Rodney L. Bean, Esquire                                            Charles F. Donnelly, Esquire
Robert M. Steptoe, Jr., Esquire                                   Donnelly & Carbone
Steptoe & Johnson                                                     Charleston, West Virginia
Charleston, West Virginia                                           Attorney for Appellees
Attorneys for Island Creek, CONSOL
& Laurel Run

The Opinion of the Court was delivered PER CURIAM.

JUSTICE STARCHER dissents and reserves the right to file a dissenting Opinion.

JUSTICE MCGRAW dissents and reserves the right to file a dissenting Opinion.

Per Curiam:

        Through this appeal, Appellant Island Creek Coal Company (“Island Coal”) seeks a reversal of the January 3, 2000, decision of the Circuit Court of Logan County finding it liable under the West Virginia Wage Payment and Protection Act (“Act”), West Virginia Code §§ 21-5-1 to -18 (1996), for two arbitration awards and one Mine Safety and Health Administration (“MSHA”) award issued against Mutual Mining, Inc. (“Mutual Mining”) in favor of Appellees John Taylor et al.See footnote 1 ¹ After examining this issue, we determine that the lower court was in error and accordingly, reverse.

        In Conrad, this Court was asked to determine whether a lower court correctly ruled that payments required under the federal WARNSee footnote 6 ⁶ Act (for failure to give workers a full sixty-day notice and wages prior to a plant closing) were not “wages” under the Act. Disregarding the rubric used in describing the WARN payments (back pay), we considered and adopted the reasoning of other courts on this issue--that such payments are viewed as damages awarded for violation of a legislative act and not compensation for past services. Affirming the lower court's ruling, we held that the WARN payments were not “compensation for services rendered but [we]re damages designed to compensate employees for an employer's failure to provide the required sixty days' notice prior to [plant] closure.” 206 W.Va. at 50, 521 S.E.2d at 542.

        The circuit court, upon being apprised of the Conrad ruling, informed counsel that “I do not find it to have altered this decision.” By order dated January 3, 2000, the lower court awarded to Appellees the amount of $519,681.94, plus interest. Appellants do not challenge the portion of this amount which represents wages or fringe benefits owed to Appellees.See footnote 7 ⁷ Instead, they challenge the inclusion of $279,291.12 based on the fact that this amount represents moneys that were either awarded through arbitration proceedings or as a result of an MSHA proceeding. Appellants contend that Conrad prohibits collection of these amounts under the Act since such amounts are more in the nature of a “damage” award, rather than payment for labor or services. See W.Va. Code § 21-5-1(c) (defining “wages” under the Act).

        Given the differing facts underlying each of the three awards challenged by Appellants, we briefly set forth the particulars concerning the arbitration and MSHA awards at issue.

.

        Like the circuit court, Appellees treat Conrad as inapposite authority,See footnote 13 ¹³ and rely instead on a decision issued by the United States District Court of Appeals in Stump v. Cyprus Kanawha Corp., 919 F.Supp. 221 (S.D. W.Va. 1995). Appellees cite Stump for the proposition that arbitration awards can be enforced through the Act. Appellees' reliance on Stump was clearly misguidedSee footnote 14 ¹⁴ for several reasons. In deciding that preemption under the Labor Management Relations Act was not required in Stump, the district court relied on Albradco, Inc. v. Bevona, 982 F.2d 82 (2nd Cir. 1982). The New York statute being interpreted in Albradco, as Appellants note, is written in much broader terms than our Act. Rather than limiting recovery under the applicable statute to “wages,” as our Act does, the New York statute encompasses “ all debts, wages or salaries due and owing.” Id. at 84 (quoting N.Y.B.C.L. § 630(a)) (emphasis supplied). Most critical, however, is the fact that both Albradco and Stump were concerned with the issue of preemption, under either ERISA or the Labor Management Relations Act. Thus, the issue of whether an arbitration award can be enforced through a wage payment and collections act was not directly under consideration. Rather than looking to the Stump decision, the lower court should have viewed Conrad as the controlling authority since that decision, unlike Stump, directly addressed what constitutes “wages” under the Act.

        Notwithstanding its remedial purposes,See footnote 15 ¹⁵ Appellants observe that the Act, is clearly geared toward the collection of “wages.” See Farley v. Zapata Coal Corp., 167 W.Va. 630,639, 281 S.E.2d 238, 244 (1981) (stating that “[b]oth the Wage Payment and Collection Act and our mechanics' lien statutes are designed to protect the laborer and act as an aid in the collection of compensation wrongfully withheld”) (emphasis supplied). Emphasizing that the Act is not a collection mechanism for other types of debts for which alternate collection means are available, Appellants reason that, by permitting the Act to be used to collect debts other than those properly falling within its parameters, the Court would be fashioning a remedy that was not sanctioned by the Legislature and thereby wrongly subjecting entities to the punitive penalties associated with the Act's violation, such as liquidated damages and attorney's fees.See footnote 16 ¹⁶ See W.Va. Code §§ 21-5-4(e); 21-5- 12(b). 

        Both the MSHA award and the Tanzman award easily fall within the reaches of our Conrad decision. In each of those matters, the remedy fashioned was an award of back pay. Such amounts, just as in Conrad, were awarded not for “labor or services rendered,” but instead as a form of damages for violation of the collective bargaining agreement. We were clear in Conrad that amounts awarded as a form of damages do not qualify as “wages” under the Act. See 206 W.Va. at 50, 521 S.E.2d at 542.

        Less clear, however, is the Parkinson award, which concerned the award of graduated vacation pay. Appellees properly characterize graduated vacation pay as fringe benefits. See W.Va. Code § 21-5-1(l). Given the inclusion of fringe benefits within the definition of “wages,” Appellees summarily conclude that the award of graduated vacation pay is necessarily an amount they can recover under the Act. See W.Va. Code §§  21-5-1(c), (l). Despite the inclusion of fringe benefits within the definition of wages, Appellants point out that the graduated vacation pay at issue in the arbitration award was not “earned” by Appellees in connection with their work for Mutual Mining. See W.Va. Code § 21-5-1(c). Instead, it was a form of pay to which the terms of the wage agreement entitled them based on their previous years of employment with Elk Mining. Appellants argue that because the Parkinson award only resulted through “an adjudication and finding of liability,” it is “a form of damage” that falls outside the reach of the Act. See Conrad, 206 W.Va. at 48, 521 S.E.2d at 540.

        If this award of graduated vacation pay had first accruedSee footnote 17 ¹⁷ during the period when Appellees were employed by Mutual Mining, rather than when they were employed by Elk Mining, we would be more willing to consider that vacation pay as having been “earned” rather than being awarded as a form of damages as a direct result of legal proceedings under the rationale of Conrad. See 205 W.Va. at 48, 521 S.E.2d at 540. Under the facts presented, we find the graduated vacation pay awarded by the arbitrator in the Parkinson matter to be more akin to an award of damages than to an award of “wages,” as that term is defined by the Act. See W.Va. Code § 21-5-1(c); Conrad, 205 W.Va. at 50, 521 S.E.2d at 542.

        Based on the foregoing, we reverse the decision of the Circuit Court of Logan County.
                                            Reversed.

            Whenever any person, firm or corporation shall contract with another for the performance of any work which the prime contracting person has undertaken to perform for another, the prime contractor shall become civilly liable to employees engaged in the performance of work under such contract for the payment of wages and fringe benefits, exclusive of liquidated damages as provided in section four (e) of this article, to the extent that the employer of such employee fails to pay such wages and fringe benefits. . . .

W.Va. Code § 21-5-7.