this case involves a novel issue related to a world of front commission compact which is an interstate compact between the states of new york and new jersey the came into being in one thousand fifty three as a result of serious effect because of the existence and introduction at that time of the process of container was asian which is kind of swept the industry and is now the main mode of transport but at that time the maid mode was guarantee of twenty for the alice of of wages as a result of the fourth of their own these individuals were not able to have broke at that level and the concern was if they if the provision anywhere in the compact that has anything to do with eradication of employment discrimination by the nineteen ninety nine there was a amendment to section five pay and the amendment in essence included accordance with the federal state and local point of discrimination statutes on the face of things it looks like it looks like a very good thing to have to take issue with i don't disagree that it's a great thing but in order for it to be constitutional it requires the consent of congress congress hasn't passed any judgment on whether it's a good thing or not the problem with testimony before congress when the compact was being considered by about one in one of the bad practices of hiring was discriminatory  look at the stats here here's the problem we have we have an agency that's telling us you have to do x y and z and you have to comply with these laws at and there's no standard in the act and the  amendments spelling out that these higher release have been hired in a manner free of discrimination now you've got the specifics right i don't think we have specific is a great deal of racial discrimination in the hungaroring sure your your position is that there is nothing that the word of truth commission can do to me to alleviate or infect erase that racial discrimination i don't think and nondiscriminatory basis would you argue that fairness is not a component of having non corrupt hiring practices that you can be unfair and still beholder and it is not up to the commission to identify every possible unfairness in the selection of individuals even though the suit racial discrimination is a current practice with the extent of the ability to amend it was given to the compact not are you an originalist are you saying they can only deal with problems of the ability to make such tremendous i think your honor that the very fact that the congress permitted a going forward ability of the legislatures to amend is indication that they indicate they wanted that to be limited to a narrow field of play again if you go about it that's somewhat counterintuitive really giving you a broad ability to remain in we only want you conviction and bad information there is nothing in the compact there was nothing in the original rules there was nothing in the in acting statutes that enable anybody to ask an applicant their race much less their gender  of all the things that that counsel for commission has identified there's nothing about gender and now this law that's and that is an act in the five p amendment in one nine hundred ninety nine not only says you can't discriminate on the basis of race which you know because they've identified a single witness out of three hundred that testified who who identified that racial discrimination like yes you probably in one hundred fifty three there weren't any women applying anyway in the long statutory well i had created statutes with administrative agencies who were sponsible for enforcing the nondiscrimination laws in those states and i think it's clear that the assumption is that those agencies would enforce those laws in fact well how how how do you enforce it any discrimination against this type of situation where the employers are setting forth names to be included in the registered list but you can say that the employer has refused to hire someone because the hiring is not done and that's these were the employers contact with the apple well i would say actually counsel for the commission has supplied that the answer to that question  y putting forth evidence regarding a complaint that was filed by the new york state human rights commission in which the human rights commission filed a complaint against you while a my client the new york shipping and nothing outside should have brought brought in but since it's in front of your honor there is an agency that is authorized to do that and better the union and the companies are within the jurisdiction of the e e o c they're within the jurisdiction of the new york human rights commission and they are within the jurisdiction of the new jersey division on civil rights and who owns what was the outcome of this like there is no outcome it is ongoing so what we really have you're out of the danger here is a risk that there's already three agencies and now the commission may come in and say well no we want you to do something different created for that purpose i don't think there's any creation i'm sorry or i don't think there's any great interest in that that you can't bring a fear to higher complaint and less you can with through the the state agency while on a discriminatory basis or on a ballot under the state rules under the state law of new york and new jersey you can directly follow a lawsuit in court and don't have to be here agency that is employers to submit to it and it is said there is no discrimination or it is at least telling employees and it shall not discriminate on the basis of race or gender and certainly there's plenty of  yours but a bit again where we are now is the commission's position is that corruption is a term that is subject to their interpretation and essentially they have a roving commission not the coin a term to define identify and stamp out any corruption of any sort and you know smoking is an evil practice so you know we're not going to hire anybody who smokes again that there is there are remits this is an issue where congress approved this compact based on what was stated its purpose is work and actually select the individuals that they hired and paid they understood that when they needed labor they had to go to the aisle a for it and this became known as shape up and it was beyond a doubt of the root of all evil and the compaq said that it led to  ross of fundamental rights and liberties of labor and that regularization of employment to a lip was was necessary to eliminate oppressive and evil hiring practices affecting longshoreman as it must  now starts with the purpose of the act and we look at the article one findings and declarations of the compact where the legislators found that the conditions under which waterfront labor were employed were depressing and degrading they were resulting from the lack of any systematic math of hiring corrupt hiring practices practices that waterfront leaders suffered from a regularity of employment fear insecurity and that there was a destruction of dignity of an important segment of american labor and the key term here as we've all recognized is corrupt hiring practices but basically here today because of pallets of jet the signing a certification that the selection contemporaneous legislative history historical context etc etc and what they did it is that they submitted what purports to be the original compact legislative history and contend that nowhere does it mention racial discrimination in hiring well the only problem is they conveniently omitted the other half of the legislative history that difficulty discusses this issue and for me honorable judges this is where the fun begins when you actually take a look at the complete history it paints a completely different picture it illustrates that the overriding purpose of the compact was to ensure that employers broke free from the iron clad grip of the i away and the employers took back their right for themselves to hire those that they wanted on the waterfront and with regard to racial discrimination it shows that the shape up which was repeatedly denounced as the root of the evil and corrupt hiring practices was specifically shown to facilitate not only criminal activity and corruption but also racial discrimination that you were employed to be part of the record where congress took into account racial discrimination absolutely so we have we have the state hearings and then we have the congressional hearings hearings that was laid out both in our brief and in the appendix you have the testimony of the aisle a lot a secretary treasurer cliff s j cups and he testifies he says that the longshoreman have been the instrument he's the president of a predominantly black and he says that only one fifth of his five hundred person local was given regular work and he testified that the shape up in his words has been the instrument of testimony but then you get into the crime commission special counsel at the dewey hearings actually produces a newsletter and it's in title negro longshoreman and it was a march in one nine hundred fifty two newsletter that was authored by the rank and file longshore person longshoreman of that local and they again the newsletter says we need well longshoremen are discriminated against first by our own international officials  entirely and substituting a new form of hiring was highly desirable to attain the very end of the aisle a local wanted to accomplish which was the elimination of racial discrimination entirely w was a problem back nine hundred fifty three does that mean that the commission cannot at any time support who amendment requirement that women be equal consideration absolutely not your third circuit and courts say this was an extraordinary compact because it didn't just approve or give consent to the compact between the two states but it gave consent to a need for legislation going forward legislative history and first you go into the triple and ca's argument is that the findings in the declarations they can't they don't state the purposes of the act right and they say that article one in their brief is the least likely place to find the purposes of the compact and that congress didn't treat the purposes the compact as a coded reference to article one well you go on into the introduction of the bill by senator robert hendricks and and he declared these are his w that he passed the floor to tenet senator charles choky and he described him as having equal leading hand in the public disclosure of the findings that were to elated in article one and the first thing that senator only members in new orleans and he discovered that the black members were charged more than twice as much as the initiation fee as the white members the white members were charged one hundred dollars the black members two hundred two dollars and his next words for me are two staring to paraphrase he says man's inhumanity to man is being exemplified in certain labor circles such leader unions had better take cover they're writing for a problem all the time cannot come too soon let us clean them out and then he continues  cry out america unclean unclean kick them out from joe bryan down joe ryan was the president of the aisle and he says kick them out from joe ryan down they are no good they are un american i indict them before the bar of the senate is the this the issue that has been brought up today and that has been brief is a palin's are saying look it's not in the statute nowhere in the compact does it say anything about the eradication of discriminatory hiring practices based on race saying it didn't need to because in one thousand nine hundred fifty three when the compact was approved there was no closed register there was no concept of an employee sponsorship right or employer sponsorship all someone had to do was show up at the commission file an application and they if if they met the qualifications they would be approved and what congress actually did was they included a provision that said that it shall be that it was illegal to interfere or to induce were to intimidate anyone who was going to try to do that and so that was the only safeguard that they needed right and so what happens is that we fast forward say we need to make sure if there's going to be employer sponsored employer selection it's no longer first come first or it's no longer an open register we need to make sure there's fair and nondiscriminatory language in there and we invited we held appellant's and no one objected to this we said that we specifically in for included the phrase to protect against possible discrimination this was in our memorandum in mckinney's we said historically the commission had steadfastly made sure that all person nondiscriminatory this is outside of your authority waterfront commission if there had been an issue with five people and with the certification it should have been brought up their view it seems entirely discrimination policies were seeing to need to be such a good thing why would anybody really be in opposition to it so maybe you can tell me what really is the pressure what is the animosity towards this measure of the commission to implement anti discrimination well essentially we the thing and this is where we get into why the division get there's a division of human rights claim pending but we shouldn't have to wait until we get to that point where there is evidence of massive discrimination in the port and other agencies ha process we don't want to dictate to them how they should hire we're not interfering with their methods all we're saying is certain you've come up with your hiring plan you've come up with your agreement but the agreement can't be we employers if we need someone we go to the aisle a and whoever the aisle a gives us we take unless of course there are there are no skills or qualifications right but whatever the island is we have to go to the pool of the iowa someone we said ok well you have to certify we were told well we can't certify because we don't know how the aisle a got them but we can tell you this of the pool that's given to us by the i o a we can tell you we are not discriminating against them we s groups will be added but now this language will the parties bill leave that this language is more than adequate to assure the person sponsored will include a number of women blacks and hispanics how do you go now however many years later and say this is unconstitutional waterfront commission you have no business doing this it just completely you know one point a student council said this doesn't appear in the act again it didn't have to because at the time there was a completely different hiring framework one thing if i may i'd like to get into the issue of judicial deference right because we were asked to grade whether or not the judicial deference is entitle to a by state agency and when we receive the court's order we conducted an extensive nationwide search we found numerous cases and the first literally had our name written all over it it was baazi versus the waterfront commission and that he's with extensively on the four point four d d a registered issue but there the issue was whether or not the waterfront commission had properly interpreted in one thousand nine hundred two amended to section five and the very first principle articulated by the court was that no interpretation given a statute by the agency charged with this in forstmann is as a general matter given great deference judicial deference a lot of the interpretation is neither irrational unreasonable nor inconsistent with the governing unambiguous meaning of the compact and the question is has congress specifically addressed this question and we say yes it has when you talk about corrupt hiring practices when you look at the elimination of oppressive and evil hiring practices one can't help but say this includes this school a nation based on race sex ethnicity etc but if you still say that this is ambiguous and we need to go one step further and that is where i present this beautiful legislative history that i went into where we have the legislators at both the state level and the congressional level who were advocating for those who were specifically talking about racial discrimination one of the things in palin's reply briefs they said well you know congressman told me he was talking about initiation fees you know blasphemy because of pay twice as much well how does that have anything to do with racial discrimination in the employment process well back in one thousand fifty three one hundred dollars was a lot of money two hundred and two dollars was even that much more and so if the black individual could not afford that two hundred  initiation fee guess what he did not go to work on the waterfront and that was an effective way of discriminating against that individual in employment and so when you have we then we say earlier in counsel said when you look at the compact no one in this room would agree that includes racial discrimination well i would say i respectfully disagree as were the six interns from the waterfront commission who are sitting in the back we disagree based on the plan plain language of the act but also based on the discrepancy between the two sides we look at look at eighteen zero for dash one local eighteen fourteen these are the ones in new york new jersey and we say there is a huge run local it was ninety nine percent there was one percent african american in a local and when you look at the fact that located in newark new jersey and elizabeth and you look at the surrounding geographical regions we responded that the numbers were staggering and these numbers were actually picked up by the division of human rights and the statistics are in their complaint now the n y s a the aisle a they'll come back and they'll give you different percentages based on the entire report from me no doubt in nova scotia as opposed to just the port of new york and new jersey we look at those who are registered with us they look at everyone who is important but in any of that we say how can this be a bad thing panel has pointed out we're asking them to certify hiring was fair nondiscriminatory how is this something to be objected to you know when we look at judicial deference the parties notably didn't  distinguish or mention any of the cases that we brought up but they did bring up one case which we thought was interesting and it was the waterfront commission of new york harbor versus construction and marine equipment case and the issue there was whether or not state or federal law should be applied when were when when they're discussing judicial deference the n s a says well they said it should be state deference and this goes against the waterfront commission if you actually look at the case the court said we're going to look at it under state law but even then and the court listed the factors that the courts generally place considerable weight on the construction of a statute given by the agency charged with enforcing it and so on and so if so where there's a presumption of reasonableness substantial deference has to be awarded and the courts it should be noted however that these decisions on these issues would be the same thing if decided under federal law i will rely on my so in the body case the issue was we had two wrong shore men who were true who were admitted through the a register who were trying to parlay their way into the deep sea register and we said you can't do that because section section five p they do not permit those who are coming in under the a register to be included in the wrong shermans register and we were saying at least back at that time the provisions having to do with first come first serve back when the body case transpired the first serve first come first served and the fact that the register had to be open in order for longshoreman to be admitted to the register we're saying that doesn't apply  the maintenance workers so we had worse it were saying the same thing today there is a provision section five p i under section five which specifically refers to those me into work or so who are continually being brought in as long shore persons on that section five p five and there it says notwithstanding any other provision of this act the commission may include in the wrong sherman's register under such terms and conditions as the commission may prescribe and then it lists seven different categories and within one of those categories are those maintenance workers that are continually being brought in to the a register we are not changing our position from b segments of it to apply to different people they that is what it is called when it was an ad when in fact when you look at the vast legislative history of when the nine hundred ninety nine amendment was the opening statement was we're talking about peat which is referred to as the deep sea register statute so it doesn't apply to us at all and now in two thousand and two and never has we've never been required to submit  any sort of certification of any sort suddenly in two thousand and thirteen for reasons best known to themselves the commission decided we're not we're going to impose these obligations under a statute that has never before applied to you and that we've taken a position in court doesn't apply and they can't do that secondly again your honor i would observe counsel is taking two contradictory positions what is that was well know that discrimination was a serious issue in one thousand fifty three and that's why it's wrong that was clearly what they had in mind when they instituted it when they said corruption but then says well it really only became evident as a state legislature it again refer to the unique thing here state legislatures being permitted to amend a federal law and therefore has to be within the narrow scope of what was protected what was i mean corrupt doesn't necessarily mean there was a passing of money who rushed i think in this context means that there were preferences a given i arranged to certain groups and that there were relies on saying that article one sets forth that the basis for the statute the the body of the statute sets forth what it is prohibiting and what the practices work and i  without casting aspersions on a congress of sixty some odd years ago is an awfully good likelihood that maybe they didn't put something in about the square imitation because they would have had a concern that it would not of passed the congress in one nine hundred fifty three mr hughes i think  in percent latino in response to your question we have over eleven percent women and it's gotten better because the industry adopted a hiring plan with getting fifty one percent of the of the pearls of the new hires it was closed for a number of years when the registry was closed and the industry can't hire people if you remember mr crusoe spoke about the problems in the industry calls about container was a sion the register was closed except for as i said you know not not insured opens the statistics are going to improve you know the workforce atros on nicely rushes the demographics change the world changes but the workforce is staying the same because there's no opportunity unfortunately