CHAD MARSH vs. MASSACHUSETTS COASTAL RAILROAD LLC & another. [Note 1]

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. § 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

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qualifying work on a public works project covered by the Prevailing Wage Act plausibly suggests a right to relief under the Act, we affirm. [Note 2]

1. Background. "We recite the facts asserted in the amended complaint, taking them as true for purposes of 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. [Note 3] He was paid an hourly rate that was less than the applicable prevailing wage rate for his work. In June 2021, Marsh resigned.

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

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G. L. c. 149, § 27F, [Note 4] and as a laborer performing a construction job on public works projects, under G. L. c. 149, § 27. [Note 5] He contends that the defendants violated these provisions of the Prevailing Wage Act by failing to pay him the prevailing wage for his work, [Note 6] and further violated the Fair Minimum Wage Act, G. L. c. 151, §§ 1A, 1B, [Note 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, [Note 8] that he receive

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earned wages timely. [Note 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. [Note 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 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). [Note 11] In doing so, we accept "as true all well-pleaded facts alleged in the complaint, drawing all reasonable inferences

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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).

b. Prevailing Wage Act framework. The Prevailing Wage Act is a general law [Note 12] "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 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." [Note 13] McCarty's Case, supra.

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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 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"). [Note 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 workers." McCarty's Case, 445 Mass. at 372 (Sosman, J., concurring). [Note 15]

The Act embodies the Legislature's policy to govern how the

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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. [Note 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 preempted [Note 17] 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). [Note 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] not to be superseded by . . . Federal Act unless that [is] the clear and

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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, 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]).

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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." [Note 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. [Note 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 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

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. . . and (2) the construction, acquisition, operation, abandonment, or discontinuance of . . . tracks[] or facilities" (emphasis added). [Note 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 STB [Note 22] 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. 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)

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(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 "necessarily means something qualitatively different from laws 'with respect to rail transportation'" [emphasis added; citation omitted]). [Note 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). [Note 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 rail transportation, on the one hand, or a permissible State law with an incidental effect on railroad activities, on the other. [Note 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]

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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, Wash. -- 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 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 contractors working on these projects to pay their employees 'prevailing wages' in the construction industry"). [Note 26]

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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 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." [Note 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 that, "[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 regulation that the ICCTA was intended to

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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. [Note 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 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. [Note 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

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"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 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 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

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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. [Note 30] See Riverdale, 4 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. [Note 31] See Emerson, 503 F.3d at 1131 (railroad's

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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. [Note 32] See PCS Phosphate Co., 559 F.3d at 221.

ii. Field preemption. We next consider the defendants' contention that Congress has impliedly preempted the Prevailing Wage Act, [Note 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,

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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). [Note 34]

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 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

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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. [Note 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 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 Wilson to conclude that the Adamson Act evinced Congress's

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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 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.

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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 (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. [Note 36]

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

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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).

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 reasoned. Id. at 897. The same is true for railroad workers working on the Commonwealth's public works projects. [Note 37]

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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 "utility" under G. L. c. 6C, § 44. [Note 38] Support for these assertions, however, does not appear on the face of the complaint. [Note 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"). [Note 40]

In his complaint, Marsh alleges that MCR contracted with the

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Commonwealth on public works projects, [Note 41] including, inter alia, the South Coast Rail project to restore commuter rail access, [Note 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, [Note 43] and that he was not paid the applicable 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

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alongside wage schedule). [Note 44]

3. Conclusion. For the foregoing reasons, we affirm the order denying the defendants' motion to dismiss.

So ordered.