New York Shipping Association v. Waterfront Commission of New Y , 835 F.3d 344 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
Nos. 14-3956, 14-3957, 14-3958, 14-4278, 14-4279, 14-4422
__________
NEW YORK SHIPPING ASSOCIATION INC, on behalf of
its members; METROPOLITAN MARINE
MAINTENANCE CONTRACTORS’ ASSOCIATION, INC.,
on behalf of its members; INTERNATIONAL
LONGSHOREMEN’S ASSOCIATION AFL-CIO, on behalf
of its members and affiliated locals in the Port of New York
and New Jersey; LOCAL 1804-1, INTERNATIONAL
LONGSHOREMENS ASSOCIATION, AFL-CIO; LOCAL
1814, INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, AFL-CIO, on behalf of its members
v.
WATERFRONT COMMISSION OF
NEW YORK HARBOR
New York Shipping Association Inc.,
Appellant in 14-3956
____
NEW YORK SHIPPING ASSOCIATION INC, on behalf of
its members; METROPOLITAN MARINE
MAINTENANCE CONTRACTORS ASSOCIATION, INC.
on behalf of its members; INTERNATIONAL
LONGSHOREMENS ASSOCIATION AFL-CIO,
On behalf of its members and affilated locals in the Port of
New York and New Jersey; LOCAL 1804-1,
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,
AFL-CIO;LOCAL 1814, INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION, AFL-CIO
v.
WATERFRONT COMMISSION OF
NEW YORK HARBOR
International Longshoremen’s Association, AFL-CIO,
Local 1804-1, International Longshoremen’s Association,
AFL-CIO, Local 1814, International
Longshoremen's Association, AFL-CIO,
Appellants in 14-3957
____
NEW YORK SHIPPING ASSOCIATION INC, on behalf of
its members; METROPOLITAN MARINE
MAINTENANCE CONTRACTORS’ ASSOCIATION, on
behalf of its members; INTERNATIONAL
LONGSHOREMENS ASSOCIATION AFL-CIO, on behalf
of its members and affiliated locals in the Port of New York
and New Jersey; LOCAL 1804-1, INTERNATIONAL
LONGSHOREMEN’S ASSOCIATION, AFL-CIO; LOCAL
1814, INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, AFL-CIO, on behalf of its members
v.
2
WATERFRONT COMMISSION OF
NEW YORK HARBOR
Metropolitan Marine Maintenance Contractors'
Association, Inc.,
Appellant in 14-3958
____
NEW YORK SHIPPING ASSOCIATION INC, on behalf of
its members; METROPOLITAN MARINE
MAINTENANCE CONTRACTORS ASSOCIATION,
on behalf of its members; INTERNATIONAL
LONGSHOREMENS ASSOCIATION AFL-CIO,
on behalf of its members; INTERNATIONAL
LONGSHOREMENS ASSOCIATION LOCAL 1804-1,
on behalf of its members; INTERNATIONAL
LONGSHOREMENS ASSOCIATION 1814,
on behalf of its members
v.
WATERFRONT COMMISSION OF
NEW YORK HARBOR
New York Shipping Association, Inc.,
Appellant in 14-4278
____
NEW YORK SHIPPING ASSOCIATION INC,
on behalf of its members; METROPOLITAN MARINE
MAINTENANCE CONTRACTORS ASSOCIATION,
on behalf of its members;INTERNATIONAL
LONGSHOREMENS ASSOCIATION 1814,
on behalf of its members;
3
INTERNATIONAL LONGSHOREMENS ASSOCIATION
LOCAL 1804-1, on behalf of its members;
INTERNATIONAL LONGSHOREMENS ASSOCIATION
AFL-CIO, on behalf of its members
v.
WATERFRONT COMMISSION OF
NEW YORK HARBOR
International Longshoremen’s Association, AFL-CIO;
International Longshoremen’s Association 1814,
International Longshoremen's Association 1804-1;
Appellants in 14-4279
____
NEW YORK SHIPPING ASSOCIATION INC, on behalf of
its members; INTERNATIONAL LONGSHOREMENS
ASSOCIATION 1814, on behalf of its members;
INTERNATIONAL LONGSHOREMENS ASSOCIATION
AFL-CIO, on behalf of its members;
INTERNATIONAL LONGSHOREMENS ASSOCIATION
LOCAL 1804-1, on behalf of its members;
METROPOLITAN MARINE MAINTENANCE
CONTRACTORS ASSOCIATION, on behalf of its members
v.
WATERFRONT COMMISSION OF
NEW YORK HARBOR
Metropolitan Marine Maintenance
4
Contractors Association Inc.,
Appellant in 14-4422
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-13-cv-07115)
District Judge: Honorable Susan D. Wigenton
ARGUED JULY 9, 2015
BEFORE: FUENTES, NYGAARD,
and ROTH, Circuit Judges
(Filed: August 30, 2016)
James R. Campbell, Jr., Esq.
Donato Caruso, Esq. [Argued]
The Lambos Firm
303 South Broadway, Suite 410
Tarrytown, NY 10591
Counsel for Appellant New York
Shipping Association, Inc.
Kevin J. Marrinan, Esq. [Argued]
John P. Sheridan, Esq.
Marrinan & Mazzola Mardon
26 Broadway, 17th Floor
New York, NY 10004
Counsel for Appellants International
Longshoremen’s Association AFL-CIO, International
5
Longshoremen’s Association AFL-CIO Local1804-1,
and International Longshoremen’s Association AFL-
CIO Local 1814
Peter O. Hughes, Esq. [Argued]
Ogletree, Deakins, Nash, Smoak & Stewart
10 Madison Avenue, Suite 400
Morristown, NJ 07960
Counsel for Appellant Metropolitan Marine
Maintenance Contractors Association
Phoebe S. Sorial, Esq. [Argued]
Waterfront Commission of New York Harbor
39 Broadway, 4th Floor
New York, NY 10006
Counsel for Appellee Waterfront Commission of New
York Harbor
__________
OPINION OF THE COURT
__________
NYGAARD, Circuit Judge.
The District Court ruled that the Appellee, Waterfront
Commission of New York Harbor (Commission or
Waterfront Commission), 1 was within its statutory authority
1
Appellee Waterfront Commission of New York Harbor is a
bi-state corporate and political entity created by interstate
compact. N.J.S.A. § 32:23-1; N.Y. Unconsol. Laws § 9801(McKinney). All statutory citations to the Compact
6
to require shipping companies and other employers to certify
that prospective employees had been referred for employment
pursuant to federal and state nondiscrimination policies. The
District Court also rejected claims that the Commission had
unlawfully interfered with collective bargaining rights,
holding that such rights were not completely protected under
the language of the Waterfront Commission Compact
(Compact), which was entered into by the states of New
Jersey and New York in 1953. We will affirm.
I.
Factual and Procedural Background
This appeal takes us deep into the hiring practices and
procedures utilized on the New York/New Jersey waterfront.
We will start with some history, which to varying degrees,
has been reported elsewhere. See, e.g., De Veau v. Braisted,
363 U.S. 144 (1960); Waterfront Comm’n of N.Y. Harbor v.
Sea Land Serv., Inc., 764 F.2d 961 (3d Cir. 1985); Hazleton v.
Murray, 21 N.J. 115 (1956); Waterfront Comm’n of N.Y.
Harbor v. Constr. & Marine Equip. Co., Inc., 928 F. Supp.
1388 (D.N.J. 1996). Years of criminal activity and corrupt
hiring practices on the waterfront were first brought to light in
1949 in a series of 24 articles published in the New York Sun
by journalist Malcolm Johnson. Entitled “Crime on the
Waterfront,” these articles won Johnson the Pulitzer Prize,
and formed the basis for the 1954 film “On the Waterfront.” 2
provisions will be to the New Jersey statute, unless otherwise
noted.
2
For detailed historical information on the New York
waterfront and its association with criminal activity, see
7
Hiring practices on the waterfront also caught the
attention of the New York State Crime Commission (Crime
Commission), which issued a report in 1953 relating in detail
the pervasive influence of crime and corruption on waterfront
hiring practices. See Fourth Report of the New York State
Crime Commission, N.Y.S. Leg. Doc. No. 70 (1953). The
Crime Commission singled-out the “shape-up” hiring system
for particular scorn. The term connotes a hiring method
whereby the applicants appeared daily at the docks or other
locations and a hiring boss would select those who would be
given work. Id. at 37. 3 The foundation of this practice was
the union foreman’s unfettered control over the process and
his unchecked power to select whomever he desired for
employment.
The Crime Commission report led to public hearings
on its findings. Then-New York Governor Thomas E. Dewey
held hearings, the goal of which was to come up with a
legislative plan to address the Commission’s concerns.
Representatives of the State of New Jersey were also present
for and participated in these hearings. The “shape-up” hiring
system was identified by the Commission as a vector for
corruption and criminal practices on the docks. So as “to
investigate, deter, combat and remedy” this criminality and
corruption, the states of New Jersey and New York entered
into the Compact in 1953. Gonzalez v. Waterfront Comm’n
Nathan Ward, Dark Harbor: The War for the New York
Waterfront (2010); see also Jonathan Eig, ‘Waterfront’
Jungle, N. Y. Times, Sept. 24, 2010.
3
See also Levias v. Pac. Maritime Ass’n, 760 F. Supp. 2d
1036, 1050 (W.D. Wash. 2001).
8
of N.Y. Harbor, 755 F.3d 176, 177 (3d Cir. 2014); see also
N.J.S.A. § 32:23-1, et seq. Pursuant to Art. I., § 10 of the
United States Constitution, Congress approved the Compact
in August of 1953. 4 The Compact created the Waterfront
Commission to, among other things, eliminate corrupt hiring
practices on the waterfront. Waterfront Comm’n of N.Y. v.
Elizabeth-Newark Shipping Inc., 164 F.3d 177, 180 (3d Cir.
1980) (citing Hazelton, 21 N.J. at 120-23). In enacting the
Compact, the legislatures of both states noted:
that the conditions under which
waterfront labor is employed with
the Port of New York district are
depressing and degrading to such
labor, resulting from the lack of
any systemic method of hiring,
the lack of adequate information
as to the availability of
employment, corrupt hiring
practices, and the fact that persons
conducting such hiring are
frequently criminals and persons
notoriously lacking in moral
4
The Compact Clause of the Constitution provides that “[n]o
State shall, without the Consent of Congress, . . . enter into
any Agreement or Compact with another State.” Art. I, § 10,
cl. 3. Accordingly, before a compact between two States can
be given effect it must be approved by Congress. See
Virginia v. Maryland, 540 U.S. 56, 66 (2003). Once a
Compact receives such approval, it is “transform[ed] . . . into
a law of the United States.” Id. (internal quotation marks
omitted).
9
character and integrity and neither
responsive or responsible to the
employers nor to the uncoerced
will of the majority members of
the labor organizations of the
employees; that as a result
waterfront laborers suffer from
irregularity of employment, fear
and insecurity, inadequate
earnings, an unduly high accident
rate, subjection to borrowing at
usurious rates of interest,
exploitation and extortion as the
price of securing employment.
N.J.S.A. § 32:23-2.
One way the Compact sought to rein in the corruption
associated with hiring on the waterfront was by requiring the
Commission to regulate longshoremen and stevedores.
Employment Information Centers were to be operated by the
Commission to handle all hiring of longshoremen. Further,
the Compact charged the Commission with registering all
individuals who were qualified to work as longshoremen and
specifically provided that “no person shall act as a
longshoreman within the Port of New York district unless at
the time he is included in the longshoremen’s register.”
N.J.S.A. § 32:23-27. The Compact also provided a definition
of a longshoreman:
[A] natural person, other than the
hiring agent, who is employed for
work at a pier or other waterfront
10
terminal, either by a carrier of
freight by water or by a stevedore
(a) physically to move waterborne
freight on vessels berthed at piers,
on piers or at other waterfront
terminals, or (b) to engage in
direct and immediate checking of
any such freight or of the
custodial accounting therefore, or
in the recording or tabulation of
the hours worked at piers or other
waterfront terminals by natural
persons employed by carriers of
freight by water or stevedores, or
(c) to supervise directly and
immediately others who are
employed as in subdivision (a) of
this definition.
N.J.S.A. § 32:23-6. This definition was expanded in 1957 to
include workers who performed labor that was incidental to
the movement of waterborne freight. N.J.S.A. § 32:23-85(6).
A longshoreman who fits either the original or expanded
definition was known as a “deep sea” longshoreman. 5
Further, the Compact gave the Commission the authority to
license stevedoring companies that wanted to operate at the
Port. A ‘stevedore,’ according to the Compact, is a contractor
5
These longshoremen are sometimes referred to as “five-
digit” longshoremen in light of the five digit registration
number assigned them by the Commission. See Bozzi v.
Waterfront Comm’n of N. Y. Harbor, No. 90-cv-0926 (MGC),
1994 WL 606043 at *2 (S.D.N.Y. Nov. 3, 1994).
11
hired by a carrier of waterborne freight to move freight in
ships that are berthed at piers, or at other waterfront
terminals. See N.J.S.A. § 32:23-6.
By 1969, new developments in shipping technology
required changes to hiring procedures on the waterfront. The
New Jersey Supreme Court has summarized this new
technology:
Containerization involves the
loading of cargo by a shipper into
a box-like object called a
container. The cargo-laden
container is loaded onto a truck
frame that transports it to a pier
where it is hoisted aboard a ship
designed to carry containers. At
the port of discharge, the process
is simply reversed.
Containerization contrasts sharply
with the traditional “break-bulk”
shipping method, which involved
loading trucks item by item,
emptying them piece by piece at
the pier, and then loading the ship
in the same fashion.
Waterfront Comm’n of N.Y. v. Mercedes-Benz of N. Am., Inc.,
99 N.J. 402, 411-12 (1985). Containerization and other new
technologies dramatically decreased the need for manual
labor at the port. This decrease in the size of the labor force
led, in turn, to the enactment of an amendment to the
Compact: Section 5-p. Known as the “closed register
12
statute,” Section 5-p authorized the Commission to open or
close the Longshoreman’s Register so as to balance the
workforce with the demand for labor. See, e.g., Nat’l Org. of
Women, N.Y. Chapter v. Waterfront Comm’n of N.Y. Harbor,
468 F. Supp. 317, 319 (S.D.N.Y. 1979); see also N.J.S.A. §
32:23-114. The prevalence of containerization in the
shipping industry also led to the creation of a new class of
dock worker: longshoremen who did not load or unload ships,
but instead performed services that were incidental to those
tasks. This new class of longshoremen were registered with
the Commission and commonly referred to as “A-registrants,”
to distinguish them from deep sea longshoremen. 6 A-
registrants were not permitted to do any work that involved
the discharge or unloading of cargo vessels. New
classifications of stevedores were also created to cover those
contactors that were involved in the loading and unloading of
the containers, cargo storage, cargo repairing, coopering,
general maintenance and other miscellaneous work.
The Commission codified these worker classifications
in Section 4.4 of its Rules and Regulations. Section 4.4
divided the Longshoreman’s Register into two sections,
reflecting these two classifications of labor:
(b) The register shall be divided
as follows: (1) A “deep sea”
register which shall include all
persons registered by the
6
The “A” classification comes from the “A” prefix attached
before these worker’s multi-digit registration number, which
appear on licenses issued by the Commission to those
workers. See Bozzi, 1994 WL 606043 at *3.
13
commission as longshoremen and
checkers except those persons
registered as longshoremen
pursuant to the 1969 amendments
to the Act (NY Laws 1969, ch.
953; NJ Laws 1969, ch. 128); (2)
An “A” or “1969 amendment”
register which shall include all
persons registered by the
commission as longshoremen
pursuant to the 1969 amendments
to the act (NY Laws 1969, ch.
953; NJ Laws 1969, ch. 128).
N.Y. Comp. Codes R. & Regs. Tit. 21 § 4.4 (2013). This
resulted in the bifurcation of the labor force: members of the
New York Shipping Association (NYSA) represented the
deep sea registrants while Metropolitan Marine Maintenance
Contractor’s Association (MMMCA) members employed the
A-registrants. In the 1980s, the Commission clarified the
status of these two workforces as they related to the closed
register. Section 5-p was amended to now provide that
“[n]otwithstanding any other provision of this act, the
commission may include [A-registrants] in the
longshoremen’s register under such terms and conditions as
the commission may prescribe.” N.J.S.A. § 32:23-114(4).
Section 5-p was again amended in 1999. Increased
business in the port and attrition in the labor force, among
other things, necessitated changes to the procedures that had
previously been used to open the longshoreman’s register.
Public hearings were held in which the Commission and
14
several of the Appellants participated. As amended, Section
5-p required that
[t]he sponsoring employer shall
certify that the selection of the
persons so sponsored was made
on a fair and non-discriminatory
basis in accordance with the
requirements of the laws of the
United States and the States of
New York and New Jersey
dealing with equal employment
opportunities.
N.J.S.A. § 32:23-114(1).
The dispute before us today arose from the
Commission’s decision to open the longshoremen’s register
in December of 2013. The NYSA, an organization
representing marine terminal operators, stevedoring
companies and ship operators in the Port of New York and
New Jersey, along with the MMMCA, and the International
Longshoremen’s Association, AFL-CIO (ILA), filed a
complaint against the Commission in November of 2013. 7
The NYSA and the ILA had, three months earlier, asked the
7
The MMMCA represents maintenance contractor employers
and the ILA represents longshoremen and other waterfront
workers employed by the NYSA’s members. Also parties to
this dispute are two local chapters of the ILA—Local 1804-1
and Local 1814. Where appropriate, we will refer to all
Appellants collectively.
15
Commission to add, on its own initiative, more than 600
employees to the deep sea register. The NYSA and the ILA
also told the Commission that they would recruit, train, and
hire individuals pursuant to the terms of the Recruitment and
Hiring Plan, which was agreed to under a new collective
bargaining agreement between the NYSA and the ILA. 8
After meeting with representatives of the NYSA, MMMCA
and others, the Commission issued Determination 35 in
December of 2013 which, among other things, stated that the
Commission would open the Register to accept applications
for 225 new positions. The Commission’s Determination also
required:
. . . that prior to the Commission’s
acceptance of any application for
inclusion in the Longshoremen's
Register pursuant to this
Determination, a representative of
the NYSA–ILA Contract Board
directly involved with the
administration of the Hiring Plan
shall submit a letter setting forth
the name and address of the
recommended individual, and
certifying that:
(1) he or she has personal
knowledge of the facts
concerning the recruitment,
8
Under this plan, 51% of new hires were to consist of
honorably discharged military veterans, 25% of new hires
would be referrals from the ILA and 24% would be referrals
from the NYSA.
16
referral, selection and
sponsorship of [the
applicant] and (2) the
selection of the person so
sponsored was made in a
fair and nondiscriminatory
basis in accordance with
the requirements of the
laws of the United States
and the States of New
York and New Jersey
dealing with equal
employment opportunities.
Commission Determination 35 (Dec. 3, 2013). 9
The Appellants sued the Commission in November of
2014. They asked for declaratory and injunctive relief
pursuant to the Declaratory Judgments Act, 28 U.S.C.A. §§
2201-2202 (2006). They also asked the District Court for a
preliminary injunction prohibiting the Commission from
implementing its antidiscrimination certification
requirements. The District Court denied the request for a
preliminary injunction, finding that the Appellants failed to
show irreparable harm and a likelihood of success on the
merits. The Commission then filed a motion to dismiss.
Appellants amended their complaint in January of 2015,
which the District Court ultimately dismissed. Appellants
have timely appealed that dismissal.
9
A copy of Determination 35 is available at
http://www.waterfrontcommission.org/news/determination35.
pdf
17
III.
We have jurisdiction to review the District Court’s
October 9, 2014 order dismissing the Appellants’ amended
complaint under 28 U.S.C. § 1291. We exercise plenary
review of an order granting a motion to dismiss under Rule
12(b)(6) and apply the same standard as the District Court.
Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir.
2009). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
IV.
Appellants NYSA, ILA and the ILA Locals filed a
joint brief while Appellant MMMCA opted to brief us
separately. Appellants collectively question the validity of
the antidiscrimination certification procedure added to
Section 5-p in 1999, and, by extension, Rule 4.4. They also
claim that they have successfully pleaded the Commission’s
unlawful interference with their collective bargaining rights.
The NYSA, ILA and ILA Locals further claim that the
Commission violated their due process rights in promulgating
its certification amendment in Rule 4.4. For organizational
purposes, we will address these issues with reference to the
specific counts of the Amended Complaint in which they
were raised.
A.
Dismissal of Counts I and II
18
The Compact permits “amendments and supplements”
as long as those changes implement the Compact’s purposes
and are concurred in by the legislatures of New Jersey and
New York. N.J.S.A. § 32:23-70; N.Y. Unconsol. § 9870.
Such amendments have the pre-approval of Congress. 10
Here, Count I of the Amended Complaint challenges the
Commission’s amendment to Rule 4.4 on the basis that the
Compact provision under which it was promulgated—
the1999 amendment to Compact Section 5-p—is not
consistent with the purposes of the Compact, and is therefore
invalid due to a lack of Congressional approval. Therefore, to
resolve this issue, we must determine whether the anti-
discrimination certification requirement of Section 5-p is a
valid amendment which implements the purposes of the
Compact. The parties agree that the resolution of this issue
turns on whether one of the purposes of the Compact was the
elimination of racial discrimination in the hiring of
longshoremen. Meanwhile, Count II of the Amended
10
Congress’ pre-approval of such amendments is certainly
rare. As the Supreme Court has noted: “Congress expressly
gave its consent to such implementing legislation not
formally part of the compact. This provision in the consent
by Congress to a compact is so extraordinary as to be unique
in the history of compacts. Of all the instances of
congressional approval of state compacts . . . we have found
no other in which Congress gave its consent to implementing
legislation. It is instructive that this unique provision has
occurred in connection with approval of a compact dealing
with the prevention of crime where, because of the peculiarly
local nature of the problem, the inference is strongest that
local policies are not to be thwarted.” De Veau v. Braisted,
363 U.S. 144, 154 (1960).
19
Complaint turns on the scope of the 1999 amendment to
Section 5-p itself; that is, whether that amendment applies to
A-registrants. The resolution of these questions requires us to
interpret provisions of the Compact. To so do, we treat the
Compact like any other federal statute, and interpret it
accordingly. See Texas v. New Mexico, 482 U.S. 124, 128
(1987).
Appellants argue that because the Compact did not
specifically mention racial discrimination at the time it was
enacted, any amendment designed to ensure fair and non-
discriminatory hiring practices cannot further the Compact’s
purposes and is, therefore, unconstitutional. They base this
argument on their belief that the phrase “corrupt hiring
practices” (which they admit the Commission was formed to
combat) does not include the purposeful exclusion of racial
minorities. Therefore, the Appellants conclude, the
Commission cannot require them to certify that their hiring
practices comply with federal and state laws dealing with
equal opportunity. This argument is meritless. Like the
District Court, we also conclude that Count I of the Amended
Complaint fails to state a claim as matter of law because one
of the purposes of the Compact is the elimination of racial
discrimination in hiring. Section 5-p’s certification
requirement furthers this purpose and is thus, constitutional.
The stated purpose of the Compact, as set out in
Article I, is to rid the docks of “corrupt hiring practices,”
“depressing and degrading” labor conditions, and
“irregularity of employment.” N.J.S.A. § 32:23-2; see also
Elizabeth-Newark Shipping, Inc., 164 F.3d at 180 (“The
Compact was enacted to eliminate corrupt hiring practices on
20
the . . . waterfront.”). 11 Can it seriously be argued that racial
discrimination in hiring (or anywhere, for that matter), is not
a corrupt practice? We questioned counsel for the NYSA at
oral argument on this very point and counsel conceded that
the antidiscrimination certification requirement was “a good
thing.” Oral Argument Tr. at 8-9. When pressed further, and
mirroring the arguments raised in their brief, counsel
maintained that racial discrimination may be a corrupt hiring
practice, but that it was not one of the practices considered
corrupt when the Compact was enacted in 1953. This
argument belies the Compact’s legislative history and we
11
Appellant MMMCA argues that Article I of the Compact is
“the least likely place to find the ‘purposes’ of the Compact,”
and that “Congress did not treat ‘the purposes of the
Compact’ as a coded reference to Article I.” MMMCA Br. at
37, 48. Instead, the MMMCA maintains that Article I is
merely a preamble or introduction for the “substantive
provisions of the Compact.” MMMCA Br. at 47-48. As the
Commission points out, however, this argument quickly
withers when confronted with testimony offered when the
Compact was discussed in the United States Senate in July of
1953. Speaking about the Compact, New Jersey Senator
Robert C. Hendrickson, who had introduced a bill granting
the consent of Congress to the Compact, stated that “the
purpose of this bill can be best stated by referring to article I
of the compact, which sets forth the findings which shook and
rocked the American people on the occasion of their recent
public disclosure.” WC-ADD at 448. In support of their
arguments on appeal, the Appellee submitted an addendum
containing Commission reports and extensive legislative
history materials. We refer to that addendum hereinafter as
“WC-ADD.”
21
have little difficulty concluding that such a corrupt practice
was indeed contemplated by the state legislatures and
Congress in enacting and approving the Compact.
Racial discrimination in hiring was a concern brought
to the attention of the state legislatures in 1953. Testimony
provided by Cleophus Jacobs, the secretary-treasurer of ILA
Local 968, a predominately African-American local, revealed
that of its 500 members, only 100 had been getting work at
that time. Jacobs specifically pointed to the shape-up system
as an instrument of racial discrimination:
Our opposition to the shape-up,
therefore, is not of recent origin,
nor are we jumping on the
bandwagon of an outraged public
opinion. To the members of our
local the shape-up had produced
an even greater evil than that
which the public generally has
now come to recognize. It has
been the instrument of racial
discrimination against our
members and consequently has
further reduced job opportunities
for them.
WC-ADD at 301. This testimony was not the only instance
where racial discrimination was discussed prior to the
enactment of the Compact. Special Counsel to the Dewey
hearings, Theodore Kiendl, followed-up on Jacob’s
statements by asking him:
22
Q: And you think [the shape-
up] system leads to racial
discrimination?
A: It does. Whether crime
might have been produced or not,
but the system of shape-up really
facilitates the exercise of racial
discrimination.
WC-ADD at 305. Counsel also produced a March 1952
edition of the “Negro Longshoreman,” a newsletter written
and edited by the rank-and-file membership of Local 968.
Counsel called attention to the following statement: “We
Negro longshoremen are discriminated against first of all by
our own International officials of the ILA who deny us
representation or jurisdiction over any piers on the
waterfront.” Id. at 306. Finally, the record of the state
hearings clearly demonstrates that racial discrimination was
one of the corrupt hiring practices the Compact strove to
eliminate. Counsel directly asked Jacobs:
Q: Now, don’t you think that
the programs presented by the
State Crime Commission
eliminate the shape-up entirely
and substituting a new form of
hiring is highly desirable to
obtain the very ends that your
union wants to accomplish, to
wit, the elimination of racial
discrimination entirely?
23
A. I agree the Commission
has made an effort . . .
Id.
The subsequent federal Congressional hearings on the
Compact likewise contain discussions about the problem of
racial discrimination in waterfront hiring practices. During a
1953 hearing on the Compact before the United States Senate,
New Hampshire Senator Charles W. Tobey scathingly
criticized ILA hiring practices of the time as racially
discriminatory. Senator Tobey first noted the ILA’s practice
of charging African-American union members double the
amount of initiation fees they charged to white members.
WC-ADD at 445. Then, the Senator continued his statements
decrying the racial discrimination inflicted upon the ILA’s
African-American members:
Man’s inhumanity to man is being
exemplified in certain labor
circles. Such labor unions had
better take cover. They are riding
for a fall. The time cannot come
too soon. Let us clean them out.
Who is running this country
anyway, I ask—honest, God-
fearing people, or crooked labor
union leaders? We can give
names and addresses. Cry out,
America, “Unclean, unclean.”
Id. The “corrupt hiring practices” language used in the
Compact embodies the concerns both the state and federal
24
legislatures had in confronting racial discrimination in hiring
on the docks. Given this legislative history, we easily
conclude that the 1999 Amendment to Section 5-p reflected
the legislatures’ belief that ending racial discrimination in
employment was part of the Compact’s core purposes. As
such, it had Congressional approval. We, therefore, agree
with the District Court that Count I fails to state a claim. 12
We also will affirm the District Court’s dismissal of
Count II. As we indicated earlier, the issues raised in this
Count invoke the scope of Rule 4.4, that is, to which workers
it applies. Under the framework in place for hiring of A-
registrants, the ILA has the exclusive right to recruit and
select potential employees to be referred for employment as
A-registrants. The Commission maintains that this practice is
no better than the shape-up system of old. In amending Rule
4.4, the Commission’s purpose was to hold employers
accountable for any racial discrimination that may have
infected the ILA’s selection and referral of A-registrants. Put
another way, the amendment was an attempt by the
Commission to ensure that the NYSA and the MMMCA’s
hiring of A-registrants was done in a nondiscriminatory
manner.
Appellants argue that the Rule’s certification
requirement is improper because Section 5-p, on which it was
12
The NYSA and the ILA argue, in a brief footnote, that the
District Court’s dismissal of Count V should be reversed for
the same reasons as Count I. NYSA-ILA Br. at 45 n.10.
They point to no other grounds for reversal of this Count.
Inasmuch as we will affirm the dismissal of Count I, we
likewise will affirm the dismissal of Count V.
25
based, only applies to deep-sea longshoremen, not A-
registrants. Appellant MMMCA goes further, arguing that
the Commission has repeatedly stated that the Section 5-p
does not apply to maintenance and repair workers, an
overwhelming majority of whom are A-registrants. A look at
the language of Section 5-p itself quickly defeats this
argument. Section 5-p of the Compact contains five
subdivisions, the fourth of which states that
“[n]otwithstanding any other provision of this act, the
commission may include in the longshoremen’s register under
such terms and conditions as the commission may prescribe:
. . . [a] person defined as a ‘longshoreman’ in subdivision (6)
of section 1(5-a) of P.L.1954, c. 14 (C.32:23-85), who is
employed by a stevedore as defined in paragraph (b) or (c) of
subdivision (1) of the same section (C.32:23-85) and whose
employment is not subject to the guaranteed annual income
provisions of any collective bargaining agreement relating to
longshoremen.” N.J.S.A. § 32:23-114(4). These persons, in
other words, are A-registrants and under the Compact, the
Commission may include them in the register under whatever
terms and conditions it wishes.
Appellants offer us little contrary argument, pointing
only to an unreported ruling of the United States District
Court for the Southern District of New York as support for
their position. In Bozzi, supra., two A-registrant workers had
mistakenly been working as deep-sea longshoremen in the
holds of general cargo vessels. The Commission, after
learning of this error, told the two workers to cease
performing general longshore work, except for those jobs
they had been approved to perform. The A-registrants sued,
asking for a declaratory judgment that the Commission had
the authority under Section 5-p(5)(b) of the Compact to
26
include them in the closed deep-sea register. The
Commission argued that the closed register provision has
always been interpreted to apply only to deep-sea
longshoreman and the Commission has consistently viewed
Section 5-p(5)(b) as a housekeeping provision, which merely
clarifies the status of A-registrants. The District Court, after
an extensive discussion of Section 5-p(5)(b)’s legislative
history, agreed with the Commission, and held that the two
A-registrants could not individually be added to the closed
deep-sea register. The individual workers asked for a
declaratory judgment that the Commission had the authority
to include them in the closed deep-sea register.
The Appellants seize upon the Commission’s position
in Bozzi—that the closed register provisions of Section 5-p
only apply to deep-sea longshoremen, not A-registrants—to
argue that the nondiscrimination certification requirements of
Section 5-p only apply to deep-sea longshoremen. This
contention is baseless and misconstrues Bozzi. While A-
registrants may not be included in the closed register
provisions of Section 5-p, they are subject to Section 5-p’s
other provisions, like the nondiscrimination provisions at
issue here. As the District Court noted, the Commission has
been interpreting Section 5-p(5)(b) this way for decades, and
that interpretation is entitled to great weight. See Chevron,
U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837,
844 (1984).
In sum, Compact Section 5p-(5)(b) clearly provides
that A-registrants may be included in the deep-sea register
under “such terms and conditions as the [C]ommission may
prescribe.” N.J.S.A. § 32:23-114(4). The District Court did
27
not err in dismissing Count II of the Amended Complaint for
failure to state a claim.
B.
Dismissal of Counts III, IV and VII
We will also affirm the District Court’s dismissal of
Counts III, IV, and VII of the Amended Complaint. Taken
together, these three counts accuse the Commission of
unlawfully interfering with the Appellants’ collective
bargaining rights by implementing the nondiscrimination
certification provisions. The Appellants also maintain that
the Commission’s actions violate national labor policy by
dictating the terms of their collective bargaining agreements.
We reject both contentions.
We take these claims out of numerical order, and start
our discussion with Count VII. The District Court dismissed
Count VII for an inadequacy in pleading under Fed. R. Civ. P.
8(a), and we review such a ruling for an abuse of discretion.
In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir.
1996). We see no abuse of the District Court’s discretion in
its dismissal of this count. At the outset, the NYSA and ILA
acknowledge this count’s lack of a specific demand for relief.
NYSA-ILA Br. at 61. This omission, in and of itself, justifies
a dismissal of the count. See Simmons v. Abruzzo, 49 F.3d
83, 86 (2d Cir. 1995). Further, we share the District Court’s
conclusion that Count VII is little more than a collection of
conclusory statements and a recitation of Commission
Determination 35. Given this, the District Court’s conclusion
that the Appellants failed to connect their allegations to a
violation of Compact Article XV was not unreasonable and
28
therefore, its decision to dismiss this count for a failure to
adequately allege facts sufficient to state a claim for relief
was not an abuse of its discretion.
Turning now to Counts III and IV, we note that the
Appellants argue, with more specificity, that the
Commission’s actions violate Article XV of the Compact,
which states, among other things, that:
This compact [was] not designed .
. . to limit in any way any rights
granted or derived from any other
statute or any rule of law for
employees to organize in labor
organizations, to bargain
collectively and to act in any other
way individually, collectively,
and though labor organizations or
other representatives of their own
choosing.
****
This compact is not designed and
shall not be construed to limit in
any way rights of longshoremen,
hiring agents, pier superintendents
or port watchmen or their
employers to bargain collectively
. . ..
N.J.S.A. § 32:23-68, -69. Appellants argue that this Article
guarantees them “unfettered collective bargaining” and gives
29
them “freedom of choice in the selection of employees.”
NYSA-ILA Br. at 9-10. This position is untenable, however,
because the language of Article XV is not absolute. Indeed,
in this very context, we have held that collective bargaining
rights cannot supersede “the Commission’s supervisory role
regarding practices that might lead to corruption.” Sea Land,
764 F.2d at 966-67. That is, Article XV “guarantees that
[collectively bargained] hiring procedures will not be
displaced where they comport with the Compact.” Id. at 963.
Obviously, the converse is true as well: where actions are not
in furtherance of the original purposes of the Compact,
collective bargaining rights may be infringed upon.
Here, as we previously determined, the eradication of
racial discrimination in hiring was one of the original
purposes of the Compact. The Commission’s actions in
requiring certification that prospective employees were
selected in a nondiscriminatory manner certainly further the
Compact’s purposes of rooting out corrupt hiring practices
such as racial discrimination. Therefore, the Commission’s
certification regulation cannot be viewed as an improper
intrusion into Appellants’ collective bargaining rights.
Appellant MMMCA takes a slightly different tact on
this issue, arguing that the Commission cannot undertake any
action that would limit the ability of labor and management to
agree to a mutually satisfactory way of selecting employees.
The MMMCA maintains that “the Compact treats as
inviolable whatever method the bargaining parties arrive at.”
MMMCA Br. at 56. While the Compact does safeguard the
Appellants’ collective bargaining rights, it does so only to the
extent those rights do not conflict with the purposes of the
Compact. We held as much in Sea Land, supra. There, in
30
order to resolve a conflict between a Commission regulation
and an existing CBA, we proposed a modification, noting that
this change “maintains both the Commission’s supervisory
role regarding practices that might lead to corruption and the
union’s collectively-bargained hiring procedures.” 764 F.2d
at 966-67. We reject, therefore, the argument that
Appellants’ collective bargaining rights are absolute and will
affirm the District Court’s dismissal of these counts.
C.
Due Process Issues
Appellants’ last issue will not detain us long. The
Appellants contend that their due process rights were violated
because the Commission did not conduct public hearings
before implementing the nondiscrimination amendment. This
argument does not hold up under scrutiny because the
Commission’s actions were legislative and procedural due
process does not extend to legislative action. See Rogin v.
Bensalem Twp., 616 F.2d 680, 693 (3d Cir. 1980) (citing Bi-
Metallic Inv. Co. v. State Bd. of Equalization of Colo., 239
U.S. 441 (1915); see also Acierno v. Cloutier, 40 F.3d 597,
610 (3d Cir. 1994) (en banc)).
First, and contrary to their own argument, the
Appellants note that the Amended Complaint alleged that the
nondiscrimination amendment was “enacted,” which
connotes legislative action. Second, the Amended Complaint
fails to allege that the Commission acted in some way that
was contrary to statutory procedures. Indeed, amending the
Commission’s own rules is legislative action.
31
More importantly, the Commission gave the NYSA-
ILA ample notice and opportunity vis-à-vis the
nondiscrimination amendment. The Appellants were notified
of the proposed amendments and indeed, submitted
comments in opposition during the pertinent time period. We
see no procedural due process violation here simply because
the Commission did not hold a public hearing before
amending its own rules. Neither did the District Court and
we will affirm that determination.
V.
Like the District Court, we conclude that the Amended
Complaint fails to state any claim upon which relief may be
granted. Therefore, we see no error in the District Court’s
dismissal.
32