Marsh v. Massachusetts Coastal Railroad LLC

• Court: Massachusetts Supreme Judicial Court
• Decided: August 14, 2023
• Docket: SJC 13366
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

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."