargaining, and the other steps in

the federal machinery, is carried out.”

In United Airlines, Inc. v. Industrial Welfare Com-

mission, 28 Cal. Reporter 238 (1963) it was held that the

Railway Labor Act had preempted state regulation of

the working conditions of airline employees in a case in-

volving a state regulation prohibiting employee contribu-

tions to the cost of uniforms where, by labor contract, the

employees were required to share the cost of uniforms

with the employer. Significantly, the Pennsylvania Su-

preme Court distinguished United from the instant case on

the ground that the state law there conflicted with a sub-

stantive provision of the applicable labor agreement while

the conflict in the instant case involves a customary work-

ing condition not embodied in the written labor contracts

between the parties. This purported basis for distinction

only heightens the conflict between Pennsylvania Act No.

43 and the Railway Labor Act in view of this Court’s deci-

sion in Detroit and Toledo Shoreline Railroad Company v.

United Transportation Union, supra, holding there is no

difference under Section 6 of the Railway Labor Act be-

tween working conditions provided for by contraci and

those actual unwritten working conditions which exist by

custom. Pennsylvania Act 43 thus cannot be enforced

without impairing the superintendence of the Railway

Labor Act in the field of regulating the manner of chang-

ing working conditions on interstate Railroads.

Jurisdictional Statement 15

CONCLUSION.

For the foregoing reasons, probable jurisdiction

should be noted.

Respectfully submitted,

NORMAN R. BRADLEY,

Attorney for Appellant.

Of Counsel:

SAUL, Ew1nc, REMICK

& SAUL.

SC

Appendix.

IN THE

SUPREME COURT OF PENNSYLVANIA

WESTERN DisTRICT.

No. 165 March T. 1974

No. 562 ALLocaTur DOCKET.

BALTIMORE AND OHIO RAILROAD CO. AND

WESTERN MARYLAND RAILWAY COMPANY,

Appellants,

vb.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF LABOR AND INDUSTRY,

Appellee,

AND

UNITED TRANSPORTATION UNION,

Intervening Appellee.

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES.

Notice is hereby given that the Baltimore and Ohio

Railroad Co. and Western Maryland Railway Company

hereby appeal to the Supreme Court of the United States

from the final Order of the Supreme Court of Pennsylvania

entered in this action on March 18, 1975, reversing an

Order of the Commonwealth Court of Pennsylvania dated

February 11, 1974.

(Al)

eee EE EE

A2 Notice of Appeal

This appeal is taken pursuant to 28 U. S. C. § 1257(2).

/s/ NorMAN R. BRADLEY,

Norman R. Bradley,

3800 Centre Square West,

1500 Market Street,

Philadelphia, Pa. 19102

Attorney for Appellant.

ID No. 02669

Filed: June 6, 1975.

Notice of Appeal A3

CERTIFICATE OF SERVICE.

I hereby certify I have this date served the attached

Notice of Appeal upon all parties of record, by mailing a

copy thereof, properly addressed with first-class postage

prepaid.

/s/ NorRMAN R. BRADLEY,

Norman R. Bradley,

Attorney for Appellants,

Baltimore & Ohio Railroad Co.

and Western Maryland Railway

Company.

June 4, 1975.

Ad Opinion (Pa. Sup. Ct.)

IN THE

SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT.

No. 165 Marcu Term, 1974.

BALTIMORE & OHIO RAILROAD CO., anp

WESTERN MARYLAND RAILWAY COMPANY,

v.

COMMONWEALTH OF PENNSYLVANIA, DEPART-

MENT OF LABOR AND INDUSTRY, ann UNITED

TRANSPORTATION UNION,

Appellants.

APPEAL FroM ORDER OF COMMONWEALTH COURT OF

PENNSYLVANIA OF FEBRUARY 11, 1974

AT No. 625 C.D. 1973.

OPINION OF THE COURT.

Roserts, J. Fitep: Marcu 18, 1975.

As a result of an administrative proceeding com-

menced by appellant United Transportation Union, ap-

pellee railroads were directed to adopt weekly pay

periods for certain of their employees, as required by

Pennsylvania Act No. 43 of 1971.’ The railroads appealed

this order to the Commonwealth Court, urging that the

1. “Unless otherwise stipulated in the contract of hiring or in

the applicable labor agreement, every common carrier by rail-

road 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 employee,

a ee ae

Opinion (Pa. Sup. Ct.) A5

Act was invalid under the Supremacy Clause of the United

States Constitution because it conflicted with the federal

Railway Labor Act? and because it invaded a field totally

occupied and therefore preempted by the Railway Labor

Act. They also argued that Act No. 43 discriminated

against railroads without any rational basis for distinction

from other businesses, in violation of the Equal Protection

Clause of the Fourteenth Amendment and article III, sec-

tion 32 of the Pennsylvania Constitution. The Common-

wealth Court, two judges dissenting, held that Act No.

43 conflicted with the Railway Labor Act and was there-

fore unconstitutional.‘ We granted leave to appeal in

order to consider the important questions involved. We

reverse.

Prior to 1971, Pennsylvania law required railroads to

pay their employees not less often than semi-monthly,®

and appellees utilized bi-weekly pay periods. Despite the

1. (Cont’d.)

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 derived from basic

pro rata rates of pay pursuant to labor agreement, and shall

not include incentives, bonuses, and other similar types of

fringe payments.”

Act of July 14, 1971, P.L. 221, No. 43, 43 P.S. § 255.1 (Supp. 1974).

2. 45 U.S.C. § 151 et seq. (1970).

3. Reference was also made to the Commerce Clause, but this

was clearly intended only as the source of the power exercised by

Congress in enacting the Railway Labor Act. No argument is

made that, absent the Railway Labor Act, the Pennsylvania statute

would impose an undue burden upon interstate commerce.

4. Baltimore & O. R.R. v. Commonwealth, 12 Pa. Common-

wealth Ct. 292, 314 A.2d 862 (1974).

5. Appellate Court Jurisdiction Act of 1970, Act of July 31,

1970, P.L. 678, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp. 1974).

6. As in the present statute, this requirement was inapplicable

if the timing of wage payments is “otherwise stipulated in the con-

tract of hiring or in the applicable labor page mpl Act of April

24, 1913, P.L. 114, §1 (repealed 1971). See also note 1 supra.

A6 Opinion (Pa. Sup. Ct.)

passage of Act No. 43, appellees continued to utilize bi-

weekly pay periods’ and appellant union filed adminis-

trative complaints with the Department of Labor and

Industry, contending that, as to certain of appellees’ em-

ployees, this practice was in violation of the Act. The

Department held an administrative hearing and found

that some of appellees’ employees were covered by no

“contract of hiring or . . . applicable labor agreement”

providing for other than weekly payment of wages.* Ap-

pellees were ordered to pay “those employees . . . in

accordance with [the] Act.” The appeal to the Common-

wealth Court ensued.

Appellees’ principal contention, and the basis of the

Commonwealth Court’s decision, is federal preemption.

Clearly, state law which directly conflicts with federal

legislation is invalid under the Supremacy Clause. Perez

v. Campbell, 402 U.S. 637, 91 S. Ct. 1704 (1971). Fur-

thermore, even if there is no direct conflict, the state law

may be invalid if it infringes where Congress has under-

taken such comprehensive regulation as to evidence an

intent to exclude all state legislation. Pennsylvania v.

Nelson, 350 U.S. 497, 76 S. Ct. 477 (1956) ( federal statute

preempts state statute prohibiting sedition); Hines v.

Davidowitz, 312 U.S. 52, 61 S. Ct. 399 (1941) (federal

alien registration statute occupies the field and precludes

operation of state laws on same subject); Bessemer &

L.E.R.R. v. Pennsylvania Public Utilities Commission, 430

Pa. 339, 243 A.2d 358. cert. denied, 393 U.S. 959, 89 S. Ct.

395 (1968) (federal regulation of railroad safety pre-

empts state regulation requiring particular methods of

7. The union represents in its brief that all other railroads in

the Commonwealth voluntarily complied with Act. No. 43.

8. This finding is not contested on appeal. The employees in

ne are covered by a collective bargaining agreement, but it

oes not deal with frequency of payment.

Opinion (Pa. Sup. Ct.) A7

preventing rear-end collisions). Appellees contend that

Act No. 43 is defective in both respects.

The method for resolving the question of conflict is

shown by Perez v. Campbell, supra:

“Deciding whether a state statute is in conflict with a

federal statute and hence invalid under the Suprem-

acy Clause is essentially a two-step process of first

ascertaining the construction of the two statutes and

then determining the constitutional question whether

they are in conflict.”

Id. at 644, 91 S. Ct. at 1708.

The first step of this process presents no difficulty.

The objectives and operation of the Railway Labor Act

were summarized in Terminal Railroad Association v.

Brotherhood of Railroad Trainmen, 318 U.S. 1, 63 S. Ct.

420 (1943), itself a preemption case:

“The purpose of this Act is declared to be to provide

‘for the prompt and orderly settlement of all disputes

concerning rates of pay, rules or working conditions’;

and ‘for the prompt and orderly settlement of all dis-

putes growing out of grievances or out of the

interpretation or application of agreements covering

rates of pay, rules, or working conditions.’ It places

upon carriers and employees the duty of exerting

every reasonable effort to settle these disputes by

agreement, and prohibits the carrier from altering

agreed rates of pay, rules or working conditions except

in the manner provided by the agreement or by the

Act itself. Machinery is set up for the adjustment,

mediation, and arbitration of disputes which the par-

ties do not succeed in settling among themselves.”

Id. at 5, 63 S. Ct. at 422 (footnotes omitted ).

nS Te a a ea A ee eee ae

A8 Opinion (Pa. Sup. Ct.)

The purpose of Act No. 43 is apparent on its face. It

seeks to insure prompt payment of the wages earned by

railroad employees where no provision on the timing of

payment is included in an applicable collective bargaining

agreement or “contract of hire.”

Passing to the second step of the conflict analysis, the

test to be applied is clear. Act No. 43 is invalid if it stands

“as an cbstacle to the accomplishment and execution of

the full purpose and objectives of Congress.” Hines v.

Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404 (1941);

Perez v. Campbell, 402 U.S. 637, 649, 91 S. Ct. 1704, 1711

(1971).

Clearly there is here no conflict between the purposes

of the respective statutes. Compare Perez v. Campbell,

supra; ° California v. Taylor, 353 U.S. 553, 77 S. Ct. 1037

(1957) (state law purporting to forbid collective bargain-

ing by employees of publicly owned railroad engaged in

interstate commerce held invalid). Further, Act No. 43

expressly defers to any “applicable labor agreement,” so it

can never “be applied to prevent the contracting parties

from carrying out theiragreement upon a subject matter as

to which federal law directs them to bargain.” Local 24,

Teamsters v. Oliver, 358 U.S. 283, 295, 79 S. Ct. 297, 304

(1959); see California v. Taylor, supra, at 561, 77 S. Ct. at

1042 (dictum); Railway Employees Department v. Han-

son, 351 U.S. 225, 232, 76 S. Ct. 714, 718 (1956) (dictum).

The manner in which appellees construct the pur-

ported conflict is more complex. The Railway Labor Act

“imposes an obligation upon the parties to a railroad labor

dispute to maintain the status quo while the ‘purposely

long and drawn out’ procedures of the Act are exhausted.”

9. “[A] state statute that protects judgment creditors from

‘financially irresponsible persons’ is in conflict with a federal

statute that gives discharged debtors a new start ‘unhampered

by the pressure and discouragement of preexisting debt.”

Perez v. Campbell, 402 U.S. 637, 649, 91 S. Ct. 1704, 1711 (1971).

Opinion (Pa. Sup. Ct.) A9

Detroit & T.S.L. R.R. v. United Transportation Union, 396

U.S. 142, 143, 90 S. Ct. 294, 295 (1969) (footnote omitted ).

This not only requires compliance with any collective bar-

gaining agreement between the parties, but the preserva-

tion of the “actual objective working conditions .

which were in effect prior to the time the dispute arose and

which are involved in or related to that dispute.” Id. at

153, 90 S. Ct. at 301 (footnote omitted). At the time Act

No. 43 was enacted, there was an existing dispute between

appellees and the union over the union’s request to adopt

weekly pay periods. Consequently, appellees argue, Act

No. 43 commands them to alter the status quo which they

are compelled by federal law to maintain.

While ptausible, this argument cannot withstand anal-

ysis. To begin with, appellees are not subject to conflicting

legal obligation (to maintain and to change the status

quo). Appellees would not violate the Railway Labor Act

by complying with Act No. 43 because that compliance is

precisely what the union seeks.

Moreover, appellees’ interpretation bears little rela-

tion to “the Act’s primary objective—the prevention of

strikes.” Id. at 154, 90 S. Ct. at 301. The Railway Labor

Act does not prohibit changes in the status quo as such,

but only unilateral changes by one of the parties, which

would provoke retaliation by the other. As the Supreme

Court said in Detroit & T.S.L.R.R. v. United Transporta-

tion Union, supra:

“If the railroad is free to take advantage of the agree-

ment’s silence and resort to self-help, the union can-

not be expected to hold back its own economic

weapons, including the strike. Only if both sides are

equally restrained can the Act’s remedies work ef-

fectively.”

Id. at 155, 90 S. Ct. at 302 (footnote omitted).

Al0 Opinion (Pa. Sup. Ct.)

This danger is not present where, as here, the change

is mandated by state law rather than adopted unilaterally

by one of the parties. There is no provocative exercise

of self-help, and before any resort is made to self-help, the

procedures of the Act must be exhausted. Consequently,

we conclude that there is no direct conflict between Act

No. 43 and the Railway Labor Act.

The question remains whether the Railway Labor

Act has undertaken such a comprehensive regulation of

the field of railway labor as to evidence an intent to ex-

clude all state legislation, without regard to conflict. See

Pennsylvania v. Nelson, 350 U.S. 497, 76 S. Ct. 477

(1956); Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399

(1941); Bessemer & L.E.R.R. v. Pennsylvania Public

Utilities Commission, 430 Pa. 339, 243 A.2d 358, cert.

denied, 393 U.S. 959, 89 S. Ct. 395 (1968). “The test of

whether both federal and state regulations may operate,

or the state regulation must give way, is whether both

regulations can be enforced without impairing the federal

superintendence of the field . . . .” Florida Lime &

Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S. Ct.

1210, 1217 (1963).

Because the Railway Labor Act is clearly a compre-

hensive scheme of regulation, exclusive within its own

province, it is crucial to ascertain the boundaries of that

province. The Supreme Court has delineated the field

covered by the Railway Labor Act in many cases involv-

ing preemption questions.

“(T]he Railway Labor Act * * * does not undertake

governmental regulation of wages, hours, or working

conditions. Instead it seeks to provide a means by

which agreement may be reached with respect to

them. The national interest . . . is not primarily

in the working conditions as such. So far as the Act

Opinion (Pa. Sup. Ct.) All

itself is concerned these conditions may be as bad

as the employees will tolerate or be made as good as

they can bargain for. The Act does not fix and does

not authorize anyone to fix generally applicable stand-

ards for working conditions. The federal interest

that is fostered is to see that disagreement about con-

ditions does not reach the point of interfering with

interstate commerce. ”

Brotherhood of Locomotive Engineers v. Baltimore &

O.R.R., 372 U.S. 284, 289-90, 83 S. Ct. 691, 694 (1963).

The principle that the Railway Labor Act does not

preclude a state from regulating the working conditions

of railway employees was established in the first case to

consider the preemptive effect of that Act, Terminal Rail-

road Association v. Brotherhood of Railroad Trainmen, 318

U.S. 1, 63 S. Ct. 420 (1943). That case involved a state

requirement that a railroad equip its trains with cabooses

on designated routes. That requirement, like this one,

was the subject of a preexisting dispute between the rail-

road and its employees, the existing contract calling for

cabooses on some trains, but not those subject to the state

order. The Court nonetheless rejected the contention that

the Railway Labor Act precluded the operation of the

state regulation.

Justice Jackson, writing for a unanimous Court, first

observed that the procedures of the Railway Labor Act

operate “to compose differences that threaten continuity

of work, not to remove conditions that threaten the health

or safety of workers.” Id. at 6, 63 S. Ct. at 423. He con-

tinued:

“State laws have long regulated a great variety of

conditions in transportation and industry, such as

sanitary facilities and conditions, safety devices and

Al2 Opinion (Pa. Sup. Ct.)

protection, and innumerable others. Any of these

matters might, we suppose, be the subject of a de-

mand by workmen for better protection and upon re-

fusal might be the subject of a labor dispute which

would have such effect on interstate commerce that

federal agencies might be invoked to deal with some

phase of it. But we would hardly be expected to

hold that the price of the federal effort to protect the

peace and continuity of commerce has been to strike

down state sanitary codes, health regulations, factory

inspections, and safety provisions for industry and

transportation. . . . We hold that the enactment by

Congress of the Railway Labor Act was not a preemp-

tion of the field of regulating working conditions

themselves and did not preclude the State of Illinois

from making the order in question.”

Id. at 6-7, 63 S. Ct. at 423.

Appellees urge, however, that the power of the state

to regulate working conditions is limited to matters of

health and safety. In support of this proposition they

cite United Air Lines, Inc. v. Industrial Welfare Commis-

sion, 211 Cal. App. 2d 729, 28 Cal. Rptr. 238 (1963).

That case involved a state regulation prohibiting an em-

ployer in the transportation industry from requiring an

employee to contribute to the cost of purchase or main-

tenance of uniforms. The airline challenged the power

ot the state to apply this regulation to two classes of its

employees: stewardesses and ticket agents. The steward-

esses were covered by a collective bargaining agreement

providing for a division of the cost of uniforms between

employer and employee. The ticket agents were not cov-

ered by any collective bargaining agreement. As to the

ticket agents, the court summarily rejected the preemption

Opinion (Pa. Sup. Ct.) Al3

argument, holding that “the inhibitions of the Railway

Labor Act apply only where there is such an agreement.”

Id. at —, 28 Cal. Rptr. at 249.

The key to the analysis which led the United Air

Lines court to conclude that the state law was preempted

as it applied to stewardesses was Local 24, Teamsters v.

Oliver, 358 U.S. 283, 79 S. Ct. 297 (1959). In that case,

the Supreme Court held that Ohio antitrust law could not

preclude the operation of a collective bargaining agree-

ment providing for minimum rentals on owner-operated

trucks. The basis for this holding was the conclusion that,

in the type of case before the Court, state law could not

“be applied to prevent the contracting parties from carry-

ing out their agreement upon a subject matter as to which

federal law directs them to bargain.” Id. at 295, 79 S. Ct.

at 304. The Court then limited its holding by noting, “We

have not here a case of a collective bargaining agreement

in conflict with a local health or safety regulation. . . .”

Id. at 297, 79 S. Ct. at 305. |

Carefully read, the United Air Lines case is nothing

more than a simple application of Oliver. A collective bar-

gaining agreement existed and conflicted with the state

regulation. Since the state regulation involved neither

health nor safety, it could not prevail over a collective

bargaining agreement having “the imprimatur of federal

law.” Railway Employees’ Department v. Hanson, 351

U.S. 225, 232, 76 S. Ct. 714, 718 (1956). United Air Lines

is therefore inapposite to this case, for there is and can be

no conflict between Act No. 43 and any “applicable labor

agreement.”

There is no support in the decisions of the Supreme

Court for appellees’ contention that, even in the absence

of conflict with a collective bargaining agreement, the

states are precluded from non-health related regulation of

Al4 Opinion (Pa. Sup. Ct.)

the working conditions of railroad employees. Indeed,

the contrary result follows from the general principles out-

lined above, particularly in the light of the Supreme

Court’s admonition that,

“[T]he principle to be derived from our decisions

is that federal regulation of a field of commerce should

not be deemed preemptive of state regulatory power

in the absence of persuasive reasons—either that the

nature of the regulated subject matter permits no

other conclusions, or that the Congress has unmis-

takably so ordained.”

Florida Lime ¢- Avocado Growers v. Paul, 372 U.S. 132,

142, 83 S. Ct. 1210, 1217 (1963).

As the Supreme Court has noted, the purpose of the

Railway Labor Act is “to compose differences that threaten

continuity of work, not to remove conditions that threaten

the health or safety of workers.” Terminal Railroad Asso-

ciation v. Brotherhood of Railroad Trainmen, supra, at 6,

63 S. Ct. at 423. While the issue was not then before the

Court, the reasoning applies equally well to threats to

employee welfare not directly involving health or safety.

Thus, there is here no pervasive regulation of the field

in which Act No. 43 operates, such as this Court found in

Bessemer & L.E.R.R. v. Pennsylvania Public Utilities

Commission, 430 Pa. 339, 243 A.2d 358, cert. denied, 393

U.S. 959, 89 S. Ct. 395 (1968) (railroad safety). Neither

does Act No. 43 “ ‘touch a field in which the federal inter-

est is so dominant that the federal system [must] be as-

sumed to preclude enforcement of state laws on the same

subject.” Pennsylvania v. Nelson, 350 U.S. 497, 504, 76

S. Ct. 477, 481 (1956) (sedition against federal govern-

ment); see Hines v. Davidowitz, 312 U.S. 52, 62-68, 61 S.

Ct. 399, 401-05 (1941) (alien registration). Finally, there

Opinion (Pa. Sup. Ct.) Al5

is no unmistakable Congressional command to exclude

state regulation of labor conditions affecting railroad em-

ployees. Consequently, we conclude that Act No. 43 is

not preempted. See Florida Lime & Avocado Growers v.

Paul, supra.

While we have rejected the preemption reasoning on

which the Commonwealth Court rested its ho'ding, we

must also consider appellee’s contentions under the Equal

Protection Clause of the federal Constitution and article

III, section 32 of the Pennsylvania Constitution.’ These

issues may be considered together, for the content of the

two provisions is not significantly different. Bargain City

U.S.A. v. Dilworth, 407 Pa. 129, 131-33, 179 A.2d 439,

441-42 (1962); compare Milk Control Commission v.

Battista, 413 Pa. 652, 198 A.2d 840, appeal dismissed, 379

U.S. 3, 85 S. Ct. 75 (1964), with Williamson v. Lee Opti-

cal, Inc., 348 U.S. 483, 75 S. Ct. 461 (1955); see also,

Tosto v. Pennsylvania Nursing Home Loan Agency, — Pa.

—,—, —A.2d —, — (1975).

Neither the Equal Protection Clause nor article III,

section 32’s prohibition of special laws forbids the state to

draw distinctions. Rather, both require only that the dis-

tinctions drawn have some rational relation to a proper

state purpose.’ Tosto v. Pennsylvania Nursing Home

10. It is well settled that, even though an order is based on

erroneous reasoning, this Court may affirm if the result is correct

for any reason. Estate of Prynn, Pa. 192, 197 n.9, 315 A.2d

965, 267 n.9 ( 1973); Concord Ragen Appeal, 439 Pa. 466, 469,

268 A.2d 765, 708) (1970); Ridley Township v. Pronesti, 431 Pa.

34, 37, 244 Ad mn 726-21 (1968 ); Taylor v. Churchill V.CC.,

425 Pa. 266, 228 A.2d 768 (1967); Sherwood v. Elgart, 383 Pa.

110, bog A.2d 899 (1955).

1. The test is more stringent if the basis of the classification

cA A or if it infringes upon a “fundamental right.” See gen-

- San dstente I School Dist. v. Rodriguez, 411

US ot 17-44, 93 S. Ct. 1278, 1288-1302 (1973). No claim is made

that either a “suspect classification” or 2 “fundamental right” is

involved in this case.

Al6 Opinion (Pa. Sup. Ct.)

Loan Agency, supra; Johnson v. Pennsylvania Housing

Finance Agency, 453 Pa. 324, 347, 309 A.2d 528, 538

(1973); Williamson v. Lee Optical, Inc., supra; Eisenstadt

v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972).

Appellees urge most forcefully that there is no basis

for singling out railroads from the class of common carriers

as the subject of this regulation. But the Legislature may

have found differences in the structure of the business or

labor relations environment between the railroad industry

and other common carriers. In particular it might have

found differences in the normal pattern of employment-

related travel creating an unusual need for prompt pay-

ment of railroad workers. Alternatively, it might have

concluded that in other branches of industry, either weekly

payment or agreements for less frequent payment were so

widespread that the statute would have no effect. Yet

again it might have noted the current financial instability

of railroads and concluded that this statute was necessary

to minimize the exposure of railroad employees to loss in

the event of the insolvency of their employer. Any of

these conclusions would furnish a rational basis for Act No.

43. See McGowan v. Maryland, 366 U.S. 420, 426, 81 S.

Ct. 1101, 1105 (1961); Williamson v. Lee Optical, Inc.,

348 U.S. 483, 489, 75 S. Ct. 461, 465 (1955); Note, De-

velopments in the Law—Equal Protection, 82 Harv. L.

Rev. 1065, 1085 (1969).

We conclude that Act No. 43 neither denies appellees

the equal protection of the laws nor is a special law pro-

hibited by article III, section 32 of the Pennsylvania Con-

stitution.

Order of the Commonwealth Court setting aside the

order of the Secretary of Labor and Industry reversed.

Mr. Justice Pomeroy filed a dissenting opinion in

which Mr. Cuter Justice JONEs joins.

Dissenting Opinion (Pa. Sup. Ct.) Al7

DISSENTING OPINION.

Pomeroy, J., Fritep: Marcu 18, 1975.

With respect, I am unable to agree with the Court

that the subject matter of Act No. 43* has not been pre-

empted by the federal Railway Labor Act.’ In my opin-

ion, the federal government has occupied the field covered

by the Pennsylvania statute, and the latter must, under

the Supremacy Clause,’ give way.

There is no disagreement as to the general principles

involved. As Mr. Justice Roberts said, in speaking for

this Court in Bessemer & L.E.R. Co. v. Pennsylvania

Public Utility Commission, 430 Pa. 339, 243 A.2d 358

(1968) cert. denied, 393 U.S. 959, 21 L. Ed. 2d 373 (1968),

reh. denied, 393 U.S. 1045, 21 L. Ed. 276 (1969):

“It is certainly too late in the development of

constitutional law to say that Congress may not

preempt an entire field by the passage of a broad

based statute, even though the regulations passed

pursuant to that statute do not in fact cover every

possible situation. Moreover, once such a statute is

passed, and the intention to preempt state law in

the area becomes manifest, the various states may not

pass legislation even supplemental to the federal

rules, so long as the area affected by these supple-

mental acts coincides with the federal bailiwick.”

(Emphasis added.) 430 Pa. at 346.

The Court spoke in similar vein through Mr. Justice Cohen

in Mamula v. United Steelworkers, 409 Pa. 175, 185 A.2d

595 (1962):

1. Act of July 14, 1971, P.L. 221, 43 P.S. § 255.1 (Supp. 1974).

2. Act of May 20, 1926, Ch. 347, § 1, 44 Stat. 577, as amended,

45 U.S.C. § 151 et seq. (1971).

3. Constitution of the United States, Art. 6 clause 2.

Als Dissenting Opinion (Pa. Sup. Ct.)

“Where the Congress of the United States enacts a

comprehensive statute which is intended to occupy

the field, the Supremacy Clause of the United States

Constitution requires that the state legislature and

judiciary defer to the superior command of Congress.

This doctrine is particularly applicable in the area

of labor law which is covered in detail by numerous

comprehensive federal statutes.” 409 Pa. at 178.

The problem, of course, is to determine whether a

particular Congressional enactment has occupied a par-

ticular field so completely as to indicate a clear intention

to preclude state regulation. See City of Chicago v. At-

chison Topeka and Sante Fe Railway Co., 357 U.S. 77,

2 L. Ed. 2d 1174 (1958). Recognizing the perplexities

that inhere in making such a determination, I am never-

theless unable to subscribe to the Court’s holding that

Congress has left the states free to legislate in the area

of rates of pay, rules and working conditions of employees

of railroads involved in interstate commerce. Under

today’s decision, the legislature of any state could by

statute or authorized regulation prescribe a work condition

for railway labor, provided only that the subject matter

of the condition was not already a matter of agreement

between a railroad and its employees. This cannot have

been the intent of the Congress.

Guides to Congressional intent to preempt an area

previously occupied by the states include the pervasive-

ness of the scheme of federal vegulation, the dominance

of the federal interest in the field, and possible incon-

sistency of the state policy with the objective of the federal

statute.‘ All three criteria point to preemption in the

present case.

4. The Supreme Court's statement of these indicia of congres-

sional intent was as follows:

“The scheme of federal regulation may be so pervasive as to

make reasonable the inference that Congress left no room for

Dissenting Opinion (Pa. Sup. Ct.) Al9

The large field in which this case lies is that of inter-

state railroad transportation. The pervasiveness of the

Congressional interest in and regulation of railroads need

not be elaborated upon. “National rather than local con-

trol of interstate railroad transportation has long been the

policy of Congress.” Chicago v. Atchison Topeka & Santa

Fe Railway Co., 357 U.S. 77, 87, 2 L. Ed. 2d 1174 (1958).

Turning specifically to the labor aspect of interstate rail-

road transportation, the relevant federal law is, of course,

the Railway Labor Act. Adopted in 1926, that Act is

“essentially an instrument of industry-wide government.

. . Like the Safety Appliance Act, the Railway Labor

Act is ‘all-embracing in scope and national in its purpose,

which is as capable of being obstructed by a State as by

individual action. United States v. California, 297 U.S.

175, 186, 80 L. Ed. 567, 573.’” California v. Taylor, 353

U.S. 553, 565-566, 1 L. Ed. 2d 1034, 1042 (1957). Its

purpose is “to encourage collective bargaining by rail-

roads and their employees in order to prevent, if possible,

wasteful strikes and interruptions of interstate commerce.

_..” The Detroit & Toledo Shore Line Railroad Com-

pany v. United Transportation Union, 396 U.S. 142, 148,

24 L. Ed. 2d 325, 331 (1969). “To this end, the Act

4. (Cont’d.)

the States to supplement it. [citations omitted]. Of the Act

of Congress may touch a field in which the federal interest is

so dominant that the federal system will be assumed to pre-

clude enforcement of state laws on the same subject. [citation

omitted]. Likewise, the object sought to be obtained by the

federal law and the character of obligations imposed by it may

reveal the same purpose. [citations omitted]. Or the state

policy may produce a result inconsistent with the objective of

the federal statute.” Rice v. Sante Fe Elevator Corp., 331

es 218, 230, 91 L. Ed. 1447, 1459 (1947). (Emphasis

a ).

5. See generally Title 45 of the United States Code and the

many statutes embraced therein governing railroads in interstate

commerce.

Se eee eee

A20 Dissenting Opinion (Pa. Sup. Ct.)

established a rather elaborate machinery for negotiation,

mediation, voluntary arbitration, and conciliation . . . .

It imposed upon the parties an obligation to make every

reasonable effort to negotiate a settlement and to refrain

from altering the status quo by resorting to self-help while

the Act’s remedies were being exhausted . . . . A final

and crucial aspect of the Act was the power given to the

parties and to representatives of the public to make the

exhaustion of the Act’s remedies an almost interminable

process. As we noted in Railway Clerks v. Florida E.C.R.

Co., 384 U.S. 238, 246, 16 L. Ed. 2d 501, 507 (1966), ‘The

procedures of the Act are purposely long drawn out, based

on the hope that reason and practical considerations will

provide in time an agreement that resolves the dispute.’ ”

The Detroit & Toledo Shore Line Railroad Company v.

United Transportation Union, supra, at 148-49, 24 L. Ed.

2d at 332. See also Railroad Trainmen v. Terminal Co.,

394 U.S. 369, 377-380, 22 L. Ed. 2d 344, 354-55 (1969).°

Central to the process of dispute resolution created

by the Railway Labor Act are collective bargaining relat-

ing to rates of pay, rules and working conditions, and

maintenance of the status quo during negotiations and

thereafter during the stages of mediation mandated by

6. The broad purposes of the Railway Labor Act as set forth

by Congress in § 2 of the Act, 45 U.S.C. ; 15la are as follows:

“The purposes of the chapter are: (1) To avoid any interrup-

tion to commerce or to the operation of any carrier engaged

therein; (2) to forbid any limitation upon freedom of associa-

tion among employees of any denial, as a condition of em-

ployment or otherwise, of the right of employees to join a labor

organization; (3) to provide for the complete independence

of carriers and of employees in the matter of self-organization

to carry out the purposes of this chapter; (4) to provide for

the prompt and orderly settlement rs all — concerning

rates of pay, rules, or working conditions; (5) to provide for

the prompt and orderly settlement of all disputes growing out

of grievances or out of the interpretation or application of

agreements covering rates of pay, rules, or working conditions.”

45 U.S.C. § 15la (1971).

Dissenting Opinion (Pa. Sup. Ct.) A2l

the Act.’ Shore Line Railway Co. v. Transportation

Union, supra, 396 U.S. at 150, 24 L. Ed. 2d at 332. There

can be no doubt that a state-imposed working condition

removes that condition from the scope of collective bar-

gaining, which, as above stated, is central to the federal

scheme. The bargaining freedom of at least one of the

parties is thereby -necessarily restricted. Adoption by

states of statutes imposing such conditions also inevitably

change the status quo, which under the Act is to be main-

tained while bargaining, and the other steps in the federal

machinery, is carried out.

In California v. Taylor, 353 U.S. 553, 1 L. Ed. 2d 1034

(1957) the Supreme Court dealt with the applicability of

the Railway Labor Act to a state-owned railroad, the Belt

Railroad. Under California law the employees of the Belt

Railroad, being state employees, had no right to bargain

collectively with the state concerning those terms and con-

ditions of employment which were fixed by the civil service

laws of the state. The Supreme Court held that the Rail-

7. Section 6 of the Railway Labor Act, 45 U.S.C. § 156, pro-

vides as follows:

“(Notice of Intended Change in Agreements affectin

Rates of Pay, Rules, or Working Conditions.] Carriers an

representatives of the employees shall give at least thirty days’

written notice of an intended change in agreements affectin

rates of pay, rules, or working conditions, and the time an

place for the beginning of conference between the representa-

tives of the parties interested in such intended changes shall

be agreed upon within ten days after the receipts of said

notice, and said time shall be within the thirty days provided

in the notice. In every case where such notice of intended

change has been given, or conferences are being held with

reference thereto, or the services of the Mediation Board have

been requested by either party, or said Board has proffered

its services, rates of pay, rules, or working conditions shall

not be altered by the carrier until the controversy has been

finally acted upon as required by Section 5 of this Act, by the

Mediation Board, unless a period of ten days has elapsed after

termination of conferences without request for or proffer of

the services of the Mediation Board.”

A22 Dissenting Opinion (Pa. Sup. Ct.)

way Labor Act applied to the Belt Railroad, and that the

policy of the state must therefore give way. Crucial to the

decision was the purpose and policy of the Railway Labor

Act to protect and promote collective bargaining. “(T]he

Act’s policy of protecting collective bargaining comes into

conflict with the rule of California law that state employ-

ees have no right to bargain collectively with the state

concerning terms and conditions of employment which are

fixed by the state’s civil service laws. The state civil serv-

ice relationship is the antithesis of that established by

collectively bargained contracts throughout the railroad

industry.” 353 U.S. at 559, 560, 1 L. Ed. 2d at 1039.

Accord, International Longshoreman’s Association v. North

Carolina State Ports Authority, 370 F. Supp. 33 (E.D.N.C.

1974).

There is no question that the length of a pay period

is a “working condition” and subject to the provision of

Sec. 6 of the Railway Labor Act. Indeed, the record shows

that pay periods have been so treated for many years by

the parties to this dispute.* That working condition—

which the legislature of Pennsylvania has by Act No. 43

declared to be non-bargainable—stands in no different

light than the working conditions which in California were

fixed by that state’s civil service laws. The same reasons

which impelled the Supreme Court to hold that since the

federal Act applied to the Belt Railroad the policy of Cali-

fornia must give way, dictate that the policy of Pennsyl-

vania as stated in Act No. 43 must also give way.®

8. A change to a weekly pay system was proposed by means

of a Section 6 notice by predecessor organizations to United Trans-

portation Union, the present appellant, in 1959. Negotiations pur-

suant thereto resulted in a change from a semi-monthly basis of

payments to a bi-weekly basis. This basis has continued to date.

9. The reliance of the majority opinion, ante, page 10, on

Terminal Railroad Association v. Brotherhood of Railroad Train-

men, supra, is misplaced. The Supreme Court there distinguished

between “differences that threaten continuity of work” and those

Dissenting Opinion (Pa. Sup. Ct.) A23

The Commonwealth Court, in my view, was entirely

sound in its analysis of the issue here involved and in the

conclusions it reached. I quote at length the following

passage of Judge Rogers’ opinion:

“We have concluded that the Act of 1971, P. L.

221, is an attempt on the part of the state to regulate

this working condition in the interest of employes;

that it has the effect of changing working conditions

without the notice and bargaining requirements of

The Railway Labor Act; that it is an interference with

and an intrusion upon Federal requirements; and that

it offends the Supremacy and Commerce clauses here-

inbefore cited. Although the Act of 1971 is expressly

subject to the provisions of existing labor agreements,

it can and in this case does change a customary work-

ing condition contrary to Section 6 of The Railway

Labor Act as interpreted by Detroit & Toledo Shore

Line Railway Company v. United Transportation

Union, supra. It substitutes for customary conditions,

until an agreement is reached, the heavy and imme-

diate hand of state law for the collective bargaining

process which Congress has declared to be the best

9. (Cont’d.)

which involve “conditions that threaten the health or safety of

workers.” Id., at 6, 87 L. Ed. at 577. The clear implication is that

disputes which do not involve health or safety must be resolved

through the processes of the Railway Labor Act. This reading of

Terminal Railroad Association is borne out by the reference to

that case in California v. Taylor, supra at 560, n.8, 1 L. Ed. 2d at

1039, n.8. After citing cases upholding the supremacy of federal

statutes relating to railroads in interstate commerce, the Court cites

Terminal Railroad Association for the proposition that “the Railway

Labor Act did not preclude a State from establishing minimum

health and safety regulations in the interest of railway employees.

That case did not concern a conflict between federally protected

collective —_ and inconsistent State laws.” The decision

has thus been limited to the facts there involved; the unnecessarily

broad language relative to preemption used by Mr. Justice Jackson

in his opinion and relied on by the majority here was dictum.

A24

Dissenting Opinion (Pa. Sup. Ct.)

and only means of changing such conditions. If we

should hold that Pennsylvania may regulate customary

pay periods without the agreement of the parties re-

quired by The Railway Labor Act, the state could

similarly effect (and except for our supersedeas would

have here effected) changes in existing practices so

drastic as to render subsequent bargaining thereon

pointless. Or, state regulations, could be instituted

during bargaining arbitration or mediation under The

Federal Railway Act so favorable to one of the parties

as to render it impossible realistically for the repre-

sentatives of that party to relinquish the advantage so

conferred at the bargaining table although the other

party is prepared for a work stoppage unless a change

is made.

“The Act of 1971, P. L. 221 is artful in its express

subservience to hiring contracts and labor agreements

and we would have more difficulty finding interfer-

ence with Federal requirements had the Act expressly

exempted customary practices or had the Secretary

construed the Act as intending the exemption of

customary practices. We do not quarrel with the

Secretary's construction, for if the Act is not intended

to act on customary pay periods different from the

weekly requirement it stipulates, there is nothing for

it to act upon, unless there is somewhere in Penn-

sylvania a railroad enterprise with no labor agree-

ment. The result is that the appellants have been

ordered instantly to change a working condition

other than by the procedures of The Railway Labor

Act. This brings the case clearly within the rulings

of California v. Taylor, 353 U.S. 553 (1957), holding

that a state statute denying state employes collective

bargaining rights was superseded as to employes of a

Dissenting Opinion (Pa. Sup. Ct.) A25

state owned railroad by The Railway Labor Act, and

Local 24, I1.B. of T. v. Oliver, 358 U.S. 283 (1959),

holding that a state antitrust law must zive way to

provisions of a labor agreement reached under the

provisions of the National Labor Relations Act.”

Baltimore & Ohio R.R. v. Department of Labor & In-

dustry, 12 Pa. Com. Ct. 292, at 298-300, 314 A.2d 862 at

865-66 (1974).

Because I find that the Act of 1971 is invalid under

the preemption doctrine, I do not reach the questions of

the constitutionality of the Act under the Equal Protection

clause of the Fourteenth Amendment to the Constitution

of the United States and under Article III, Section 32, of

the Constitution of Pennsylvania.

I would affirm the order of the Commonwealth Court

setting aside the order of the Secretary of the Department

of Labor and Industry.

Mr. CuieFr Justice JONEs joins in this dissent.

A26 Opinion (Pa. Comm. Ct.)

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

No. 625 C.D. 1973

BALTIMORE AND OHIO RAILROAD CO. anp

WESTERN MARYLAND RAILWAY COMPANY,

Appellants

Dv.

COMMONWEALTH OF PENNSYLVANIA DEPART-

MENT OF LABOR AND INDUSTRY,

Appellee

and

UNITED TRANSPORTATION UNION,

Intervening Appellee

BEFORE:

HonoraBLE JAMES C. CrRUMLISH, JR., Judge

HonoraB_Le Harry A. KRAMER, Judge

HonoraBLeE Roy WILKINSON, JR., Judge

HONORABLE GLENN E. MENCER, Judge

HoNoRABLE THEODORE O. RocERs, Judge

HonorRABLE GENEVIEVE BLATT, Judge

Argued: December 3, 1973—HarrisBuRG

OPINION.

OPINION BY JUDGE ROGERS Fitep: February 11, 1974

United Transportation Union, a labor organization

which represents the employes of Baltimore & Ohio Rail-

road Co. and Western Maryland Railway Company, filed

with the Department of Labor and Industry of Pennsyl-

Opinion (Pa. Comm. Ct.) A27

vania complaints alleging the failure of those railroad com-

panies 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 busi-

ness, 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 con-

ducted 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. We recommended, and the

Secretary approved and issued, an order that the com-

panies pay those employes not covered by agreements

weekly as the Act provides. The railroad companies have

appealed.

A28 Opinion (Pa. Comm. Ct.)

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 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,’ the Commerce Clause *

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

prohibits the General Assembly, inter alia, from passing

local or special laws regulating labor.

The appellants contend that the Act of 1971, P.L.

211, is at odds wtih The Railway Labor Act, 45 U.S.C.A.

§151 and is therefore unenforceable. The purposes

‘sought to be accomplished by The Railway Labor Act are

the avoidance of interruption in railroad service; the pro-

tection of freedom of association among railroad employes;

the assurance of independence of both railroads and their

employes to organize; the provision for prompt and orderly

settlement of disputes between railroads and their em-

ployes concerning rates of pay, rules or working condi-

tions; and the prompt and orderly settlement of disputes

growing out of grievances or the application of agreements

concerning rates of pay, rules or working conditions. 45

U.S.C.A. §151(a). These purposes are sought io be

achieved by imposing upon railroads and their employes

the duties of conferring and diligently attempting to re-

solve their disputes amicably and by the provision of de-

tailed procedures and elaborate machinery to assist these

efforts. The National Railroad Adjustment Board is

created to hear disputes not settled by conference of the

parties; the National Mediation Board mediates major dis-

1. Article VI of the United States Constitution.

2. Article I, Section 8 of the United States Constitution.

Opinion (Pa. Comm. Ct.) A29

putes and superintends their arbitration; and, where all

else has failed, an Emergency Board appointed by the

President may investigate and report on the dispute. Strike

action and lockouts are postponed or delayed during the

considerable time these mandatory statutory procedures

are being exhausted and unilateral action to change exist-

ing conditions is forbidden without written notice and

bargaining, if desired. Section 6, 45 U.S.C.A. § 156

provides:

“Sec. 6. [Notice of Intended Change in Agreements

affecting Rates of Pay, Rules, or Working Conditions. ]

Carriers and representatives of the employees shall

give at least thirty days’ written notice of an intended

change in agreements affecting rates of pay, rules,

or working conditions, and the time and place for

the beginning of conference between the representa-

tives of the parties interested in such intended changes

shall be agreed upon within ten days after the re-

ceipts of said notice, and said time shall be within

the thirty days provided in the notice. In every case

where such notice of intended change has been given,

or conferences are being held with reference thereto,

or the services of the Mediation Board have been re-

quested by either party, or said Board has proffered

its services, rates of pay, rules, or working conditions

shall not be altered by the carrier until the controversy

has been finally acted upon as required by Section 5

of this Act, by the Mediation Board, unless a period

of ten days has elapsed after termination of confer-

ences without request for or proffer of the services

of the Mediation Board.”

The essence of the Federal legislation is that work

stoppages on account of labor disputes will be best pre-

vented if the parties themselves establish the rates of

A30 Opinion (Pa. Comm. Ct.)

pay, rules and working conditions in the industry and

settle their disputes by negotiation with the assistance of

competent Federal agencies, under the influence finally

of an informed public opinion. In Detroit & Toledo Shore

Line Railroad Company v. United Transportation Union,

396 U.S. 142 (1969), the Supreme Court held that the

status quo which must be maintained by Section 6 of The

Federal Railway Act includes not only matters expressly

dealt with in existing collective bargaining agreements but

also actual conditions out of which the dispute arose, al-

though not covered in the agreement. Justice Black ex-

plained the Act’s purpose and methods as follows:

“The Railway Labor Act was passed in 1926 to

encourage collective bargaining by railroads and their

employees in order to prevent, if possible, wasteful

strikes and interruptions of interstate commerce. The

problem of strikes was considered to be particularly

acute in the area of ‘major disputes,’ those disputes

involving the formation of collective agreements and

efforts to change them. Elgin, J. & E. R. Co. v.

Burley, 325 U.S. 711, 722-726, 89 L. Ed. 1886, 1894,

1896, 65 S. Ct. 1282 (1945). Rather than rely upon

compulsory arbitration, to which both sides were bit-

terly opposed, the railroad and union representatives

who drafted » Act chose to leave the settlement of

major dispu entirely to the processes of non-com-

pulsory adjustment. Id., at 724, 89 L. Ed. at 1895.

To this end, the Act established rather elaborate

machinery tor negotiation, mediation, voluntary arbi-

tration, and conciliation. General Committee, B.L.E.

v. Missouri-K.-T.R. Co., 320 U.S. 323, 328-333, 88

L. Ed. 76, 79, 82, 64 S. Ct. 146 (1943). It imposed

upon the parties an obligation to make every reason-

able effort to negotiate a settlement and to refrain

Opinion (Pa. Comm. Ct.) A3l

from altering the status quo by resorting to self-help

while the Act’s remedies were being exhausted.

Railroad Trainmen v. Terminal Co., 394 U.S. 369,

378, 22 L. Ed. 2d 344, 354, 89 S. Ct. 1109 (1969);

Elgin, J. & E.R. Co. v. Burley, supra, at 721-731, 89

L. Ed. 1886 at 1893; Texas & N.O.R. Co. v. Railway

Clerks, 281 U.S. 548, 565-566, 74 L. Ed. 1034, 1044,

50 S. Ct. 427 (1930). A final and crucial aspect of

the Act was the power given to the parties and to

representatives of the public to make the exhaustion

of the Act’s remedies an almost interminable process.

“The Act’s status quo requirement[s] [are] cen-

tral to its design... .”

“The obligation of both parties during a period in

which any of these status quo provisions is properly

invoked is to preserve and maintain unchanged those

actual, objective working conditions and practices,

broadly conceived, which were in effect prior to the

time the pending dispute arose and which are in-

volved in or related to that dispute.

“It would be virtually impossible to include all work-

ing conditions in a collective-bargaining agreement.

Where a condition is satisfactorily tolerable to both

sides, it is often omitted from the agreement, and it

has been suggested that this practice is more fre-

quent in the railroad industry than in most others.

When the union moves to bring such a previously

uncovered condition within the agreement, it is ab-

solutely essential that the status quo provisions of

A32 Opinion (Pa. Comm. Ct.)

the Act apply to that working condition if the purpose

of the Act is to be fulfilled. If the railroad is free at

this stage to take advantage of the agreement's silence

and resort to self-help, the union cannot be expected

to hold back its own economic weapons, including

the strike. Only if both sides are equally restrained

can the Act’s remedies work effectively.” (Emphasis

supplied.) 396 U.S. at 148, 150, 152, 153, 155.

The parties to this litigation agree that the pay period

is a working condition. We have concluded that the Act

of 1971, P.L. 221, is an attempt on the part of the state

to regulate this working condition in the interest of em-

ployes; that it has the effect of changing working condi-

tions without the notice and bargaining requirements of

The Railway Labor Act; that it is an interference with

and an intrusion upon Federal requirements; and that it

offends the Supremacy and Commerce clauses hereinbe-

fore cited. Although the Act of 1971 is expressly subject

to the provisions of existing labor agreements, it can and

in this case does change a customary working condition

contrary to Section 6 of The Railway Labor Act as inter-

preted by Detroit & Toledo Shore Line Railway Company

v. United Transportation Union, supra. It substitutes for

customary conditions, until an agreement is reached, the

heavy and immediate hand of state law for the collective

bargaining process which Congress has declared to be the

best and only means of changing such conditions. If we

should hold that Pennsylvania may regulate customary

pay periods without the agreement of the parties required

by The Railway Labor Act, the state could similarly effect

(and except for our supersedeas would have here effected )

changes in existing practices so drastic as to render subse-

quent bargaining thereon pointless. Or, state regulations

could be instituted during bargaining, arbitration or me-

Opinion (Pa. Comm. Ct.) A33

diation under The Federal Railway Act so favorable to

one of the parties as to render it impossible realistically

for the representatives of that party to relinquish the ad-

vantage so conferred at the bargaining table although the

other party is prepared for a work stoppage unless a

change is made.

The Act of 1971, P.L. 221 is artful in its express sub-

servience to hiring contracts and labor agreements and

we would have more difficulty finding interference with

Federal requirements had the Act expressly exempted

customary practices or had the Secretary construed the Act

as intending the exemption of customary practices. We

do not quarrel with the Secretary’s construction, for if the

Act is not intended to act on customary pay periods differ-

ent from the weekly requirement it stipulates, there is

nothing for it to act upon, unless there is somewhere in

Pennsylvania a railroad enterprise with no labor agree-

ment. The result is that the appellants have been ordered

instantly to change a working condition other than by the

procedures of The Railway Labor Act. This brings the

case clearly within the rulings of California v. Taylor, 353

U.S. 553 (1957), holding that a state statute denying state

employes collective bargaining rights was superceded as

to employes of a state owned railroad by The Railway

Labor Act, and Local 24, I.B. of T. v. Oliver, 358 U.S. 283

(1959), holding that a state antitrust law must give way

to provisions of a labor agreement reached under the pro-

visions of the National Labor Relations Act.

The case * and dicta from other cases relied upon by

the Secretary deal with state health and safety regulations

and have no application here. The distinction is fully

explained and the cases analyzed by the California District

3. Terminal Railroad Association v. Brotherhood of Railroad

Trainmen, 318 U.S. 1 (1943). See Bessemer & L.E.R.R. v. Penn-

sylvania P.U.C., 430 Pa. 339, 243 A. 2d 358 (1968).

A34 Opinion (Pa. Comm. Ct.)

Court of Appeals in United Airlines Inc. v. Industrial Wel-

fare Commission, 28 Cal. Reporter 238 (1963) where it

was held that a state may not impose regulations on work-

ing conditions not related to health and safety because the

Railway Labor Act has preempted the field, leaving the

regulation to bargaining agreements between employes

and employer. That holding and the reasoning of the

opinion on which it is based are persuasive and are fol-

lowed here.

In view of our holding based upon the Supremacy and

Commerce clauses, it is unnecessary for us to comment

upon the appellants’ arguments based upon the Fourteenth

Amendment and Article III Section 32 of the Pennsylvania

Constitution, beyond commenting that we have concluded

that the Legislature’s classification of railroad workers is

reasonable and that its imposition of this regulation upon

the class of raiload workers is not special legislation.

ORDER.

Anp Now, this 11th day of February, 1974, the appeal

of the Baltimore and Ohio Railroad Co. and Western

Maryland Railway Company is sustained and the order of

the Secretary is set aside.

/s/ THrovore O. RocErs,

Theodore O. Rogers, J.

Dissenting Opinion (Pa. Comm. Ct.) A35

DISSENTING OPINION.

DIssENTING OPINION BY JUDGE BLATT

Fitep: February 11, 1974

I must respectfully dissent. Although I agree with the

statement of the majority that “the Legislature’s classifica-

tion of railroad workers is reasonable and that its imposi-

tion of this regulation upon the class of railroad workers

is not special legislation”, I do not agree that the Act of

July 14, 1971, P.L. 221, 43 P.S. § 255.1 (hereinafter Act

No. 43), is in conflict with and superseded by The Railway

Labor Act, 45 U.S.C.A. § 151 et seq.

The question of whether or not a state law is invalid

as conflicting with Federal laws touching the same subject

is not to be determined according to any rigid formula or

rule, but depends upon whether, under the circumstances

of the particular case, the state law stands as an obstacle

to the accomplishment and execution of the full purposes

and objectives of Congress in enacting the statute in ques-

tion. Perez v. Campbell, 402 U.S. 637 (1971); Hines v.

Davidowitz, 312 U.S. 52 (1941). Some of the general

criteria which might be applied, however, include whether

or not: 1) the scheme of federal regulation is so pervasive

as to make reasonable the inference that Congress left no

room for the states to supplement it; 2) the federal statute

touches a field in which the federal interest is so dominant

that the federal system must be assumed to preclude cii-

forcement of state laws on the subject; or 3) the enforce-

ment of the state act presents a serious danger of conflict

with the administration of the federal program. Pennsyl-

vania v. Nelser, 350 U.S. 497 (1956).

As the majority notes, the Railway Labor Act is in-

tended, inter alia, to avoid interruption in commerce or

the operation of any railroad by providing for the prompt

A36 Dissenting Opinion (Pa. Comm. Ct.)

and orderly settlements of all disputes concerning rates

of pay, rules or working conditions. It does not under-

take governmental regulation of these matters but instead

provides a means, collective bargaining, by which agree-

ment thereon may be reached. Enactment of state laws

which deal with working conditions on railroads does not

result in a conflict with the Railway Labor Act, therefore,

unless such state laws in some manner interfere with the

procedures by which employer-employee agreements are

to be reached,’ for the Railway Labor Act was not in-

tended to preempt the field of regulating working condi-

tions themselves. Terminal Railroad Association of St.

Louis v. Brotherhood of Railroad Trainmen, 318 U.S. 1

(1943).

Act No. 43 does not interfere with the expressed pur-

poses of the Railway Labor Act and it in no way affects

the means by which agreement may be reached between

parties with respect to wages, hours, or working condi-

tions. Even in situations where the statute is effective,

the parties are still free to bargain over the matter of pay

periods and are not compelled to reach any particular

agreement thereon, and the statutory pay period can be

changed or continued in effect by agreement of the parties.

Act No. 43, it seems to me, does not stand as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress in enacting the Rail-

way Labor Act, and this interpretation is in no way in

conflict with the reasoning in Detroit and Toledo Shore

Line Railroad Company v. United Transportation Union,

396 U.S. 142 (1969). That case was not concerned with

1. This was the situation in California v. Taylor, 353 U.S. 553

(1957), wherein the state attempted to prohibit employees of a

state-owned railroad from bargaining collectively because of the

state policy that no state employees had the right to bargain. The

Supreme ‘Court there held that such policy was in conflict with

the Railway Labor Act and thus invalid.

Dissenting Opinion (Pa. Comm. Ct.) A37

retaining the status quo per se as applied to working con-

ditions, but only with obliging the parties not to change

the status quo while the procedures of the Railway Labor

Act for settling disputes were being exhausted. As such,

that policy retained the Act’s primary objective, i.e., the

prevention of strikes, an objective which will not be af-

fected by the operation of Act No. 43.

I would affirm the order of the Department of Labor

and Industry.

/s/ GENEVIEVE BLATT

Genevieve Blatt, Judge

Judge Kramer joins in this dissent.

A38 Recommendations and Findings (Hearing Exam.)

COMMONWEALTH OF PENNSYLVANIA

Department of Labor and Industry

In RE:

UNITED TRANSPORTATION UNION

v.

BALTIMORE AND OHIO RAILROAD and

WESTERN MARYLAND RAILWAY COMPANY

RECOMMENDATIONS AND FINDINGS OF

HEARING EXAMINER.

I. Discussion.

On July 14, 1971, the Governor of the Commonwealth

of Pennsylvania signed Act No. 43 of 1971, 43 P.S. § 255.1

et seq., providing in pertinent part as follows:

Section 1. Unless other 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 busi-

ness, or carrying on the business thereof by lease or

otherwise, shall pay once each week to each em-

ploye, the wages earned for the even day period end-

ing not more than fourteen days prior to such pay-

ment. Wages as the term is herein used shall be

limited to those derived from basic pro rata rates of

pay pursuant to a labor agreement, and shall not in-

clude incentives, bonuses, and other similar types of

fringe payments.

Section 2. The last payment of wages under

existing law shall be made on or before January 14,

Recommendations and Findings (Hearing Exam.) A39

1972, and the first payment of wages under section 1

of this act shall be made on or before January 21,

1972.

By formal complaints filed with this Department® the

United Transportation Union alleges that the Baltimore

and Ohio Railroad Company and the Western Maryland

Railway Company are not in compliance with the Act.

After informal attempts were made to secure an agree-

ment with regard to compliance, both complaints were

set for oral hearing in Harrisburg on January 15, 1973, at

which time the proceedings were consolidated.

The Hearing Officer appointed by the Secretary of

Labor and Industry was Charles S. Solit, Esquire. T. P.

Shearer appeared for the United Transportation Union,

Joseph B. Geyer for the Baltimore and Ohio Railroad and

Douglas V. Pope and W. B. Tittsworth, Jr. for the Western

Maryland Railway Company. Six witnesses were called

and 14 exhibits were admitted into evidence. A verbatim

transcript of the hearing was made.

Initially it should be noted that the weekly pay period

requirement of the Pennsylvania Act is not mandatory

if there is stipulation to the contrary in the contract of

hiring or in the applicable labor agreement. The sole issue

involved is whether or not the contract of hiring or the

collective bargaining agreements provide for payments on

other than a weekly basis.

It would appear that under the Railway Labor Act,

45 USC § 151 et seq., “rates of pay, rules, or working con-

ditions” cannot be changed unilaterally even though such

changes are not prohibited by the existing collective bar-

* In the absence of any specific designation in the Act itself

the duty of enforcement was held to be that of the Department

of Labor and Indusuwy by the Attorney General because this De-

a, is responsible for the enforcement of other wage legisla-

on.

A40 Recommendations and Findings (Hearing Exam.)

gaining agreement. The Detroit and Toledo Shore Line

R. Co. v. UTU, 90 S. Ct. 294, 396 U.S. 142.

It would further appear and we so find that the cus-

tomary pay periods are a working condition which can

only be changed pursuant to the Railway Labor Act or

by the operation of a law such as Act 43.

The question then remains as to whether such cus-

tomary pay periods are embraced within the phrase “other-

wise stipulated in the contract of hiring or in the applicable

labor agreement.”

This question is one of first impression. It has not

been decided by the courts. It is, therefore, our duty

to make an initial determination as to the proper construc-

tion of the Act.

Levinson v. Spector Motor Service, 67 S. Ct. 931,

330 U.S. 649.

N.L.R.B. v. Hearst Publications, 64 S. Ct. 851, 332

US. 111.

Unemployment Compensation Commission of

Alaska v. Aragan, 67 S. Ct. 245, 329 U.S. 143.

International Packers, Ltd. v. F.M.C., 356 F.2d 808.

Hotel Casey v. Ross, 23 Atl.2d 737, 343 Pa. 573.

It is obvious that if the customary pay periods are

held to be within and form a part of the contract of hiring

or the collective bargaining agreement the legislative in-

tent would be thwarted as the Act would have no effect

whatsoever. We find that they are not. Our conclusion

is reinforced by the fact that the courts have long held

that “working conditions” are separate and distinct from

the collective bargaining agreement. Cf. The Detroit and

Toledo Shore Line R. Co. v. UTU, supra. Nor do we

believe that “working conditions” can properly be brought

within the ambit of the phrase “contract of hiring.”

Recommendations and Findings (Hearing Exam.) A41

Therefore, we find the “collective bargaining agreement”

and any “contract of hiring” as used in Act 43 to be the

original written contract or agreement together with any

written amendments thereto.

In order to avoid the obligation imposed by the Act,

it is therefore determined that a railroad must show a

specific provision for a pay period other than that required

by the Act in either the “contract of hiring” or the “collec-

tive bargaining agreement.”

It further appears from the evidence that employees

of B & O working in the crafts and classes of firemen, con-

ductors and trainmen are represented by the United Trans-

portation Union (UTU), a labor organization national in

scope, duly certified by the National Mediation Board as

the collective bargaining agent of such employees under

the Railway Labor Act. Prior to 1969, employees work-

ing as firemen were represented by the Brotherhvod of

Locomotive Firemen and Enginemen (B.L.F. & E.); those

working as conductors were represented by the Order of

Railway Conductors and Brakemen (ORC&B); and, those

working as trainmen or yardmen were represented by the

Brotherhood of Railroad Trainmen (BRT). On January

1, 1969, these three unions, together with one union

(Switchmen’s Union of North America), were merged

into a single union which is now designated as noted

above, UTU. The collective bargaining agreements in

existence prior to 1969 were continued in full force and

effect and each former union continues to have its separate

General Chairman who is the duly authorized bargaining

agent for said union. The present Chairman of the BRT

(now known as UTU-T) is George P. Stanton. The pres-

ent General Chairman of ORC&B (now known as UTU-C)

is John F. Kalfas. The present General Chairman of the

BLF&E (now known as UTU-E) are James Duncan and

A42. Recommendations and Findings (Hearing Exam.)

Wayne A. Adamson (the latter being General Chairman

of the former BLF&E for the Buffalo Division). Collec-

tive bargaining agreements exist between the Baltimore

and Ohio and each of these four groups.

Similarly, on the Western Maryland, two collective

bargaining agreements now exist. .

It is, therefore, only necessary to examine the evi-

dence to determine whether each of these collective bar-

gaining agreements provided for wage payments other

than as required by Act 43 as no evidence relative to

contracts of hiring was submitted.

The four (4) collective bargaining agreements on

the Baltimore & Ohio involved herein are as follows:

1. Former members of the Brotherhood of Railroad

Trainmen, G. P. Stanton, General Chairman.

2. Former members of the Order of Railway Con-

ductors, J. F. Kalfas, General Chairman.

3. Former members of the Brotherhood of Locomo-

tive Firemen and Enginemen excluding the Buf-

falo Division, J. M. Duncan, General Chairman.

4. Former members of the Brotherhood of Locomo-

tive Firemen and Enginemen on the Buffalo Divi-

sion, Wayne A. Adamson, General Chairman.

Consideration of the Western Maryland involves an

examination of two (2) collective bargaining agreements:

5. Former members of the Brotherhood of Railroad

Trainmen, Van H. Parsons, General Chairman.

6. Former members of the Brotherhood of Locomo-

tive Firemen and Enginemen,

R. D. Dilligatti, General Chairman.

Recommendations and Findings (Hearing Exam.) A43

II. Finpincs or Fact.

A. BROTHERHOOD OF RAILROAD TRAINMEN, Baltimore &

Ohio.

1. George P. Stanton, Sr. is the General Chairman,

United Transportation Union, Trainmen’s Committee of

the Chesapeake, and as such represents trainmen over the

entire B & O system, including the State of Pennsylvania.

2. The former trainmen were paid twice a month

until August, 1959, when this procedure was changed

pursuant to an agreement with the Former Brotherhood of

Railroad Trainmen which is binding and still in effect, to a

payday every 14 days.

3. The new pay procedure was negotiated by the

General Chairmen’s Association on the Baltimore & Ohio,

said Association being a voluntary one to which the former

Trainmen belonged and still belong and which meets twice

a year.

4. The Association had reached a tentative agreement

with the Baltimore & Ohio relative to 14 day pay periods

whereupon the former Trainmen (who had served appro-

priate “Section 6” notice under the Railway Labor Act

seeking a change in the semi-monthly pay procedure)

withdrew their individual demand under the Railway

Labor Act and endorsed the Association's agreement.

5. The aforesaid endorsement was by letter properly

signed by the appropriate Trainmen officials.

6. Mr. Stanton, the present General Chairman, recog-

nizes this agreement as binding not because the General

Chairmen’s Association made it, but because the former

Trainmen endorsed it in writing.

7. It appears from the evidence presented and I so

find that insofar as the Former Brotherhood of Railroad

A44 Recommendations and Findings (Hearing Exam.)

Trainmen, Baltimore & Ohio, is concerned, there is a pro-

vision in its collective bargaining agreement for other than

weekly pay and as to them Act No. 43 does not apply.

B. Orper or Ramway Conpucrtors, Baltimore and Ohio.

8. John F. Kalfas, Jr. is the General Chairman for the

Conductors of the United Transportation Union and

formerly the General Chairman for the Conductors of the

former Order of Railway Conductors and Brakemen.

9. Mr. Kalfas testified that his organization has no

agreement with Baltimore and Ohio relative to frequency

of pay periods and that his organization is not presently

and never was a member of the General Chairmen’s Asso-

ciation and has never ratified any association agreement.

10. We find that the collective bargaining agreement

of the former Conductors represented by Mr. Kalfas does

not contain any specific provisions for frequency of pay

periods and that, accordingly, Act No. 43 would be ap-

plicable in this instance.

C. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE-

MEN, EXCLUDING THE BuFFALO DIVISION, Baltimore

and Ohio.

11. No testimony regarding the collective bargaining

agreement of this organization was introduced during the

hearing and, accordingly, we find that the pay provisions

of Act No. 43 are applicable to this group in this instance.

D. BroTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE-

MEN ON THE BUFFALO Drvision, Baltimore and Ohio.

12. Wayne A. Adamson is the General Chairman on

the Baltimore and Ohio Railroad, Buffalo Division, and

Recommendations and Findings (Hearing Exam.) A45

represents Baltimore and Ohio employees who work in the

Commonwealth of Pennsylvania and New York State.

13. Mr. Adamson’s uncontradicted testimony was that

the collective bargaining agreement covering the employ-

ees he represented contained no agreement relative to pay

and that his organization was not now and never had been

a member of the General Chairmen’s Association.

14. Mr. Adamson testified that those members of his

group who worked in New York State were paid on a

weekly basis in accordance with the requirements of the

New York State law which has been in effect since 1956.

15. We, accordingly, find that this group must be paid

- J weekly basis pursuant to the requirements of Act

0. 43.

E. BROTHERHOOD OF RAILROAD TRAINMEN,

Western Maryland.

16. Fred B. Plummer, Manager of Labor Relations

for Western Maryland, testified that he considered the pay

periods to be an operating practice or working conditions

which could only be changed as a result of a so-called

Section 6 notice under the Railway Labor Act.

17. The testimony indicates that on June 3, 1957, all

of the General Chairmen, including the two groups now

members of the United Transportation Union, served a

Notice upon the Western Maryland seeking to change the

frequency of wage payment (then being paid on a twice-

monthly basis) so that all employees would be paid on

Friday of each week.

18. Said notice was signed on behalf of the Trainmen

by their then and now General Chairman. (Exhibit A

and Exhibit A-1).

A46 Recommendations and Findings (Hearing Exam.)

19. On July 12, 1957, the Western Maryland denied

this request by letter to Mr. Carroll, General Chairman of

the Brotherhood of Railway and Steamship Clerks, Freight

Handlers, Express and Station Employees and President

of the Associated General Chairmen (Exhibit B). Copies

of the July 12, 1957 letter were sent to representatives of

the two organizations herein involved.

20. On October 24, 1957, another meeting was held

at which time the union proposal was modified after which

the Western Maryland by letter dated November 1, 1957,

denied the proposal as modified (Exhibit C). After this

time no action was taken until June of 1959.

21. On June 15, 1959, a request which could be con-

strued as a Section 6 notice was addressed to the Western

Maryland by J. C. Hopkins, President of the Associated

General Chairmen and also General Chairman of the

Brotherhood of Locomotive Firemen and Enginemen (Ex-

hibit D). It was not signed by any representative of the

Brotherhood of Railroad Trainmen, but purported to be

made on their behalf among others.

22. Ata meeting on October 16, 1959, Western Mary-

land offered to institute a bi-weekly in lieu of twice each

month pay provided that it be standardized for all em-

ployees. This was confirmed by letter dated October 19,

1959 (Exhibit F).

23. On December 5, 1959, Mr. Hopkins advised the

Western Maryland that the conditions required were ac-

cepted (Exhibit G). Mr. Hopkins purported to act for

all of the General Chairmen.

24. In the letter of January 9, 1960 (Exhibit 1), ad-

dressed to the Western Maryland by Mr. Hopkins, he

stated that notice of concurrence with the bi-weekly pay

Recommendations and Findings (Hearing Exam.) 47

proposal was received from Mr. Parsons of the Brother-

hood of Railroad Trainmen. There is no indication in

this letter as to whether such notice was oral or written.

25. The bi-weekly pay period was placed in effect by

the Western Maryland as a result of these negotiations on

April 16, 1960.

26. Mr. Plummer felt that Western Maryland had a

“labor agreement” as contemplated in Act No. 43 which

would exclude them from paying wages to this group on a

weekly basis.

27. Van H. Parsons has been the General Chairman

of the Former Brotherhood of Railroad Trainmen since

1949 and stated that it is the policy of the Brotherhood of

Railroad Trainmen and the United Transportation Union

that only duly designated officers of the labor union can

sign Section 6 notices and sign agreements.

28. Mr. Parsons contends that the Associated General

Chairmen were authorized to act for him in its attempts

to convert the twice monthly pay procedure to a bi-weekly

procedure, but he considers this change to be a mere

bookkeeping transaction.

29. Nothing in the record was presented which can

be construed as an amendment or addendum to the Train-

men’s collective bargaining agreement and nothing with

the signature of any Trainmen or United Transportation

Union official was introduced which could be interpreted

as such.

30. We find that the collective bargaining agreement

of the Former Trainmen does not include a provision for

other than weekly pay and that compliance with Act 43

is necessary.

A48 Recommendations and Findings (Hearing Exam.)

F. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE-

MEN, Western Maryland.

31. In view of the fact that Exhibits D and I are

signed by Mr. J. C. Hopkins not only as President of the

Associated General Chairmen but also as President of the

Former Brotherhood of Locomotive Firemen and Engine-

men, it is clear thai the BLF&E has a fully operative col-

lective bargaining agreement with the Western Maryland

requiring bi-weekly pay. Compliance with Act No. 43 is,

therefore, not required under the exclusionary conditions

set forth therein.

CONCLUSIONS OF LAW.

1. The Baltimore and Ohio Railroad and the West-

ern Maryland Railway Company are common carriers by

railroad as set forth in Section 1 of Act No. 43 of 1971,

43 P.S. § 255.1.

2. A change in a working condition to which the

organization involved assented but not in writing cannot,

under our interpretation of “collective bargaining agree-

ment,” become a part of such agreement.

3. There is no “applicable labor agreement” with re-

spect to those employees covered by the collective bar-

gaining agreements of the former BLF&E and the former

Order of Railway Conductors employed by the Baltimore

and Ohio Railroad which would not require its compliance

with Act No. 43 of 1971, 43 P.S. § 255.1.

4. There is no “applicable labor agreement” with re-

spect to those employees covered by the collective bar-

gaining agreements of the Former Brotherhood of Rail-

road Trainmen employed by the Western Maryland Rail-

way Company which would not require its compliance

with Act No. 43 of 1971, 43 P.S. § 255.1.

Recommendations and Findings (Hearing Exam.) A49

ORDER.

AnD Now, this 5th day of April, 1973, it is Ordered

that the Baltimore and Ohio Railroad as soon as prac-

ticable and in any event no later than sixty (60) days

from date hereof to bring itself into compliance with Act

43 of 1971 and pay those employees covered by the col-

lective bargaining agreements of the former B.L.F.&E.

and the former Order of Railway Conductors in accord-

ance with said Act.

It is further Ordered that as soon as practicable and

no later than sixty (60) days from date hereof the Western

Maryland Railway Company institute compliance with

Act 43 of 1971 and pay those employees covered by the

collective bargaining agreement of the Former Brother-

hood of Railroad Trainmen in accordance with said Act.

Cares S. Sout,

Charles S. Solit,

General Counsel and Hearing

Examiner,

Department of Labor and Industry.

APPROVED and adopted as the Findings and Order

of the Department of Labor and Industry.

Pau J. Smirn,

Paul J. Smith,

Secretary of Labor and Industry.

April 5, 1973.

A50 Recommendations and Findings (Hearing Exam.)

Exhibit “A”.

(Letterhead of )

SysTEM Boarp OF ADJUSTMENT

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,

Freicut HANDLERS, EXPRESS AND STATION EMPLOYES

Western Maryland Railway Company

Baltimore, Md.

June 3, 1957

Mr. F. B. Plummer, Manager of Labor Relations

Western Maryland Railway Company

605 Standard Oil Building

Baltimore 2, Md.

Dear Sir:

In conformity with provisions of Section 6, of the

Railway Labor Act, I am attaching hereto formal notice

upon Carrier for the establishment between organizations

and carrier of a pay period rule providing for a pay on

Friday of each week.

Please advise time, date and place we may confer

with you on this request.

Very truly yours

/s/ J. F. CaRRoLy

President

Associated General Chairmen

Western Maryland Railway Company

Recommendations and Findings (Hearing Exam.) A51

Exhibit “A-1”.

Hagerstown, Maryland

May 13, 1957

Mr. F. B. Plummer, Manager of Labor Relations

Western Maryland Railway Company

605 Standard Oil Building

Baltimore 2, Maryland

Dear Sir:

While it is the position of the Committee representing

the employees under the respective agreements, between

the Carrier and the Brotherhood of Railroad Trainmen,

Brotherhood of Locomotive Firemen and Enginemen,

System Federation #30, Railroad Employees Department,

A.F. of L. & C.1.0. The Order of Railroad Telegraphers,

Railroad Signalmen of America, Brotherhood of M of W

Department, Brotherhood of Railway & Steam Clerks.

Because of the questions raised by the employees of

the above listed Organizations in connection with a weekly

pay.

The Committees do now serve formal notice upon the

Carrier in conformity with the provisions of Section 6 of

the Railroad Labor Act for the establishment of a pay

period rule providing for a pay on Friday of each week,

between the Organization and the Carrier as reflected in

this notice.

A52 Recommendations and Findings (Hearing Exam.)

Please advise time, date and place we may confer wtih

you on this request.

Yours Truly

V. H. Parsons P. J. SHooxk

General Chairman General Chairman

Brotherhood of Railroad Brotherhood of Locomotive

Trainmen Firemen & Enginemen

A. H. STEARNS C. G. Brrrorr

President General Chairman

System Federation #30 The Order of Railroad

Railway Employees Telegraphers

Department A.F. of L.

C.LO. H. C. Guscotr

General Chairman

Brotherhood of Railway

General Chairman Signalmen of America

Brotherhood of Maintenance

of Way Employees J. C. CARROLL

Department General Chairman

Brotherhood of Railway &

Steamship Clerks

Recommendations and Findings (Hearing Exam.) A53

Exhibit “B”.

(Letterhead of )

WESTERN MARYLAND RAaiLway COMPANY

Personnel Department

501 St. Paul Place, Baltimore 2, Md.

F. B. Plummer

Manager of Labor Relations

July 12, 1957

Mr. J. C. Carroll, President

Associated General Chairman

Western Maryland Railway Company

111 Beaumont Avenue

Baltimore 28, Maryland

Dear Sir:

This has reference to formal notice served by you under

date of May 13, 1957 proposing the establishment of a pay

period rule providing for pay on Friday of each week. In

accordance with Section 6 of the Railway Labor Act, as

amended, initial conference to discuss this notice was held

on July 2, 1957.

Your proposal has been given very careful consideration

and we feel forced to deny it. Our analysis indicates that

a weekly pay would be inefficient from an accounting

standpoint and would lead to a substantial increase in

payroll preparation costs. There are several prerequisites

which a weekly pay would entail, some of which were

mentioned at the meeting on July 2nd, and if you choose

to pursue the matter those prerequisites must be met be-

fore any further consideration could be given to your

A54 Recommendations and Findings (Hearing Exam.)

proposal. Since several organizations have not yet par-

ticipated in the handling of this proposal, their status

should be clarified before any further action is taken.

Very truly yours,

/s/ F. B. PLUMMER

FBP:nk

Copy to:

Messrs. V. H. Parsons, BRT

A. H. Stearns, Sys. Fed. 30

P. J. Shook, BLF&E

C. G. Bittorf, ORT

H. C. Guscott, BRSA

Recommendations and Findings (Hearing Exam.) A55

Exhibit “C”.

( Letterhead of )

WESTERN MARYLAND Raitway COMPANY

Personne! Department

300 St. Paul Place, Baltimore 2, Md.

F. B. Plummer

Manager of Labor Relations

November 1, 1957

Mr. J. C. Carroll, President

Associated General Chairmen

Western Maryland Railway Company

111 Beaumont Avenue

Baltimore 28, Maryland

Dear Sir:

Referring to formal notice served by you under date

of May 13, 1957, proposing the establishment of a pay-

period rule providing for pay on Friday of each week, and

your verbal modification of that proposal at meeting on

October 24, 1957, requesting a pay day on every other

Friday.

This will confirm the Company’s position at the Octo-

ber 24 conference that a bi-weekly pay date would cause

inefficiencies and administrative problems which would

make it impracticable. For that reason, plus other ex-

ternal factors which enter into the situation, it is necessary

A56 Recommendations and Findings (Hearing Exam.)

for me to advise you that your proposal can not be placed

into effect.

Yours very truly,

F. B. PLUMMER

a.

ce: Messrs.

V. H. Parsons, GC, BRT

P. J. Shook, GC, BLF&E

A. H. Stearns, Pres., Sys. Fed. 30

C. G. Bittorf, GC, ORT

H. C. Guscott, GC, BRSA

F. S. Poling, GC, BMWE

Recommendations and Findings (Hearing Exam.) A57

Exhibit “D”.

(Letterhead of )

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN

General Grievance Committee—Western Maryland System

Hagerstown, Md.

June 15, 1959.

Mr. F. B. Plummer,

Manager of Labor Relations,

Western Maryland Railway Co..,

300 St. Paul Place,

Baltimore 2, Maryland.

Dear Sir:

The undersigned has been authorized by the below

listed Committee representatives of the employees under

their respective agreements with the Western Maryland

Railway Company, to serve notice on the Carrier request-

ing the establishment of a bi-weekly pay period rule

providing for a pay day on every other Friday, with a

proviso that should a holiday fall on that Friday, then

the pay day will be on the prior Thursday.

This rule to become effective as soon as possible

but in no event later than August 1, 1959.

Mr. V. H. Parsons, General Chairman,

Brotherhood of Railroad Trainmen

Mr. A. G. Fouche, General Chairman,

Brotherhood of Railway & Steamship Clerks

Mr. C. G. Bittorf, General Chairman,

The Order of Railroad Telegraphers

A58 Recommendations and Findings (Hearing Exam.) Recommendations and Findings (Hearing Exam.) A59

Mr. H. C. Guscott, General Chairman, Exhibit “F”.

Brotherhood of Railroad Signalmen of America

Mr. A. H. Stearns, President,

System Federation No. 30, Railway Employees, October 19, 1959

Department A. F. of L, amd C.1.0O. Mr. J. C. Hopkins, President

Mr. J. C. Hopkins, General Chairman, Association of General Chairmen

Western Maryland System

Brotherhood of Locomotive Firemen and Enginemen 00 Ditaeien his

Please advise time, date and place we may confer Hagerstown, Maryland

with you on this request. Dear Mr. Hopkins:

Your truly, This has reference to our meeting on October 16,

J. C. Horxms, 1959, to discuss the proposal of the Association of General

J. C. Hopkins, Chairmen for a bi-weekly pay.

President, . Your proposition has been studied carefully. We feel

Associated General Chairmen, that acceptance of the bi-weekly pay principle by the

Western Maryland System Company must be premised on acceptance by the Asso-

ciation of the following which we consider basic essentials

to the efficient and economical administration of such a

Members AGC plan:

1. Standardization in the handling of pay for all em-

ployees represented by the Association.

2. A 14-day interval between the end of the pay

period and pay date.

We are willing to progress your request on this basis;

however, in accordance with your request at the October

16 meeting, no further action will be taken by us pending

an expression from you after handling with other members

of the Association.

ees

Yours very truly,

(Signed) F. B. PLumMER

A60 Recommendations and Findings (Hearing Exam.) Recommendations and Findings (Hearing Exam.) A61

Exhibit “C”. Please acknowledge and advise.

Very truly yours,

(Letterhead of ) J. C. Horxins,

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN J. C. Hopkins,

General Grievance Committee—Western Maryland System President,

Assoc. of Gen. Chair.,

Hagerstown, Md. West. Md. Rwy Sys.

December 5, 1959.

Mr. F. B. Plummer, cc: Members Assoc.

Manager of Labor Relations,

Western Maryland Railway Co.,

300 S. Paul Place,

Baltimore 2, Maryland.

Dear Sir:

Reference is made to your letter of October 19, 1959,

concerning our meeting in Baltimore on October 16th at

which time we discussed the proposal of the Association

of General Chairmen, Western Maryland System, for a

bi weekly pay day.

The two points stipulated in your letter as being basic

essentials necessary before acceptance of the bi-weekly

pay principle by the Company were made known to the

Association members and in reply they have advised this

office of their concurrence with the points in question.

Accordingly, and in line with our understanding we

desire that our proposal now be progressed to a conclu-

sion with the purpose in mind of instituting the bi-weekly

pay day as soon as possible, but not later than April 15,

1960.

In the interim the members desire to meet with you

to discuss the method of transition.

A62 Recommendations and Findings (Hearing Exam.)

Exhibit “TI.

(Letterhead of )

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN

General Grievance Committee—Western Maryland System

Hagerstown, Md.

January 9, 1960.

Mr. F. B. Plummer,

Manager of Labor Relations,

Western Maryland Railway Co.,

300 St. Paul Place,

Baltimore 2, Maryland.

Dear Mr. Plummer:

In reply to your letter of December 24, 1959, con-

cerning the Memorandum—Biweekly Payroll Proposals,

containing the proposed schedule of transition leading up

to the effective date of biweekly pay period of April 16,

1960.

Please be advised that as of this date notice of con-

currence with the Memorandum—Biweekly Payroll Propo-

sals, have been received from the following members of

the Association of General Chairmen, Western Maryland

System:

Mr. O. A. Anthony, President, Syst. Fed. No. 30.

Mr. V. H. Parsons, General Chairman, Bro. Railroad

Trainmen.

Mr. H. C. Guscott, General Chairman, Bro. Railroad

Signalmen.

Recommendations and Findings (Hearing Exam.) A63

Mr. C. G. Bittorf, General Chairman, Oder. Railroad

Teleg.

Mr. A. C. Fouche, General Chairman, Bro. Railway

Clerks.

Mr. Fred. S. Poling, General Chairman, Bro. Maint.

Way Emps.

And as general chairman of the B. of L. F. & E., the

undersigned is also in accord with the schedule of transi-

tion.

In accordance with the above authorizations, please

consider this your authorization to place the proposed

schedule of transition into effect, with the understanding

the pay period will be as proposed, effective April 16,

1960.

Will you be kind enough to have posted over the sys-

tem, the schedule of pay days between now and April

16th, as information for all employes concerned, copy to

the undersigned.

Yours very truly,

/s/ J. C. Hopkins

J. C. Hopkins,

President, A. G. C.,

Western Maryland System.

cc: Members A. G. C.