The 3rd U.S. Circuit Court of Appeals affirmed the dismissal of a federal complaint filed against the Waterfront Commission of New York Harbor over a hiring dispute.
A federal appellate court has affirmed the dismissal of a federal complaint filed against the Waterfront Commission of New York Harbor by the New York Shipping Association (NYSA), the Metropolitan Marine Maintenance Contractors’ Association (MMMCA), the International Longshoremen’s Association (ILA) and various ILA locals in 2014.
Judge Richard Nygaard of the U.S. Court of Appeals for the 3rd Circuit said he agreed with a district court that the Waterfront Commission “was within its statutory authority to require shipping companies and other employers to certify that prospective employees had been referred for employment pursuant to federal and state nondiscrimination policies.”
Neither the ILA nor the NYSA had immediate comment.
However, the Waterfront Commission in a sharply-worded press release complained the lawsuit “was just one more desperate attempt to attack the
Waterfront Commission’s efforts to ensure that hiring on the waterfront
is done in a fair and non-discriminatory manner.
“Today’s decision once
again sends the clear and unmistakable message to the ILA, NYSA and
MMMCA that their attempts to institutionalize discrimination through
collective bargaining agreements will not be tolerated,” the Waterfront Commission said. “This decision is
a significant victory for the Waterfront Commission and, more
importantly, for the port.”
John J. Nardi, president of the NYSA said however “This case was not about fair hiring practices, as has been portrayed by the Waterfront Commission. All entities who hire in the United States are bound to fair hiring practices, which are monitored by government agencies charged with enforcing the laws against discrimination. The NYSA and the Port employers have hired over 900 workers over the past two years. All of these workers were hired in a fair and non discriminatory manner. All of these workers were approved by the Commission.”
“The lawsuit was about the role and demands of the Waterfront Commission, when established government agencies with jurisdiction over fair employment laws already exist. The Port of New York and New Jersey operates in a high-cost region. Adding to this cost with duplicate levels of government oversight affects the Port’s ability to maintain its competitive edge in the market. “
“The industry has had a history of productive collective bargaining that has assured a strike-free environment for almost forty years. While the lawsuit was pending, it was the industry, not the Commission, that adopted and implemented a new hiring plan. For the Commission to suggest that the industry promotes discriminatory hiring practices is belied by the fact that this plan brought into the industry 900 new workers of which about 60 pecent are minorities and over 400 are veterans. During the implementation of this hiring plan the industry fully complied with the certification provisions of the Waterfront Commission Act. Since an employer certification was submitted to the Commission with respect to every employee who has been hired, the Third Circuit’s opinion should not have a significant effect on hiring in the NY-NJ Port.”
The NYSA issued a press release Wednesday that noted it had been “named this year’s recipient of the American Legion’s prestigious Employer of the Year award – large employer category – recognizing the association’s longstanding commitment to hiring military veterans.”
“We, of course, are disappointed with the ruling but are hopeful that the Port will continue to evolve to ensure the long term viability of this economic engine. The industry is considering its options concerning further judicial review of the Third Circuit’s opinion,” he added.
The ILA and NYSA have clashed for many years with the Waterfront Commission, complaining that it was slow to act on the request by employers to add workers. The Waterfront Commission controls the number of workers on the docks at New York and New Jersey terminals. The ILA has challenged the diversity of the commission itself, calling it “pale, male and stale” in a Facebook post.
Last year New Jersey Governor Chris Christie conditionally vetoed legislation designed to withdraw New Jersey from the Waterfront Commission of New York Harbor, even though it had been passed unanimously by both chambers of the state legislature.
Christie said he was “not unsympathetic to the merits of the bill, but had been “advised that federal law does not permit one state to unilaterally withdraw from a bi-state compact approved by Congress.”
Nardi said at the time the NYSA disagreed and that moving the responsibilities of the Waterfront Commission to the New Jersey State Police would be “a modernizing change in oversight” and “in the best interest of New Jersey and the Port as a whole.”
Dennis Daggett, the president of the ILA’s Atlantic Coast District said he was “extremely disappointed” with Christie’s veto at the time and vowed “We will not stop until we, the ILA, are Free from this Police State!!”
The NYSA represents marine terminal operators, stevedoring companies and ship operators in the Port of New York and New Jersey that employ ILA members. The MMMCA represents maintenance contractors who employ ILA members.
In response to crime and corruption, the Waterfront Commission was formed in 1953 to rid the docks in New York and New Jersey of “corrupt hiring practices,” along with “depressing and degrading” labor conditions, and “irregularity of employment.”
The dispute over hiring rose from the commission’s decision to open the longshoremen’s register in December of 2013.
The NYSA and the ILA told the commission they would recruit, train and hire workers under a plan where 51 percent of hires would be honorably discharged military veterans, 25 percent would be referrals from the ILA and 24 percent would be referrals from the NYSA.
The Waterfront Commission issued a determination which 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 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.”
The NYSA, MMMCA and ILA sued, questioning the validity of the antidiscrimination certification and unlawful interference with collective bargaining rights.
The 3rd Circuit called their claim “meritless” because the compact establishing the Waterfront Commission “did not specifically mention racial discrimination at the time it was enacted, and any amendment designed to ensure fair and non-discriminatory hiring practices cannot further the compact’s purposes and is, therefore, unconstitutional.”
The 3rd Circuit said this argument was based “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” and that the commission could not require them to certify their hiring practices comply with federal and state laws dealing with equal opportunity.
But Nygaard said, “the record of the state hearings clearly demonstrates that racial discrimination was one of the corrupt hiring practices the compact strove to eliminate.”
The Waterfront Commission noted it had “harshly criticized the NYSA and MMMCA for failing to represent the interests of their members and to fight for the employers’ right to have a say in who they hire, and for instead standing united with the ILA to fight the commission’s efforts to ensure fair hiring. By joining in this lawsuit, the NYSA, in particular, definitively demonstrated that it no longer represents the interests of its terminal operator members but, rather, that of the ILA.
“Since the enactment of the Act in 1953, the NYSA and ILA – disgruntled by its limiting effect on their perceived absolute collective bargaining rights to engage in conduct that promotes discriminatory hiring practices – have challenged virtually every attempt by the Waterfront Commission to ensure that they abide by the spirit and the letter of the Act,” the commission added. “Over the past sixty-three years, courts have consistently upheld the commission’s actions when a collective bargaining agreement has violated the act.”
Court dismisses suit against Waterfront Commission of New York
