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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 806

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0556%3A1. Public record. Not legal advice.