Employers of International Longshoremen’s Association mechanics in the Port of New York and New Jersey say the Waterfront Commission’s new hiring rules represent “mission creep” and “regulatory adventurism.”
The commission’s new rules are aggravating labor shortages that threaten New York-New Jersey with a loss of business, the Metropolitan Marine Management Contractors Association said in court filings.
The Metro joined the New York Shipping Association and the ILA in seeking a preliminary injunction to block the commission from applying new rules to restrict the longstanding practice of union referrals of candidates for mechanics’ jobs.
U.S. District Judge Susan Wigenton has scheduled a hearing Thursday in Newark on the injunction request.
The injunction request is related to a lawsuit the NYSA, ILA, and Metro filed last month. The lawsuit accuses the commission of overstepping its statutory authority by interfering in collective bargaining agreements between employer groups and the ILA.
The Waterfront Commission says it has a statutory mandate to ensure that hiring is fair and nondiscriminatory, and to oppose efforts “to institutionalize discrimination through collective barganing agreements.”
Commission officials have complained that the New York-New Jersey dockworker force isn’t diverse enough, and that some ILA locals are mostly white males.
NYSA officials say the port-wide current workforce is 22.7 percent black, 12 percent Hispanic, and 9.7 percent female. They say most retirees during the next several months will be white males, and that 313 applicants the NYSA has sent to the commission as potential replacements are 33.5 percent black, 15 percent Hispanic and 10.5 percent female.
The Waterfront Commission is unique to New York-New Jersey. It was created in 1953 to combat crime on the docks. Its duties include policing waterfront crime and licensing and registering dockworkers and companies, in addition to regulating the port’s register of ILA longshoremen and clerks.
The commission’s current push on diversity is partly aimed at strengthening the agency’s hand in trying to change a waterfront culture that the agency’s current officials say encourages favoritism and organized crime influence.
Employers and the ILA insist the commission is stretching its authority too far by trying to reduce union involvement in the hiring process.
The commission doesn’t have statutory authority to “micromanage employers’ hiring decisions” or “freelance in the area of equal employment opportunity enforcement,” the Metro association said in a court filing.
“This case arises because the Waterfront Commission has yielded to a temptation that haunts every regulatory agency. It is the temptation to expand its purposes and authority unilaterally, often called ‘mission creep,’” the association said.
The commission’s written response to the injunction request is due to be filed by Tuesday.
Thurday’s scheduled hearing involves approximately 925 mechanics covered by the Metro-ILA contract and registered by the Waterfront Commission.
The Metro contract is separate from the NYSA-ILA contract covering approximately 3,500 longshoremen and clerks.
The commission has restricted the size of the port’s registry of longshoremen and clerks since 1966, when employers were anxious to limit costs under the ILA’s guaranteed annual income program.
Guaranteed annual income was eliminated two decades ago, but the commission says it still needs to regulate the size of the workforce in order to prevent labor surpluses that encourage job-selling and other rackets.
ILA mechanics hired by companies in the Metro association have been in a separate workforce from longshoremen and clerks. The commission did not use the Waterfront Commission Act’s 5-p to restrict the number of mechanics who could be hired, as the agency did for other ILA workers.
“The commission consistently maintained the separate identities of the two workforces under the two collective bargaining agreements for decades, leaving MMMCA and the ILA to establish through collective bargaining the hiring practices for M&R longshoremen,” the Metro association said.
That changed on Sept. 9, when the commission amended its rules to require the Metro association and ILA counterparts to follow a rule requiring employers to certify that employees were selected in compliance with antidiscrimination laws.
The rules change, imposed earlier this year on the NYSA and ILA, is being challenged by the employers and union. The new rules changed a longstanding practice under which ILA locals referred job applicants to employers, who screened the candidates and sent them to the Waterfront Commission for criminal background checks.
The commission has said that the two unions that represent Metro mechanics are overwhelmingly white and male. The commission said New Jersey-based Local 1804-1 is less than 2 percent African-American and that the much smaller Local 1814 in Brooklyn is less than 8 percent black.
The Metro and NYSA say the new rules conflict with their ILA contracts. “The commission will not accept the sponsoring employer’s certification if the union refers the candidates as provided in the collective bargaining agreement” Metro President J. Randolph Brown said in a court affidavit.
Brown said the dispute has slowed the hiring of maintenance workers and created shortages that have “decimated” training for new technology. “Employers need mechanics for liner operations and cannot spare them to attend training,” he said.
John Atkins, chief operating officer of GCT USA, which owns and operates Global Terminal and New York Container Terminal, said GCT’s units that employ Metro mechanics have been short of labor. Global’s new 18-bay repair shop is working at only half-capacity because of a shortage of ILA maintenance-and-repair workers, Atkins said in a court affidavit.