Marsh v. Massachusetts Coastal Railroad LLC ( 2023 )

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SJC-13366
CHAD MARSH vs. MASSACHUSETTS COASTAL RAILROAD LLC & another.1
Plymouth. April 5, 2023. – August 14, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Massachusetts Wage Act. Public Works, Wage determination.
Federal Preemption. Labor, Public works, Wages. Railroad.
Statute, Construction, Federal preemption. Practice,
Civil, Motion to dismiss.
Civil action commenced in the Superior Court Department on
July 23, 2021.
A motion to dismiss was heard by Brian S. Glenny, J., and a
motion for reconsideration was considered by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Alvin S. Nathanson (Conner P. Lang also present) for the
defendants.
Raven Moeslinger for the plaintiff.
Sarah G. Yurasko, of the District of Columbia, & William D.
Black, for American Short Line and Regional Railroad
Association, amicus curiae, submitted a brief.
1 P. Chris Podgurski.
2
WENDLANDT, J. The Prevailing Wage Act, G. L. c. 149,
§§ 26-27H (Prevailing Wage Act, or Act), evinces the
Legislature's intent that laborers performing work in the
Commonwealth on the Commonwealth's public works projects are
paid a fair wage as determined by the Commonwealth based on
prevailing market conditions (prevailing wage). The Act is
designed to avoid rewarding a contractor that submits an
artificially low bid on public works projects by paying its
employees less than the prevailing wage. It embodies the
Commonwealth's policy to dedicate public funds to the payment of
wages consistent with market conditions to employees on public
works projects.
In the present case, the plaintiff, Chad Marsh, alleges
that the defendant Massachusetts Coastal Railroad LLC (MCR) paid
him less than the prevailing wage on State public works
projects, including a project to restore commuter rail service
between Boston and southeastern Massachusetts (South Coast Rail
project). On appeal from the denial of their motion to dismiss,
MCR, a railroad company, and its managing officer, the defendant
P. Chris Podgurski, contend that the Interstate Commerce
Commission Termination Act, 49 U.S.C. § 10501 (ICCTA), which
provides that the remedies set forth in the ICCTA "with respect
to regulation of rail transportation are exclusive and preempt
the remedies provided under Federal or State Law," 49 U.S.C.
3
§ 10501(b), preempts the Prevailing Wage Act. As a result, they
assert that the Commonwealth is precluded from enforcing the Act
to ensure that laborers engaged in public works projects are
paid a prevailing wage by the Commonwealth's contractors where
the contractor that wins the bid for a contract is a railroad
company.
Because the defendants' argument is unsupported by the
plain language of the ICCTA, and because the argument runs
counter to the long-established principle that, in the absence
of a clear expression otherwise, we must presume that Congress
did not intend to preempt a State's exercise of its historic
police powers, we conclude that the defendants have failed to
show that the Prevailing Wage Act is preempted. Further
concluding that the defendants also have not shown that the Act
is preempted under either the field or conflict preemption
doctrines and that, at this stage of the litigation, Marsh's
allegation that he performed qualifying work on a public works
project covered by the Prevailing Wage Act plausibly suggests a
right to relief under the Act, we affirm.2
1. Background. "We recite the facts asserted in the
amended complaint, taking them as true for purposes of
2 We acknowledge the amicus brief submitted by the American
Short Line and Regional Railroad Association.
4
evaluating the motion to dismiss." Edwards v. Commonwealth, 477
Mass. 254, 255 (2017).
a. Complaint's allegations. MCR is "a railroad company
specializing in integrated rail freight and logistics services
that completes public works projects throughout Massachusetts."
Podgurski is "an officer or agent having the management of MCR,"
who "participated to a substantial [degree] in formulating the
policies of the company." In June 2019, MCR hired Marsh as an
equipment operator.
During Marsh's employment, MCR entered into contracts with
the Commonwealth to complete "integrated rail freight and
logistics projects," including the South Coast Rail project, the
purpose of which was to "restore commuter rail service between
Boston and southeastern Massachusetts"; Marsh alleges that
"these projects constituted public works projects and/or public
works to be constructed within the meaning of . . . G. L.
c. 149, §§ 27, 27F." In connection with these projects, Marsh
operated certain construction vehicles and equipment.3 He was
paid an hourly rate that was less than the applicable prevailing
wage rate for his work. In June 2021, Marsh resigned.
3 Marsh operated boom trucks, backhoes, and loaders to
unload materials on site. He also used a backhoe to dig, and he
used a tamper to tamp stone to lift and level railway tracks.
In operating the equipment, Marsh made "additions and/or
alterations to public property and/or public works."
5
b. Procedural history. Marsh commenced the present action
against the defendants, seeking relief related to MCR's failure
to pay him the prevailing wage for his work on public works
projects. In particular, he alleges that he was entitled to a
prevailing wage as an operator of vehicles and equipment engaged
in public works projects, under G. L. c. 149, § 27F,4 and as a
laborer performing a construction job on public works projects,
under G. L. c. 149, § 27.5 He contends that the defendants
4 General Laws c. 149, § 27F, provides that
"[n]o agreement of lease, rental or other arrangement, and
no order or requisition under which a truck or any
automotive or other vehicle or equipment is to be engaged
in public works by the [C]ommonwealth . . . shall be
entered into or given by any public official or public body
unless said agreement, order or requisition contains a
stipulation requiring prescribed rates of wages, as
determined by the commissioner [of the Department of Labor
Standards (DLS), see G. L. c. 149, § 1], to be paid to the
operators of said trucks, vehicles or equipment" (emphasis
added).
The § 27F claim was brought only against MCR.
5 General Laws c. 149, § 27, provides that
"[p]rior to awarding a contract for the construction of
public works, [a] public official or public body shall
submit to the commissioner [of DLS] a list of the jobs upon
which . . . laborers are to be employed, and shall request
the commissioner to determine the rate of wages to be paid
on each job."
Contractors engaged by the Commonwealth to perform work on
public works construction projects must "annually obtain updated
rates from the public official or public body[,] and no
contractor or subcontractor shall pay less than the rates so
established" (emphasis added). Id. "Whoever shall pay less
6
violated these provisions of the Prevailing Wage Act by failing
to pay him the prevailing wage for his work,6 and further
violated the Fair Minimum Wage Act, G. L. c. 151, §§ 1A, 1B,7 by
failing to use the prevailing wage as the basis for calculating
his overtime wages. He also alleges that, because he was not
paid the full amount due for each pay period during which he
should have been paid the prevailing wage, the defendants
violated the requirement of the Wage Act, G. L. c. 149, § 148,8
than said rate or rates of wages . . . on said works . . . shall
have violated this section and shall be punished or shall be
subject to a civil citation or order." Id.
6 General Laws c. 149, § 27F, provides a private right of
action for "for any damages incurred, and for any lost wages and
other benefits" to operators of "equipment . . . engaged in
public works by the [C]ommonwealth" who "claim[] to be
aggrieved" by violations of the Prevailing Wage Act; G. L.
c. 149, § 27, affords the same private right of action to
laborers on public works.
7 General Laws c. 151, § 1A, provides that, aside from
certain exceptions,
"no employer in the [C]ommonwealth shall employ any of his
employees in any occupation . . . for a work week longer
than forty hours, unless such employee receives
compensation for his employment in excess of forty hours at
a rate not less than one and one half times the regular
rate at which he is employed" (emphasis added).
General Laws c. 151, § 1B, provides a private right of action
for employees who are paid less than the overtime rate of
compensation.
8 The Wage Act provides, in relevant part, that
"[e]very person having employees in his service shall pay
weekly or bi-weekly each such employee the wages earned by
7
that he receive earned wages timely.9 Finally, Marsh alleges
that, following his resignation, MCR failed to pay him timely
for his accrued paid time off and approximately eight hours of
work. When he received both payments, he was not compensated
fully by the tardy payments.10
The defendants filed a motion to dismiss on the basis that
Marsh's claims, which depend on the applicability of the
Prevailing Wage Act, failed because the Prevailing Wage Act was
preempted. Alternatively, the defendants maintained that
dismissal was warranted because MCR's contracts with the
Commonwealth did not involve "public works" projects governed by
him to within six days of the termination of the pay period
during which the wages were earned if employed for five or
six days in a calendar week . . . but any employee leaving
his employment shall be paid in full on the following
regular pay day, and, in the absence of a regular pay day,
on the following Saturday" (emphasis added).
G. L. c. 149, § 148, first par. It further provides that "[t]he
word 'wages' shall include any holiday or vacation payments due
an employee under an oral or written agreement." Id.
9 The defendants do not address, nor do we reach, the issue
whether recovery under the Wage Act is permissible under the
circumstances alleged in the complaint. See Donis v. American
Waste Servs., LLC, 485 Mass. 257, 269 (2020) ("Where . . . the
sole basis for [the employees'] claim is a violation of the
Prevailing Wage Act, the [employees] may not restate their
claims under the Wage Act to evade the limitations of the
Prevailing Wage Act on the scope of potentially liable
defendants").
10See Reuter v. Methuen, 489 Mass. 465, 466 (2022)
(employer is responsible for trebled amount of late wages under
Wage Act).
8
the Prevailing Wage Act. In a thorough and thoughtful decision,
the Superior Court judge denied the motion, as well as the
defendants' subsequent motion for reconsideration. The
defendants filed a notice of appeal from the denial of both
motions, and we transferred the case to this court on our own
motion.
2. Discussion. a. Standard of review. "We review the
denial of a motion to dismiss under Mass. R. Civ. P.
12 (b) (6)[, 365 Mass. 754 (1974),] de novo." Dunn v. Genzyme
Corp., 486 Mass. 713, 717 (2021).11 In doing so, we accept "as
true all well-pleaded facts alleged in the complaint, drawing
all reasonable inferences therefrom in the plaintiff's favor,
and determining whether the allegations plausibly suggest that
the plaintiff is entitled to relief." Lanier v. President &
Fellows of Harvard College, 490 Mass. 37, 43 (2022).
11Orders denying a motion to dismiss "generally are not
appealable until the ultimate disposition of the case because
they are not 'final orders.'" Brum v. Dartmouth, 428 Mass. 684,
687 (1999). The present appeal raises "a significant issue"
concerning the Prevailing Wage Act, which "has been briefed
fully by the parties," and "addressing it would be in the public
interest." Marcus v. Newton, 462 Mass. 148, 153 (2012). Cf.
Witty v. Delta Air Lines, Inc., 366 F.3d 380, 382 (5th Cir.
2004) (allowing interlocutory review of preemption issue). The
defendants maintain that interlocutory review is appropriate,
and Marsh does not disagree. Accordingly, we exercise our
discretion to reach the merits of the parties' arguments. See,
e.g., Dunn, 486 Mass. at 717 (granting application for
interlocutory review of denied motion to dismiss raising
preemption issue).
9
b. Prevailing Wage Act framework. The Prevailing Wage Act
is a general law12 "that concerns a subject of traditional State
regulation." Felix A. Marino Co. v. Commissioner of Labor &
Indus., 426 Mass. 458, 463 (1998). It "govern[s] the setting
and payment of wages on [certain] public works projects." Donis
v. American Waste Servs., LLC, 485 Mass. 257, 263 (2020),
quoting McCarty's Case, 445 Mass. 361, 370 (2005) (Sosman, J.,
concurring). It was enacted "to achieve parity between the
wages of workers engaged in public construction projects and
workers in the rest of the construction industry." Donis,
supra, quoting Mullally v. Waste Mgt. of Mass., Inc., 452 Mass.
526, 532 (2008).
The prevailing wage schedule, which lists the prevailing
wage for each job category on a public works project, is
determined by the commissioner of the Department of Labor
Standards (DLS), based on wages paid for similar work on the
market. McCarty's Case, 445 Mass. at 370 (Sosman, J.,
concurring), citing G. L. c. 149, § 26 (in determining schedule,
"the commissioner must take into account, and may not set rates
of wages that are less than, wage rates paid to laborers who
12See Black's Law Dictionary 1057 (11th ed. 2019) (defining
"general law" as a "[l]aw that is neither local nor confined in
application to particular persons" that "purports to apply to
all persons or places of a specified class throughout the
jurisdiction").
10
work in the same municipality, wage rates paid pursuant to
collective bargaining agreements in the construction industry,
and wage rates paid to employees working in the private
construction industry"). The commissioner's "goal is to make
[the prevailing] wage rates comparable to what is being earned
by employees performing similar jobs in other parts of the
construction industry."13 McCarty's Case, supra.
Pursuant to the Act, a contractor bidding on a public works
project is expected to use the prevailing wage rates set forth
in the Commonwealth's prevailing wage schedule to calculate the
labor costs included in its proposed bid. G. L. c. 149, § 27
(requiring public officials to incorporate schedule of
prevailing wage rates in each request for proposals for each
public works project). If selected to perform work on a public
works project, the contractor must pay, at the least, the
13"To achieve that parity, [the Act] further provides that
in calculating the rates of wages for a public works project,
the commissioner must include [not only the hourly wages, but
also] '[p]ayments by employers to health and welfare plans,
pension plans and supplementary unemployment benefit plans under
collective bargaining agreements or understandings between
organized labor and employers.'" McCarty's Case, 445 Mass. at
371 (Sosman, J., concurring), quoting G. L. c. 149, § 26. "In
other words, to establish comparable rates, the commissioner is
to consider the entire compensation package, which, under
collective bargaining agreements, often includes valuable fringe
benefits in addition to hourly cash wages. Failure to consider
those other components in the total package would produce
obvious disparity, and merely making the hourly pay rates
identical would not provide the comparable level of compensation
that § 26 seeks to achieve." McCarty's Case, supra.11
prevailing wage to its laborers on the project for the duration
of the contract with the Commonwealth. Id. (requiring that
prevailing wage schedule "be made a part of the contract for
said [public] works [projects] and shall continue to be the
minimum rate or rates of wages for said employees during the
life of the contract").14
The Prevailing Wage Act "prevents a contractor from
'offer[ing] its services [to the Commonwealth] for less than
what is customarily charged by its competitors for nonpublic
works contracts,'" Donis, 485 Mass. at 263-264, quoting
Mullally, 452 Mass. at 533, and further "protects an employee's
interest in receiving a wage commensurate with his or her
labor," Donis, supra at 263. It "has the effect of providing
all workers with comparable total compensation [to that which
laborers receive on nonpublic works projects], whatever form it
takes, and, in particular, ensures that employers have no
financial incentive to hire nonunion labor as opposed to union
14"Where th[e prevailing wage] rates have included amounts
paid for benefit packages, an employer may satisfy that part of
the required 'rate' either by making payment to and providing
the employee with the benefit plan or by 'pay[ing] the amount of
said payments directly to each employee.'" McCarty's Case, 445
Mass. at 371 (Sosman, J., concurring), quoting G. L. c. 149,
§ 27. Thus, the "benefits component of the [prevailing wage]
rate may be provided either in the form of benefits or in the
form of cash." McCarty's Case, supra.12
workers." McCarty's Case, 445 Mass. at 372 (Sosman, J.,
concurring).15
The Act embodies the Legislature's policy to govern how the
Commonwealth itself will exercise its responsibility to ensure
that employees working on a public works project are not
underpaid as a result of the competitive forces present in
public bidding contests. See Donis, 485 Mass. at 263-264. In
other words, it represents the Commonwealth's decision, through
its contracts, to dedicate public funds to the payment of wages
consistent with market conditions to employees on public works
projects.16 See id. at 262 ("For each kind of project to which
it applies, the Prevailing Wage Act provides a mechanism for
setting and enforcing minimum wage rates").
c. Preemption. With this background in mind, we turn to
consider the defendants' preemption arguments. State law is
15"The fringe benefit packages required by collective
bargaining agreements are not an expense that can be avoided by
hiring nonunion employees, as the exact same amount of money
will have to be paid –- it will simply be paid directly in cash
to the employee instead of being paid to include the employee in
a benefit program." McCarty's Case, 445 Mass. at 372 (Sosman,
J., concurring).
16Accord Friends of the Eel River v. North Coast R.R.
Auth., 3 Cal. 5th 677, 723 (2017) (environmental standards for
State projects, including rail transportation projects,
"embod[y] a [S]tate policy adopted by the Legislature to govern
how the [S]tate itself and the [S]tate's own subdivisions will
exercise their responsibilities").
13
preempted17 by Federal law when (1) the preemptive intent is
stated explicitly in the Federal law's language or implicitly
contained in its structure and purpose (express preemption),
(2) the Federal law so thoroughly occupies a legislative field
such that it is reasonable to infer that Congress left no room
for the State to supplement it (field preemption), or (3) the
State law actually conflicts with the Federal law (conflict
preemption).18 See Cipollone v. Liggett Group, Inc., 505 U.S.
504, 516 (1992); Patel v. 7-Eleven, Inc., 489 Mass. 356, 366
n.15 (2022), citing English v. General Elec. Co., 496 U.S. 72,
78-79 (1990). The "ultimate touchstone" of preemption analysis
is congressional intent, which is discerned primarily from the
language of the preemption statute and its framework.
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485–486 (1996).
Importantly, our preemption analysis is rooted in "the
assumption that the historic police powers of the States [are]
17The doctrine of preemption is rooted in the supremacy
clause of the United States Constitution, which provides that
"[t]his Constitution, and the Laws of the United States which
shall be made in Pursuance thereof . . . , shall be the supreme
Law of the Land." U.S. Const., art. VI, cl. 2.
18Conflict preemption occurs when "it is 'impossible for a
private party to comply with both [S]tate and [F]ederal
requirements,' . . . or where [S]tate law 'stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress.'" Sprietsma v. Mercury Marine, 537 U.S.
51, 64-65 (2002), quoting Freightliner Corp. v. Myrick, 514 U.S.
280, 287 (1995).
14
not to be superseded by . . . Federal Act unless that [is] the
clear and manifest purpose of Congress." Dunn, 486 Mass. at
718, quoting Cipollone, 505 U.S. at 516. The assumption is
"particularly strong [in the present context] given [S]tates'
lengthy history of regulating employees' wages and hours"
(citation omitted). Devaney v. Zucchini Gold, LLC, 489 Mass.
514, 519 (2022). See Metropolitan Life Ins. Co. v.
Massachusetts, 471 U.S. 724, 756 (1985), quoting DeCanas v.
Bica, 424 U.S. 351, 356 (1976), superseded by statute as
recognized in Kansas v. Garcia, 140 S. Ct. 791 (2020) ("States
possess broad authority under their police powers to regulate
the employment relationship to protect workers within the
State," including through State laws related to minimum and
other wages).
Recognizing that prevailing wage laws are a powerful
mechanism for States, as market participants, to direct public
policy on their own public works projects by controlling how to
spend public funds to achieve the States' policy objectives,
see, e.g., California Div. of Labor Standards Enforcement v.
Dillingham Constr., N.A., Inc., 519 U.S. 316, 332 (1997) (State
prevailing wage law provided incentive to utilize employee
apprenticeship programs on public works projects), and that such
laws fall within the "historic police powers of the States," id.
at 331, quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
15
230 (1947), the United States Supreme Court has expressed
reluctance to find a congressional intent to preempt such laws
even where Federal legislation includes a broad preemption
provision. See, e.g., Dillingham Constr., N.A., Inc., supra at
334 (rejecting argument that State's prevailing wage law was
preempted by broad preemption clause of Federal Employee
Retirement Income Security Act [ERISA], which expansively
preempted all State laws that have "connection with" or "relate
to" employee benefit plans, absent clearer indication of
congressional intent to usurp State's public works policy).
Instead, the Supreme Court has viewed with skepticism any
argument that Congress intended "to trench on the States'
arrangements for conducting their own governments," construing
Federal legislation "in a way that preserves a State's chosen
disposition of its own power, in the absence of [a] plain
statement [indicating that Congress intended to preempt the
State law]." Nixon v. Missouri Mun. League, 541 U.S. 125, 140
(2004). See, e.g., id. at 128-129 (Federal Telecommunications
Act "preempt[ing] . . . [S]tate and local laws and regulations
expressly or effectively 'prohibiting the ability of any entity'
to provide telecommunications services" did not preempt State's
power to restrict its own delivery of such services [citation
omitted]).
16
Notably, the Prevailing Wage Act is not targeted at the
railroad industry or rail transportation, an "area where there
has been a history of significant [F]ederal presence."19 Florida
E. Coast Ry. v. West Palm Beach, 266 F.3d 1324, 1328 (11th Cir.
2001), quoting United States v. Locke, 529 U.S. 89, 108 (2000).
The Act is a general law that falls within the State's
traditional police powers of wage regulation. See Felix A.
Marino Co., 426 Mass. at 463. More particularly, it falls
within the State's power to direct how it will spend public
funds to promote its policy to pay laborers wages that are
consistent with market conditions.20
Accordingly, "'[t]he principles of federalism and respect
for [S]tate sovereignty that underlie the [Supreme] Court's
reluctance to find pre-emption,' Cipollone[, 505 U.S. at 533]
(Blackmun, J., concurring), place a 'considerable burden' on"
the defendants here. Florida E. Coast Ry., 266 F.3d at 1329,
quoting De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520
19For a fuller account of the history of Federal railroad
legislation, see R.J. Corman R.R./Memphis Line v. Palmore, 999
F.2d 149, 151-152 (6th Cir. 1993).
20By contrast, where a State legislates in an area that
traditionally has been governed by Federal law and regulations,
the presumption against preemption does not apply. See Locke,
529 U.S. at 108 (State regulation of oil tanker design and
operation not entitled to presumption against preemption because
State purported to regulate maritime commerce, "where there has
been a history of significant [F]ederal presence").
17
U.S. 806, 814 (1997). See, e.g., New York Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,
658-664 (1995) (concluding that preemption clause, which
preempted State laws that "relate to" employee benefits plans
under ERISA, did not preempt State's law imposing surcharges on
commercial insurance providers despite indirect economic effect
on such plans absent clearer expression of congressional
intent).
i. Express preemption. We turn now to the defendants'
argument that the Prevailing Wage Act is preempted expressly by
the ICCTA. Where, as here, a Federal statute "contains an
express pre-emption clause, the task of statutory construction
must in the first instance focus on the plain wording of the
clause, which necessarily contains the best evidence of
Congress' pre-emptive intent." CSX Transp., Inc. v. Easterwood,
507 U.S. 658, 664 (1993). See Williams v. Taylor, 529 U.S. 420,
431 (2000) (construction "start[s] . . . with the language of
the statute").
The ICCTA vests the Surface Transportation Board (STB) with
"exclusive" jurisdiction "over (1) transportation by rail
carriers . . . and (2) the construction, acquisition, operation,
abandonment, or discontinuance of . . . tracks[] or facilities"
18
(emphasis added).21 49 U.S.C. § 10501(b). The statute's express
preemption clause provides that "the remedies provided under
this part with respect to regulation of rail transportation are
exclusive and preempt the remedies provided under Federal or
State law (emphasis added)." Id.In view of the plain language of the ICCTA's preemption
clause, Federal courts and the STB22 have concluded that
"Congress narrowly tailored the ICCTA pre-emption provision to
displace only 'regulation,' i.e., those [S]tate laws that may
reasonably be said to have the effect of 'manag[ing]' or
'govern[ing]' rail transportation." Florida E. Coast Ry., 266
F.3d at 1331, quoting Black's Law Dictionary 1286 (6th ed.
21"[T]ransportation" is expansively defined to include, in
relevant part, "(A) a . . . vehicle, . . . warehouse, . . .
property, facility, instrumentality, or equipment of any kind
related to the movement of passengers or property, or both, by
rail, regardless of ownership or an agreement concerning use;
and (B) services related to that movement." 49 U.S.C.
§ 10102(9).
22"As the agency authorized by Congress to administer the
[ICCTA], the [STB] is 'uniquely qualified to determine whether
[S]tate law . . . should be preempted' by the [ICCTA]." Green
Mountain R.R. v. Vermont, 404 F.3d 638, 642-643 (2d Cir. 2005),
quoting CSX Transp., Inc. v. Georgia Pub. Serv. Comm'n, 944
F. Supp. 1573, 1584 (N.D. Ga. 1996). See Wyeth v. Levin, 555
U.S. 555, 576-577 (2009) ("While agencies have no special
authority to pronounce on pre-emption absent delegation by
Congress, they do have a unique understanding of the statutes
they administer and an attendant ability to make informed
determinations about how [S]tate requirements may pose an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress" [quotation and citation
omitted]).
19
1990). See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50
(1987) ("common-sense view of the word 'regulates' would lead to
the conclusion that in order to regulate insurance, a law must
not just have an impact on the insurance industry, but must be
specifically directed toward that industry"); New York
Susquehanna & W. Ry. v. Jackson, 500 F.3d 238, 252 (3d Cir.
2007) ("Because the [ICCTA's] subject matter is limited to
deregulation of the railroad industry, . . . courts and the
[STB] have rightly held that it does not preempt all [S]tate
regulation affecting transportation by rail carrier"). Accord
H.R. Rep. No. 104-422, 104th Cong., 1st Sess., at 167 (1995)
(ICCTA preemption provision "is limited to remedies with respect
to rail regulation –- not State and Federal law generally");
Riverdale -- Petition for Declaratory Order -- New York
Susquehanna & W. Ry., 4 S.T.B. 380, 386 (1999) (Riverdale)
(Congress did not preempt all State laws that "affect railroads"
in any manner whatsoever). Cf. Horton vs. Kansas City S. Ry.,
Tex. Sup. Ct., No. 21-0769, slip op. at *10-11 (June 30, 2023)
(negligence claim in wrongful death action not preempted by
ICCTA even when applied to railroad).
The ICCTA does not preclude State laws that may have a
"remote or incidental effect on rail transportation." Florida
E. Coast Ry., 266 F.3d at 1331 (ICCTA's preemption clause
tailored toward "regulation of rail transportation," which
20
"necessarily means something qualitatively different from laws
'with respect to rail transportation'" [emphasis added; citation
omitted]).23 Specifically, State laws that fall within the
State's "general police powers" are not preempted by the ICCTA
even when they affect "railroad activity." Norfolk S. Ry. v.
Alexandria, 608 F.3d 150, 158 (4th Cir. 2010).24
Thus, although the defendants correctly note that Marsh
performed "construction" work on railroad tracks –- an area of
work that falls within the ICCTA's exclusive jurisdiction, see
49 U.S.C. § 10501(b) -- it is less clear whether application of
the Prevailing Wage Act to define the wages paid to construction
workers on public works projects is a preempted "regulation" of
23See Bennett v. Spear, 520 U.S. 154, 173 (1997) (under
"cardinal principle of statutory construction . . . [courts
must] give effect, if possible, to every clause and word of a
statute" [quotations and citation omitted]).
24The defendants' reliance on Bay Colony R.R. v. Yarmouth,
470 Mass. 515, 518-519 (2015), which concerned the broader
preemption provision of the Federal Aviation Administration
Authorization Act (FAAAA), is misplaced. See id. at 518,
quoting Massachusetts Delivery Ass'n v. Coakley, 769 F.3d 11, 18
(1st Cir. 2014), and Rowe v. New Hampshire Motor Transp. Ass'n,
552 U.S. 364, 370 (2008) (preemptive scope of FAAAA was
"purposefully expansive," preempting State laws "having a
connection with, or reference to, carrier rates, routes, or
services, even if the law's effect on rates, routes, or services
[was] only indirect, and irrespective of whether [the] law [was]
consistent or inconsistent with [F]ederal regulation"
[quotations omitted]).
21
rail transportation, on the one hand, or a permissible State law
with an incidental effect on railroad activities, on the other.25
In drawing the line between a local law that is a preempted
"regulation" of rail transportation and a State law that is a
permissible exercise of State's authority that incidentally
affects railroad activities, Federal courts have concluded that
"[w]hat matters is the degree to which the challenged [State
law] burdens rail transportation." New York Susquehanna & W.
Ry., 500 F.3d at 252. State laws are permissible if they do not
"interfere with or unreasonably burden railroading." Id. See
King County, WA -- Petition for Declaratory Order -- Burlington
N. R.R. -- Stampede Pass Line, 1 S.T.B. 731, 735-736 (1996)
(ICCTA's preemption clause "does not usurp the right of [S]tate
and local entities to impose appropriate public health and
safety regulation on interstate railroads," so long as those
regulations do not "'conflict with' [F]ederal regulation,
'interfere with' [F]ederal authority, or 'unreasonably burden'
interstate commerce").
On the record before us, the defendants in this case have
not shown that the Prevailing Wage Act interferes with or
unreasonably burdens railroading. Notably, the Prevailing Wage
25"[C]onstruction," for example, is commonly understood as
"[t]he act of building by combining or arranging parts or
elements," Black's Law Dictionary 391 (11th ed. 2019), not the
wages paid for the labor involved in building.
22
Act has little, if any, "adverse economic effect on aspects of
the railroads' operations." Emerson v. Kansas City S. Ry., 503
F.3d 1126, 1132 (10th Cir. 2007). The economic impact of the
Prevailing Wage Act is, by design, absorbed by the Commonwealth.
See, e.g., Friends of the Eel River v. North Coast R.R. Auth., 3
Cal. 5th 677, 723 (2017), cert. denied, 138 S. Ct. 1696 (2018)(Congress did not intend with ICCTA to "preempt a [S]tate's
adoption and use of the tools of self-governance" with its own
freight rail transportation projects "or to leave the [S]tate,
as owner, without any means of establishing the basic principles
under which it will undertake significant capital
expenditures"). Specifically, a contractor is expected to
calculate its labor costs using the prevailing wage schedule
published by the DLS in its bid. The prevailing wage schedule
becomes part of the winning bidder's contract with the
Commonwealth; and the contractor must pay its laborers the
relevant prevailing wage, presumably using the revenues it
receives from the State. See Anzivino, Are the States'
"Prevailing Wage Laws" Constitutional?, https://www.scholarship
.law.marquette.edu/cgi/viewcontent.cgi?article=1407&context=
facpub [https://perma.cc/3HM5-XSG5] (under State prevailing wage
laws, State "pays a premium for construction work done on public
projects and, in consideration of such premium, requires all
23
contractors working on these projects to pay their employees
'prevailing wages' in the construction industry").26
Indeed, no railroad is required to bid on a public works
project; when a railroad voluntarily chooses to submit a bid, it
is some evidence that the railroad has determined that
compliance with the Prevailing Wage Act does not unreasonably
burden its railroading activities. The decision of the United
States Court of Appeals for the Fourth Circuit in PCS Phosphate
Co. v. Norfolk S. Corp., 559 F.3d 212, 221 (4th Cir. 2009), is
instructive. In PCS Phosphate Co., a railroad entered a
contract with a mine owner, agreeing to pay to relocate rail
lines that served the mine. Id. at 215. The railroad failed to
pay, and, in response to the owner's subsequent claim for breach
of contract, argued that the contract claim was preempted by the
ICCTA. Id. at 216-217. The Fourth Circuit disagreed,
concluding that enforcement of the railroad's voluntary
agreements with the owners was not "regulation" expressly
preempted by the ICCTA. Id. at 218. The court rejected the
26Contrary to the defendants' argument that the increased
cost of paying prevailing wages to MCR's laborers burdens MCR's
operations, nothing in the present record suggests payment of a
prevailing wage would pose an undue burden. Cf. Holland v.
Delray Connecting R.R., 311 F. Supp. 2d 744, 755, 757 (N.D. Ind.
2004) (denying motion to dismiss on ICCTA preemption question
where "devastating degree of [Federal Coal Industry Retiree
Health Benefit Act's] impact poses a factual question on which
[the railroad] must offer proof").
24
railroad's contention that the ICCTA expressly preempted all
voluntary agreements concerning rail transportation, determining
that the argument was unsupported by the purpose of the ICCTA to
deregulate the railroad industry. Id. at 219.
Enforcement of the parties' agreements, the Fourth Circuit
concluded, would not "unreasonably interfer[e] with rail
transportation" (quotation and citation omitted) because the
agreements "were freely negotiated between sophisticated
business parties" and "reflect[ed] a market calculation that the
benefits of operating the rail line for many years would be
worth the cost of paying to relocate the line in the future."27
PCS Phosphate Co., 559 F.3d at 220-221. "In the context of
voluntary agreements, [courts] let the market do much of the
work of the benefit-burden calculation." Id. at 221. The court
also noted, "[a]s the STB has recognized, 'voluntary agreements
must be seen as reflecting the carrier's own determination and
admission that the agreements would not unreasonably interfere
with interstate commerce.'" Id., quoting Woodbridge vs.
Consolidated Rail Corp., 5 S.T.B. 336, 340 (2000). Thus, the
court concluded that enforcement of valid voluntary agreements
between private parties did not "fall into the core of economic
27For this reason, the Fourth Circuit also rejected the
argument that enforcement of the agreements was impliedly
preempted by the ICCTA. PCS Phosphate Co., 559 F.3d at 220-221.
25
regulation that the ICCTA was intended to preempt" and was
therefore not preempted by the ICCTA. PCS Phosphate Co., supra
at 219. Accord Friends of the Eel River, 3 Cal. 5th at 723(enforcement of State environmental standards on State public
works projects was not "regulation" preempted by ICCTA).
Like the terms of the contracts held to be enforceable
despite the ICCTA's express preemption clause in PCS Phosphate
Co., 559 F.3d at 221, the Prevailing Wage Act sets forth
contractual terms governing public works projects voluntarily
agreed to by the contractor, here, a railroad. Each contract
reflects the railroad's determination, based on market
conditions, that agreeing to pay its laborers the prevailing
wage in exchange for the revenues it will receive from the
Commonwealth for the public works project is "worth" it. Id.28
Contrary to the defendants' argument, where a railroad
voluntarily bids on a public works contract, and then freely
agrees to public works project contractual provisions with
prevailing wage rate schedules incorporated therein, that choice
28 The fact that, as here, one party to the contract is a
subdivision of a State does not alter our conclusion. See
Building & Constr. Trades Council of the Metro. Dist. v.
Associated Bldrs. & Contrs. of Mass./R.I., Inc., 507 U.S. 218,
231-232 (1993) ("In the absence of any express or implied
indication by Congress that a State may not manage its own
property when it pursues its purely proprietary interests, and
where analogous private conduct would be permitted, [the United
States Supreme Court] will not infer such a restriction").
26
supports the contention that the railroad has determined that
the benefits of completing the project outweigh the cost,
including the cost of paying prevailing wages to its workers.29
Moreover, the Prevailing Wage Act is akin to the type of
State law that other Federal courts and the STB have concluded
are not preempted by the ICCTA. Specifically, the Prevailing
Wage Act "concerns a subject of traditional State regulation."
Felix A. Marino Co., 426 Mass. at 463. Accord Dilts v. Penske
Logistics, LLC, 769 F.3d 637, 646 (9th Cir. 2014) ("generally
applicable background regulations that are several steps removed
from prices, routes, or services, such as prevailing wage laws
or safety regulations, are not preempted, even if employers must
factor those provisions into their decisions about the prices
that they set, the routes that they use, or the services that
29Nor does "[t]he fact that the statute may prevent the
[r]ailroad from maximizing its profits . . . render the statute
unreasonably burdensome" and thus preempted. Adrian &
Blissfield R.R. v. Blissfield, 550 F.3d 533, 541 (6th Cir.
2008). See Florida E. Coast Ry., 266 F.3d at 1338 n.11 ("No
statement of purpose for the ICCTA, whether in the statute
itself or in the major legislative history, suggests that any
action which prevents an individual firm from maximizing its
profits is to be pre-empted"). "Although the 'costs of
compliance' with a [S]tate law could be high, 'they are
"incidental" when they are subordinate outlays that all firms
build into the cost of doing business.'" Adrian & Blissfield
R.R. supra, quoting New York Susquehanna & W. Ry., 500 F.3d at
254. In fact, the Prevailing Wage Act furthers the ICCTA's
statement that "[i]n regulating the railroad industry, it is the
policy of the United States Government . . . to encourage fair
wages and safe and suitable working conditions in the railroad
industry." 49 U.S.C. § 10101(11).
27
they provide"); People v. Pac Anchor Transp., Inc., 59 Cal. 4th
772, 786-787 (2014), cert. denied, 574 U.S. 1153 (2015)
(identifying State prevailing wage law as generally applicable
law).
The Prevailing Wage Act is "settled and defined," Green
Mountain R.R. v. Vermont, 404 F.3d 638, 643 (2d Cir.), cert.
denied, 546 U.S. 977 (2005); it sets forth the process by which
a prevailing wage schedule for labor performed on public works
is created and incorporated into public works contracts between
the Commonwealth and its contractors, see G. L. c. 149, § 27
(commissioner of DLS determines prevailing wage schedule for
public works, which is incorporated into call for bids, and then
"[s]aid [prevailing wage] schedule shall be made a part of the
contract for said works"). It "can be obeyed with reasonable
certainty," Green Mountain R.R., supra, by paying laborers
according to the prevailing wage schedule, see G. L. c. 149,
§ 27 ("schedule . . . shall continue to be the minimum rate or
rates of wages for said employees during the life of the
contract").
Compliance with the Act does not "entail . . . extended or
open-ended delays." Green Mountain R.R., 404 F.3d at 643.
Pursuant to the Prevailing Wage Act, contractors bidding on
public works projects are aware of the schedule of prevailing
wages, and if they choose to bid on the project, they are
28
expected to use the schedule in computing labor costs to include
in their bids. G. L. c. 149, § 27.
The Prevailing Wage Act involves no "discretion on
subjective questions." Green Mountain R.R., 404 F.3d at 643.
Contrast id. (ICCTA preempted environmental land use law because
"railroad [would be] restrained from development until a permit
[was] issued; the requirements for the permit [were] not set
forth in any schedule or regulation that the railroad [could]
consult in order to assure compliance; and the issuance of the
permit await[ed] and depend[ed] upon the discretionary rulings
of a [S]tate or local agency").
Furthermore, unlike State laws that Federal courts and the
STB have determined to be preempted, the Prevailing Wage Act is
not a permitting or preclearance process that could prevent,
interfere with, or delay rail operations.30 See Riverdale, 4
30The STB and Federal courts have determined that, where a
State permitting or preclearance process "could be used to
frustrate or defeat an activity that is regulated at the Federal
level, the [S]tate . . . process is preempted." New York
Susquehanna & W. Ry., 500 F.3d at 253, quoting Auburn & Kent,
Wash. -– Petition for Declaratory Order -– Burlington N. R.R. –-
Stampede Pass Line, 2 S.T.B. 330, 339 (1997). See, e.g., Green
Mountain R.R., 404 F.3d at 643 (ICCTA preempted preconstruction
permitting requirement of State environmental land use law as
applied to railroad transloading facility because it gave "the
local body the ability to deny the carrier the right to
construct facilities or conduct operations," activities falling
within plain language of STB's jurisdictional grant [citation
omitted]); Auburn v. United States, 154 F.3d 1025, 1031 (9th
Cir. 1998), cert. denied, 527 U.S. 1022 (1999) (ICCTA preempted
city environmental impact permitting requirements because they
29
S.T.B. at 386-389 (contrasting uniform building, plumbing, and
electric codes, which generally are not preempted because they
do not interfere with railroad operations, with local zoning
ordinances, land use regulations, and environmental permitting
requirements, which are preempted because they unreasonably
prevent, delay, or interfere with activities protected by
ICCTA).
Nor does the Act regulate the operational aspects of rail
transportation, affecting the movement of property or passengers
over the rail lines.31 See Emerson, 503 F.3d at 1131 (railroad's
could be applied so as to prevent railroad "from constructing,
acquiring, operating, abandoning, or discontinuing a line"); Soo
Line R.R. v. Minneapolis, 38 F. Supp. 2d 1096, 1101 (D. Minn.
1998) (ICCTA preempted city's authority to withhold demolition
permits sought by railroad to redevelop rail yard); Burlington
N. Santa Fe Corp. v. Anderson, 959 F. Supp. 1288, 1292, 1296 (D.
Mont. 1997) (ICCTA preempted Montana law giving State commission
control over "maintenance, closure, consolidation[,] or
centralization of railroad shipping facilities, stations[,] and
station agencies" within State); CSX Transp., Inc., 944 F. Supp.
at 1581-1582 (State statute requiring preapproval for closing of
railroad agencies, which, inter alia, provided "services"
concerning the movement of property and passengers via rail,
preempted by ICCTA).
31Federal courts also have determined that State laws that
interfere with the actual operational aspects by which railroad
carriers move passengers or property are preempted. See
Emerson, 503 F.3d at 1132 (ICCTA preempts State laws that "would
have an adverse economic effect on aspects of the railroads'
operations that are within the STB's exclusive jurisdiction"
[emphasis added]). See, e.g., Friberg v. Kansas City S. Ry.,
267 F.3d 439, 440, 443 (5th Cir. 2001) (State statute
prohibiting train from blocking street for more than five
minutes, as well as common-law negligence claim, each seeking to
prescribe railroad's operation and its construction and
30
discarding of old railroad ties and vegetation into drainage
ditch was not "transportation" and, thus, ICCTA's preemption
clause did not preclude State tortious claims by landowners
whose property was flooded by railroad's tortious conduct).
Accordingly, the Prevailing Wage Act is not expressly preempted
by the ICCTA.32 See PCS Phosphate Co., 559 F.3d at 221.
operation of side track, were preempted because "[r]egulating
the time a train can occupy a rail crossing impacts . . . the
way a railroad operates its trains, with concomitant economic
ramifications"); Association of Am. R.R. vs. South Coast Air
Quality Mgt. Dist., U.S. Dist. Ct., No. CV 06-01416-JFW (PLAx)
(C.D. Cal. Apr. 30, 2007), aff'd, 622 F.3d 1094 (9th Cir. 2010)
(regulation limiting idling time of unattended locomotives to
thirty minutes or less was preempted because it "directly
regulate[d] rail operations"); Engelhard Corp. v. Springfield
Terminal Ry., 193 F. Supp. 2d 385, 389-390 (D. Mass. 2002)
(claims for unpaid freight car mileage allowances were preempted
because STB has statutory authority to establish third-party
freight car rates of compensation); Rushing v. Kansas City S.
Ry., 194 F. Supp. 2d 493, 500-501 (S.D. Miss. 2001) (ICCTA
preempted State nuisance and negligence claims brought to quell
noise and vibrations emanating from railroad's switching yard
because they sought "to enjoin the [railroad] from operating its
switch yard in the manner it currently employs"); CSX Transp.,
Inc. v. Plymouth, 92 F. Supp. 2d 643, 659 (E.D. Mich. 2000)
(State law limiting time railroad blocks traffic, and requiring
railroad to incur capital improvements on tracks to avoid same,
preempted by ICCTA).
32Marsh alleges that he worked on projects, such as the
South Coast Rail project, which he contends expressly fall
outside the STB's jurisdiction. In particular, the ICCTA
provides that the STB does not have jurisdiction over "public
transportation provided by a local government authority." 49
U.S.C. § 10501(c)(2). A "local government authority" includes
contractors, like MCR, who contract with a political subdivision
or a State "to provide transportation services." 49 U.S.C.
§ 10501(c)(1)(A). In light of the foregoing, we need not reach
whether application of the Prevailing Wage Act is permitted, at
31
ii. Field preemption. We next consider the defendants'
contention that Congress has impliedly preempted the Prevailing
Wage Act,33 turning first to field preemption. See Freightliner
Corp. v. Myrick, 514 U.S. 280, 289 (1995) (express preemption
clause supports inference against, but does not necessarily
foreclose, implied preemption). See, e.g., Florida E. Coast
Ry., 266 F.3d at 1329 n.3 (evaluating implied preemption claim
despite concluding ICCTA preemption clause did not expressly
preempt city's zoning and licensing ordinances).34
the least with regard to Marsh's work on the South Coast Rail
project, for this additional reason.
33"When Congress has considered the issue of pre-emption
and has included in the enacted legislation a provision
explicitly addressing that issue, and when that provision
provides a 'reliable indicium of congressional intent with
respect to [S]tate authority,'" Cipollone, 505 U.S. at 517,
quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978),
"'there is no need to infer congressional intent to pre-empt
[S]tate laws from the substantive provisions' of the
legislation," Cipollone, supra, quoting California Fed. Sav. &
Loan Ass'n v. Guerra, 479 U.S. 272, 282 (1987). "Such reasoning
is a variant of the familiar principle of expression unius est
exclusio alterius: Congress'[s] enactment of a provision
defining the pre-emptive reach of a statute implies that matters
beyond that reach are not pre-empted." Cipollone, supra.34Federal cases considering implied preemption despite the
existence of an express preemption provision understandably have
focused on conflict preemption. See, e.g., Freightliner Corp.,
514 U.S. at 288-289; Florida E. Coast Ry., 266 F.3d at 1329 n.3.
We nonetheless consider the defendants' argument that the
Prevailing Wage Act is preempted under the doctrine of field
preemption, as the defendants' arguments in this regard
apparently do not rely on the ICCTA or its statutory framework.
32
Field preemption occurs where "[F]ederal law so thoroughly
occupies a legislative field as to make reasonable the inference
that Congress left no room for the States to supplement it"
(quotation and citation omitted). Cipollone, 505 U.S. at 516.
"Where . . . the field which Congress is said to have pre-empted
includes areas that have been traditionally occupied by the
States, congressional intent to supersede [S]tate laws must be
clear and manifest" (quotations and citation omitted). English,
496 U.S. at 79. See, e.g., Terminal R.R. Ass'n of St. Louis v.
Brotherhood of R.R. Trainmen, 318 U.S. 1, 6 (1943) (Railway
Labor Act did not occupy field of railroad working conditions
where it did not "undertake governmental regulation of wages,
hours, or working conditions," but instead sought to "provide a
means by which agreement may be reached with respect to them").
"In order to determine whether Congress has implicitly
ousted the States from regulating in a particular field, we must
first identify the field in which this is said to have
occurred." Garcia, 140 S. Ct. at 804. Even assuming arguendo
that, here, the field is the wages of railroad employees, as
opposed to wages paid on public works projects, see, e.g.,
Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 761, 765 (7th
Cir. 2008) (identifying field as "overtime wages for railroad
employees"); R.J. Corman R.R./Memphis Line v. Palmore, 999 F.2d
149, 151 (6th Cir. 1993) (identifying field as "overtime
33
regulation of interstate railroads"); Alvarez vs. Anacostia Rail
Holdings Co., N.Y. Sup. Ct., No. 157154/2021 (Oct. 28, 2022)
(noting parties' "agree[ment] that the field at issue is the
wages and hours of railroad employees"), the defendants have not
demonstrated that the field is preempted by Federal law.
Despite the plethora of Federal statutes governing
railroads, see R.J. Corman R.R./Memphis Line, 999 F.2d at 151-
152, the only Federal law specifically relied on by the
defendants that addresses railroad workers' wages is the Adamson
Act of 1916, Pub. L. No. 64-252, 64th Cong., 1st Sess., c. 436,
§ 3, 39 Stat. 721 (Adamson Act), which temporarily "forb[ade]
any lowering of wages" to avert a nationwide railroad union
strike.35 Wilson v. New, 243 U.S. 332, 345 (1917). At the time,
railroads had rejected the unions' demanded reduction in
railroad employees' work hours from ten hours to eight, and an
increase in overtime pay, id. at 340-341; Federal mediation
efforts had failed, id. at 342. Facing a national crisis, the
President of the United States requested that Congress enact
35We note that the defendants' sole reference to the
Adamson Act appears in a quotation from Sumlin vs. BNSF Ry.,
U.S. Dist. Ct., No. EDCV 17-2364-JFW (KKx) (C.D. Cal. Apr. 10,
2018). Although that case discusses the Adamson Act, the State
laws at issue there fell within a field –- "regulation of
working hours and rest for train employees" –- that was occupied
by Federal law where the Federal Hours of Service Act, Pub. L.
No. 59-274, 59th Cong., c. 2939, 34 Stat. 1415 (1907), required
that train employees be provided with rest periods of at least
ten consecutive hours prior to working. Sumlin, supra.
34
legislation to prevent a strike. Id. Congress responded by
enacting the Adamson Act, which, inter alia (1) established an
eight-hour work day for railroad workers; (2) authorized the
creation of a commission to study the effects of the eight-hour
standard work day and report its findings; and (3) pending the
release of the report, and for a period of thirty days
thereafter, temporarily prohibited the lowering of wages. Id.
at 343-344, citing Pub. L. No. 64-252, c. 436, §§ 1-3, 39 Stat.
721. In sum, the Adamson Act's regulation of railroad wages was
limited to an eleven-month period between 1916 and 1917, until
such time as a report could be issued that considered whether
the eight-hour workday would affect railroads' profitability and
whether Federal regulations on rates charged by the railroads
should be adjusted to compensate the railroads for any
additional labor costs. See Wilson, supra at 345-346.
Relying principally on the Adamson Act, the United States
Courts of Appeals for the Sixth and Seventh Circuits have
determined that State overtime wage laws as applied to railroad
workers were preempted under the doctrine of field preemption.
See Wisconsin Cent., Ltd., 539 F.3d at 765 (Illinois overtime
wages statute as applied to railroad workers preempted); R.J.
Corman R.R./Memphis Line, 999 F.2d at 152 & n.3, 153 (Kentucky
overtime wages statute preempted as to railroad workers).
Specifically, the courts read the Supreme Court's decision in
35
Wilson to conclude that the Adamson Act evinced Congress's
intent to leave wages to the free market negotiations between
railroads and their employees, preempting State overtime
statutes. See Wisconsin Cent., Ltd., supra (stating that
Supreme Court in Wilson indicated that Congress intended to
leave railroad workers' wages "free" from any regulation
following temporary restriction on lowering of wages); R.J.
Corman R.R./Memphis Line, supra (relying on Wilson for
proposition that Congress intended with Adamson Act to leave
railroad worker compensation to labor agreements).
But a closer review of the Supreme Court's decision in
Wilson shows that the Court did not determine that the Adamson
Act mandated a laissez faire approach to wage negotiations
between railroads and employees. The Court addressed only the
question whether the mandatory eight-hour day and the temporary
restriction on the lowering of wages were constitutional as a
permissible exercise of Congress's authority to regulate
interstate commerce. Wilson, 243 U.S. at 340, 345-346. The
Court's statement that the Adamson Act's restriction on the
lowering of railroad employees' wages was "not permanent but
temporary, leaving the employers and employees free as to the
subject of wages to govern their relations by their own
agreements after the specified time," id. at 345-346, was
relevant to the Court's analysis of whether Congress had
36
exceeded its commerce clause authority. Contrary to the
conclusion of the Sixth and Seventh Circuits, the Supreme
Court's statement was not a determination of Congress's intent
to occupy the field of railroad workers' wages; indeed, the
prevailing view at the time was that "allowing the parties to
freely bargain the price of labor was a more enlightened theory
when compared with price caps and maximum wage limits that
previously existed in English statutes." Alvarez, N.Y. Sup.
Ct., No. 157154/2021.
More importantly, as discussed supra, the Adamson Act
prohibited the lowering of railroad employee wages temporarily
in an effort to avert a strike, which would have been
catastrophic. The temporary restriction on the lowering of
wages was accompanied by a mandate to study the effects on the
railroad industry of an eight-hour workday. See Wilson, 243
U.S. at 344. Nothing in the legislation or its surrounding
circumstances supports the conclusion that Congress intended by
the statute to forever ban State laws regarding minimum wages as
applied to railroad workers, much less a ban on State prevailing
wage laws. See Alvarez, N.Y. Sup. Ct., No. 157154/2021.
Moreover, the Supreme Court consistently has held that
although Congress can create a "federally mandated free-market
control" scheme, it cannot do so "subtly." Puerto Rico Dep't of
Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 500
37
(1988). See id. at 502-503 (local gasoline price regulation was
not preempted by field preemption despite Congress's passage and
subsequent repeal of Federal legislation providing for price
controls on petroleum products because congressional action did
not evince intent for federally mandated free market). Rather,
the Supreme Court has instructed "that the historic police
powers of the States were not to be superseded by the Federal
Act unless that was the clear and manifest purpose of Congress"
(citation omitted). Id. at 500. See Hawaiian Airlines, Inc. v.
Norris, 512 U.S. 246, 252 (1994), quoting Fort Halifax Packing
Co. v. Coyne, 482 U.S. 1, 21 (1987) (employee's wrongful
discharge action not preempted by mandatory arbitration
provision of Federal Railway Labor Act because "[p]re-emption of
employment standards 'within the traditional police power of the
State' 'should not be lightly inferred'").
The same conclusion portends here. Nothing in the
temporary wage reduction restriction in 1916 evinces a
congressional intent to occupy the field of railroad employee
wages or to preempt any State laws securing wage protections for
railroad employees on public works projects.36
36This conclusion in no way suggests that we have canvassed
the entirety of Federal railroad regulation; we have reviewed
only the arguments and Federal statutes presented to us in the
defendants' briefs.
38
iii. Conflict preemption. We turn next to the defendants'
argument that the Prevailing Wage Act is preempted under the
doctrine of conflict preemption. Conflict preemption occurs if
"compliance with both [S]tate and [F]ederal law is impossible
. . . or when the [S]tate law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives
of Congress" (quotation and citation omitted). Michigan Canners
& Freezers Ass'n v. Agricultural Mktg. & Bargaining Bd., 467
U.S. 461, 469 (1984).
The defendants maintain that the Prevailing Wage Act
conflicts with the Davis-Bacon Act, 23 U.S.C. § 113, which
requires that contractors on federally funded construction
projects pay certain employees the prevailing wage rate, at a
minimum, for their job classification as determined by the
Federal Secretary of Labor. See 40 U.S.C. §§ 3141-3148. The
defendants assert that requiring State prevailing wages to be
paid on State public works projects would conflict with the
Federal Department of Transportation's determination that the
Davis-Bacon Act's prevailing wage requirements for federally
funded projects do not apply to federally funded railroad
projects. See United States Department of Transportation,
Federal Highway Administration, Memorandum on Utility and
Railwork –- Wage Rate and EEO Requirements (May 15, 1985).
39
We are persuaded by the Seventh Circuit's analysis in Frank
Bros. v. Wisconsin Dep't of Transp., 409 F.3d 880, 895-897 (7th
Cir. 2005), which rejected a similar argument. In particular,
the Seventh Circuit addressed the contractor's contention that
its compliance with the State's prevailing wage act in
connection with wages paid to truck drivers on State public
works projects conflicted with the determination that truck
drivers were excluded from those employees to whom contractors
must pay, at a minimum, the federally determined prevailing wage
on federally funded projects under the Davis-Bacon Act. Id. at
894. Declining to adopt the contractor's argument, the court
explained that the purpose of the Davis-Bacon Act was to protect
workers by setting a "floor" for the wage to be paid to workers
on federally funded public works. Id. at 897. "[N]othing in
the Davis-Bacon Act . . . specifically or expressly prohibit[ed]
paying truck drivers a prevailing wage." Id. "Were this court
to hold that Wisconsin was precluded from requiring that truck
drivers are paid a minimum wage, we would not be advancing the
goals of Congress in any meaningful way; indeed, we may even be
doing damage to those objectives." Id. at 896. The State's
"prevailing wage legislative scheme is supplemental in nature
and thus there is nothing barring [the contractor] from
complying with both [F]ederal and [S]tate law," the court
40
reasoned. Id. at 897. The same is true for railroad workers
working on the Commonwealth's public works projects.37
d. Public works projects. Finally, the defendants assert
that Marsh's Prevailing Wage Act claims must be dismissed
because the projects on which Marsh worked were not public
works; in particular, they maintain that MCR's agreement with
the Commonwealth was not the result of a competitively
advertised and bidding process, that the project was not awarded
to the lowest bidder, that the Massachusetts Department of
Transportation (MassDOT) did not incorporate a prevailing wage
schedule into the agreement, and that the work was not a
37The defendants also maintain that Marsh's claims violate
the dormant commerce clause. See Northeast Patients Group v.
United Cannabis Patients & Caregivers of Me., 45 F.4th 542, 545
(1st Cir. 2022), quoting South-Cent. Timber Dev., Inc. v.
Wunnicke, 467 U.S. 82, 87 (1984) (commerce clause is also "a
negative, 'self-executing limitation on the power of the States
to enact laws [that place] substantial burdens on [interstate]
commerce'"). See also National Pork Producers Council v. Ross,
143 S. Ct. 1142 (2023), quoting Department of Revenue of Ky. v.
Davis, 553 U.S. 328, 337-338 (2008) ("the [c]ommerce [c]lause
prohibits the enforcement of [S]tate laws 'driven by . . .
"economic protectionism –- that is, regulatory measures designed
to benefit in-[S]tate economic interests by burdening out-of-
[S]tate competitors"'"). Nothing in the defendants' cursory
arguments in this regard establishes that requiring workers on
State public works projects be paid, at a minimum, a prevailing
wage burdens interstate commerce or, in any manner,
discriminates against out-of-State vendors. See Pascazi v.
Gardner, 106 A.D.3d 1143, 1145 (N.Y. 2013) ("Petitioner's claim
that the prevailing wage law violates the dormant [c]ommerce
[c]lause is . . . unavailing as the law applies equally to in-
[S]tate and out-of-[S]tate contractors that choose to engage in
public works projects"). See also note 29, supra.
41
"utility" under G. L. c. 6C, § 44.38 Support for these
assertions, however, does not appear on the face of the
complaint.39
At this point in the litigation, Marsh need not prove that
he performed work on "public works" projects. See Lanier, 490
Mass. at 43 (at pleading stage, plaintiff need only set forth
"allegations plausibly [that] suggest that the plaintiff is
entitled to relief"). See also Mass. R. Civ. P. 8 (a), 365
Mass. 749 (1974) ("A pleading which sets forth a claim for
relief . . . shall contain [1] a short and plain statement of
the claim showing that the pleader is entitled to relief, and
[2] a demand for judgment for the relief to which he deems
himself entitled").40
38For this last proposition, the defendants cite a MassDOT
highway division opinion letter from May 1, 2015, which is not
controlling. See Mullally, 452 Mass. at 533 (deferring to DLS's
interpretation of Prevailing Wage Act).
39Accordingly, we do not reach the issue whether this
evidence, if ultimately shown by the defendants on summary
judgment or at trial, would require judgment in favor of the
defendants.
40For at least this reason, the defendants' alternative
argument, that Marsh's G. L. c. 149, § 27F, claim should be
dismissed because Marsh was not an operator of rented equipment,
is unsupportable at the motion to dismiss stage. Indeed,
§ 27F's application is not limited to operators of rental
equipment. See G. L. c. 149, § 27F.
42
In his complaint, Marsh alleges that MCR contracted with
the Commonwealth on public works projects,41 including, inter
alia, the South Coast Rail project to restore commuter rail
access,42 that he was employed by MCR and worked on such projects
as a laborer operating equipment such as backhoes, tampers, boom
trucks, and loaders,43 and that he was not paid the applicable
41The defendants do not suggest that, in certifying the
complaint, including the statement that the projects on which
Marsh worked were on "information and belief" public works
projects under G. L. c. 149, § 27, Marsh's counsel failed to
comply with their ethical responsibilities to verify the grounds
for such pleading. See Mass. R. Civ. P. 11 (a) (1), as
appearing in 488 Mass. 1403 (2021) ("The signature of any
attorney to a pleading constitutes a certificate that . . . to
the best of the attorney's knowledge, information, and belief
there is a good ground to support it").
42As alleged, the South Coast Rail project was undertaken
pursuant to a contract with MassDOT to serve a public purpose of
providing commuter transportation and included alterations to
land. See Perlera v. Vining Disposal Serv., Inc., 47 Mass. App.
Ct. 491, 493-494 (1999) ("The core concept of 'public works,' in
Massachusetts and elsewhere, is commonly expressed as involving
the creation of public improvements having a nexus to land");
Black's Law Dictionary 1606 (6th ed. 1990) (defining "[p]ublic
works" as "[w]orks, whether of construction or adaptation,
undertaken and carried out by the national, [S]tate, or
municipal authorities, and designed to subserve some purpose of
public necessity, use, or convenience; such as public buildings,
roads, aqueducts, parks, etc."). See, e.g., O'Leary v. New
Hampshire Boring, Inc., 176 F. Supp. 3d 4, 9-11 (D. Mass. 2016)
(declining to dismiss complaint alleging construction laborer on
commuter transportation project was not paid prevailing wage).
43"[C]onstruction" is broadly defined under the Prevailing
Wage Act to include "additions to and alterations of public
works." G. L. c. 149, § 27D. Marsh alleges that "[s]ome of the
work [he] performed at Public Works Projects, such as operating
a backhoe to dig and/or tampers to tamp, required additions
and/or alterations to public property and/or public works."
43
prevailing wage when he performed work on these projects. The
factual allegations "'plausibly suggest[]. . .' an entitlement
to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636
(2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007). See, e.g., O'Leary v. New Hampshire Boring, Inc., 176
F. Supp. 3d 4, 9-11 (D. Mass. 2016) (declining to dismiss claim
alleging violation of Prevailing Wage Act where complaint
averred employee did boring and drilling construction work for
employer, which had contract with MassDOT to extend
Massachusetts Bay Transportation Authority's green line, and
rejecting contention that complaint also had to allege that
MassDOT designated project as public works project, DLS issued
prevailing wage schedule, and contract was publicly bid and
advertised alongside wage schedule).44
3. Conclusion. For the foregoing reasons, we affirm the
order denying the defendants' motion to dismiss.
So ordered.
44The defendants urge us to dismiss Marsh's claims because
railroads are not an enumerated public work in G. L. c. 30,
§ 39G. See id. (listing "public ways, including bridges and
other highway structures, sewers and[] water mains, airports[,]
and other public works"). But the enumerated categories include
"other public works," and as explained, see note 42, supra,
commuter transportation construction projects can fall within
the meaning of "public works."