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.
2

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.
3

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;
4

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 
5

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
6

Longshoremen’s Association AFL-CIO Local1804-1,

and International Longshoremen’s Association AFLCIO 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 
7

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 
8

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).
9

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).
10

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 
11

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 “fivedigit” 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). 
12

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 
13

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

 Aregistrants 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.
14

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 
15

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.
16

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.
17

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
18

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
19

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 antidiscrimination 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).
20

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 nondiscriminatory 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 
21

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.” 
22

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:
23

Q: And you think [the shapeup] 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?
24

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, Godfearing 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 
25

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 Aregistrants, 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.
26

based, only applies to deep-sea longshoremen, not Aregistrants. 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 
27

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 Aregistrants 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 
28

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 
29

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 
30

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 
31

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 BiMetallic 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.
32

More importantly, the Commission gave the NYSAILA 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.