INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 542 v. DELAWARE RIVER AND BAY AUTHORITY
Filing
33
OPINION. Signed by Judge Renee Marie Bumb on 11/18/2016. (TH, )
[Dkt. No. 12, 22, 27]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
INTERNATIONAL UNION OF
OPERATING ENGINEERS LOCAL 542;
MARINE ENGINEERS BENEFICIAL
ASSOCIATION,
Plaintiffs,
Civil No. 15-6019 (RMB/KMW)
OPINION
v.
DELAWARE RIVER AND BAY
AUTHORITY,
Defendant.
Three motions are currently pending before the Court.
Defendant Delaware River and Bay Authority (the “DRBA”) has
filed both a motion for judgment on the pleadings and a motion
to dismiss the action as moot.
Def.’s Mot. for Judgment on the
Pleadings [Dkt. No. 12]; Mot. Dismiss [Dkt. No. 27].
Plaintiffs
International Union of Operating Engineers Local 542 (“Local
542”) and Marine Engineers Beneficial Association (“Marine
Engineers”) (collectively, the “Unions”) have cross-moved for
judgment on the pleadings.
Pleadings [Dkt. No. 22].
Pls.’ Mot. for Judgment on the
The underlying action seeks a
declaration that collective bargaining agreements between the
Unions and the DRBA entered into in 2014 are binding, valid and
enforceable.
For the reasons set forth below, the Court DENIES
the motion to dismiss this action as moot and DENIES the Unions’
motion for judgment on the pleadings.
The Court GRANTS the
DRBA’s motion for judgment on the pleadings.
I.
BACKGROUND
This case concerns a 2014 collective bargaining agreement
between the Unions and DRBA that was cancelled by New Jersey
Governor Chris Christie.
The Unions are both alleged to be the
sole bargaining representatives on behalf of their
constituencies, who are DRBA employees.
17.
Am. Compl. ¶¶ 1, 3, 9,
The DRBA is a bi-state agency created pursuant to a compact
between New Jersey and Delaware (the “Compact”).
Id. ¶ 5.
The
Compact was created with Congressional approval in 1962 pursuant
to the Compact Clause of the United States Constitution.
U.S.
Const. art. X, § 10, cl. 3 (“No State shall, without the Consent
of Congress . . . enter into any Agreement or Compact with
another State . . . .”).
As part of its responsibilities, the
DRBA operates the Delaware Memorial Bridge, the Cape May/Lewes
Ferry and airports in Cape May, New Jersey and Delaware.
Am.
Compl. ¶ 5.
In 2012, the DRBA began negotiating with the Unions to
reach new collective bargaining agreements.
19.
Id. ¶¶ 10, 11, 18,
On March 26, 2014, the DRBA reached tentative agreements to
do so. Id. at ¶¶ 10, 18.
These agreements covered the time
period for: (a) July 1, 2012 through December 31, 2015 for
2
Marine Engineers, and (b) January 1, 2013 through December 31,
2015 for Local 542.
Id.
Both tentative agreements required
certain conditions to be met for them to become effective.
Id.
One condition in each – and the condition most relevant to this
lawsuit – was that the tentative agreement be ratified by the
associated labor union and the DRBA.
Id. ¶ 11, 19.
The Compact sets forth the composition of the Board of
Commissioners that was to approve the tentative agreements on
behalf of the DRBA.
Pursuant to Article V of the Compact, the
Board is comprised of twelve Commissioners: six from Delaware
and six from New Jersey.
N.J.S.A. § 32:11E-1, art. V(a).
Pursuant to the express language of Article VI, a super-majority
of four Commissioners from each state is required for the Board
to take action:
The Commissioners shall have charge of the Authority’s
property and affairs and shall, for the purpose of doing
business, constitute a Board, but no action of the
Commissioners shall be binding or effective unless taken
at a meeting at which at least four Commissioners from
each State are present, and unless at least four
Commissioners from each state shall vote in favor
thereof.
Id. art. VI (emphasis added).
Moreover, under the same Article,
votes are subject to “cancellation” by the governor of the
Commissioner’s respective state:
The vote of any one or more of the Commissioners from
each State shall be subject to cancellation by the
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Governor of such State at any time within 10 days
(Saturdays, Sundays, and public holidays in the
particular State excepted) after receipt at the
Governor’s office of a certified copy of the minutes of
the meeting at which such vote was taken. Each state
may provide by law for the manner of delivery of such
minutes and for notification of the action thereon.
Id.
Pursuant to the Compact, New Jersey has adopted by statute
a method for handling the delivery of minutes and the
cancellation of votes, N.J.S.A. § 32:11E-6.
With regard to the
cancellation of minutes, the statute outlines the exact
obligations of the Governor:
In the event the Governor shall act to cancel the vote
of any 1 or more of the commissioners for the State of
New Jersey, he shall sign a statement of cancellation,
identifying the vote so canceled by reference to the
minutes where said vote appears, on or before the
termination of the time provided for such by Article VI
of [the Compact], and the said vote shall thereupon be
deemed to be cancelled. . . . Except as provided in the
act, no action taken at any meeting of [the DRBA] by any
commissioner appointed from the State of New Jersey
shall have any force or effect until the expiration of
the period herein provided without cancellation by the
Governor, or his approval, whichever first occurs.
Id.
Against this backdrop, the Board of Commissioners of the
DRBA commenced a vote on a resolution to ratify the tentative
agreements on April 7, 2014.
Resolution 14-07 passed by a roll
call vote of 10-1, with one Commissioner recusing.
Ans. ¶ 12.
Id. ¶ 24;
The vote against and the recusal were both by New
Jersey Commissioners.
Am. Compl. ¶ 24.
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Accordingly, 6
Commissioners from Delaware voted in favor of the resolution and
4 Commissioners from New Jersey voted in favor.
See id.
As pled in the Amended Complaint, consistent with the
Compact, the minutes of the Board meeting were then forwarded on
to the Governor of New Jersey.
Id. ¶ 24.
On April 22, 2014,1
Governor Christie “vetoed” the actions by the New Jersey
Commissioners, explaining in substantive part:
In accordance with the authorization contained in
Article VI of the Delaware-New Jersey Compact codified
as N.J.S.A. 32:11E-1 et seq., I hereby return the minutes
with a veto of Resolution 14-07, entitled “Authorizing
Three Collective Bargaining Agreements and Salary
Increases for Non-Union Employees.”
Ans. Ex. 4.
In the wake of Governor Christie’s “veto” of the Board’s
vote, the Unions filed the instant lawsuit in New Jersey state
court on July 10, 2015.
Not. Removal ¶ 4 [Dkt. No. 1].
That
action was removed to this Court on August 5, 2015, with the
Amended Complaint thereafter filed on August 24, 2015.
Compl. [Dkt. No. 6].
Am.
Jurisdiction for that removal was premised
on federal question jurisdiction over bi-state compacts.
Int’l
Union of Operating Eng’rs, Local 542 v. Del. River Joint Toll
Bridge Comm’n, 311 F.3d 273, 275 (3d Cir. 2002) (“The
construction of a bi-state compact that has been consented to by
1
The Unions do not contend that this letter was not timely.
5
Congress pursuant to the Compact Clause presents a federal
question.”) (citing Cuyler v. Adams, 449 U.S. 433, 438 (1981)).
While the matter was pending before this Court, the parties
continued to negotiate another collective bargaining agreement.
As set forth in the Certification of Vincent P. Meconi, attached
as an exhibit to DRBA’s motion to dismiss, “[o]n February 17,
2016, tentative agreements were approved by the DRBA Board of
Commissions with respect to Local 542 and [Marine Engineers].”
Meconi Cert. ¶ 2.
Id. ¶ 3.
The gubernatorial veto period then expired.
A collective bargaining agreement was then executed,
thereby discharging the obligations in the tentative agreement
to finalize them.
Id. ¶ 4.
It is the consummation of this 2016
collective bargaining agreement that DRBA contends renders this
action moot.
II.
MOOTNESS
The Court first addresses the issue of whether the Unions’
action is rendered moot by the 2016 Agreements.2
Federal courts
are not empowered to decide moot issues, as the United States
Constitution limits the exercise of judicial power to “cases or
controversies”.
See U.S. Const. art. III, § 2, cl. 1; Doe v.
Delie, 257 F.3d, 313 (3d Cir. 2001) (citing North Carolina v.
The parties do not appear to contest the ability of the Court
to resolve the issue of mootness based on the record and
allegations currently before it.
2
6
Rice, 404 U.S. 244, 246 (1971)).
To avoid dismissal on the
grounds of mootness, a controversy must exist at all stages of
review.
See Doe, 257 F.3d at 313 (citing New Jersey Turnpike
Auth. v. Jersey Central Power & Light, 772 F.2d 25, 31 (3d Cir.
1985)).
“This means that, throughout the litigation, the
plaintiff must have suffered, or be threatened with, an actual
injury traceable to the defendant and likely to be redressed by
a favorable judicial decision.”
Spencer v. Kemna, 523 U.S. 1, 7
(1998).
The 2014 Agreements and the 2016 Agreements have several
notable differences.3
Specifically, Frank Bankard, a business
representative for Local 542, sets forth in his Affidavit two
key differences: (1) the 2014 Agreements provided the Unions
with a retroactive raise in 2014 of 1.9%, while the 2016
agreements contain no such raise; and (2) the 2014 Local 542
tentative agreement divided the costs of arbitration evenly
between the parties, while the 2016 version pushed the costs
upon the loser of the arbitration, which “inhibits the Unions’
ability to go to arbitration as they do not have the resources
of the Authority.”
Bankard Aff. ¶¶ 1, 4-5.
The Court finds
Despite its argument that the Unions entered the 2016
agreements voluntarily, the DRBA has not pointed to any language
in the 2016 Agreements which purports to invalidate or override
the 2014 Agreements.
3
7
that these differences both render the enforceability of the
2014 Agreements a non-moot case or controversy.4
With regard to the retroactive raise, a 1.9% raise is
present in the 2014 Agreements, but not in the 2016 Agreements.
If the 2014 Agreements were declared valid and enforceable by
this Court, the Unions would have a right to that retroactive
raise.
That is sufficient under the case or controversy
requirement.
The DRBA argues that this raise is of little
consequence because the 2016 collective bargaining agreement “is
for a longer term.”
It adds, “[i]n the 2014 tentative agreement
that was voided by Governor Christie, the wage increases were
1.9%, 1.9%, and 1.9% for 2013, 2014, and 2015, with the contract
expiring on December 31, 2015.
Under the 2016 fully-executed
collective bargaining agreement, the terms are 0%, 0%, 1.9%,
1.9%, and 1.9% for 2013 to 2017.”
3.
Def.’s Mot. Dismiss Rep. at
Put simply, this argument does not convince the Court that
there is no injury that accrues to the Unions if the 2014
agreements are not enforced.
The fact that different and
unrelated benefits – even better benefits – may accrue in a
Regardless of Mr. Bankard’s involvement with the MEBA
negotiations, which the DRBA contests, it is clear from an
analysis of the underlying MEBA 2014 and 2016 tentative
agreements that the retroactive wage difference is present.
Meconi Cert. Ex. B at 1; Am. Compl. Ex. D at 1.
4
8
different year on a separate contract does not mean the Unions
are not injured if the 2014 agreements are not enforced.
Likewise, and in addition, if the Court declared the 2014
Local 542 collective bargaining agreement binding and
enforceable, the arbitration agreement between that union and
the DRBA would be subject to an even split of arbitration fees,
whereas it is a winner-take-all system under the 2016 version.
The DRBA argues that it is speculative that an actual injury
will arise, because it would rely on the assumption that Local
542 loses more arbitrations than it wins.
The Court does not
agree that the uncertainty of a negotiated-for contract clause
being used renders the nullification of the clause a conjectural
injury.
Mr. Bankard’s affidavit sets forth that the financial
condition of the Unions would render them less likely to go to
arbitration in a winner-take-all scheme.
Bankard Aff. ¶ 5.
Particularly where the DRBA has conceded that this provision was
a change in the scheme prior to the 2014 Agreements, Def.’s Mot.
Dismiss Rep. at 4, the Court believes that the Local 542 has
alleged an actual injury, particularly when considered in
addition to the clear denial of a 2014 retroactive raise.
In light of the above, a declaration by this Court that the
2014 Agreements are enforceable would redress the injury that is
the deprivation of the retroactive raise and the arbitration-fee
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split language under the 2014 Agreements.
The action is not
moot and the DRBA’s motion to dismiss on that ground is DENIED.
III. MOTION FOR JUDGMENT ON THE PLEADINGS LEGAL STANDARD
The standard for review of a plaintiff's complaint under
Rule 12(c) is identical to that under Federal Rule of Civil
Procedure 12(b)(6).
See Fed. R. Civ. P. 12(h)(2); see also
Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir.
1991).
“Dismissal of a complaint pursuant to Rule 12(b)(6) is
proper ‘only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations.’”
Hackensack Riverkeeper, Inc. v. Del. Ostego
Corp., 450 F.Supp.2d 467, 484 (D.N.J. 2006) (quoting Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984)).
The allegations
contained in the complaint will be accepted as true.
Beto, 405 U.S. 319, 322 (1972).
Cruz v.
Plaintiff will also be “given
the benefit of every favorable inference that can be drawn from
those allegations.”
(3d Cir. 1991).
Schrob v. Catterson, 948 F.2d 1402, 1405
However, the plaintiff must make factual
allegations and cannot rely on “conclusory recitations of law.”
Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173,
179 (3d Cir. 1988).
IV.
ANALYSIS
Both parties have moved for judgment on the pleadings.
Thinking the issue was the core of the case, the DRBA argued in
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its opening brief that language “vetoing” the Board’s vote
instead of “canceling” votes of Commissioners is irrelevant and
Governor Christie’s actions sufficiently defeated the passage of
Resolution 14-07.
In their responsive briefing, the Unions
disavowed this theory of the case and expressly conceded that
Governor Christie’s letter “vetoing” the New Jersey
Commissioners’ vote sufficiently acted as a cancellation: “The
Plaintiffs’ complaint concedes that the Governor of New Jersey’s
veto was in fact a cancellation of the New Jersey Commissioners
vote.”5
Instead, the Unions offered a different theory: Governor
Christie was able to cancel the votes of the New Jersey
Commissioners who voted in favor of Resolution 14-07, but was
The DRBA cannot be blamed for this misunderstanding, as the
Unions’ Amended Complaint certainly appears to premise their
claim to relief on the Governor’s use of “veto” instead of
“cancel”. Am. Compl. ¶ 27 (“Governor Christie did not cancel
the votes of the [C]ommissioners he in fact vetoed the all [sic]
of the actions of the New Jersey Commissioners.”). Moreover,
the responsive briefing, despite admitting the cancelled votes
in favor of the Resolution, still asserts that “[t]he
Defendant’s reliance on using the term veto and cancel
interchangeably is misplaced. As can be seen by both the
language of the Compact and the language of N.J.S.A. §32:11 E-6,
it is clear that the terminology used is cancel, not veto. As
such the Governor of New Jersey did not effectively cancel the
votes by the Commissioners.”). Nevertheless, the Court takes
the Unions’ concession in their briefing that Governor
Christie’s letter cancelled the Commissioners’ votes at their
word, particularly where the substance of the responsive brief
responds not to the DRBA’s arguments that “veto” effectively
canceled the votes, but rather that the “key issue this matter
turns on . . . whether the Governor can cancel an abstained
vote.” Pls. Mot. for Judgment on the Pleadings Br. at 10. As
noted, infra, this argument does not prevail, either.
5
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unable to cancel the vote of the New Jersey Commissioner who
abstained from voting.
Pls.’ Mot. for Judgment on the Pleadings
Br. at 9 (“Stripped of its hyperbole the key issue in this
matter is whether the Governor of New Jersey can cancel the vote
of a Commissioner who abstained from the vote.”).
If the
Governor was not able to so cancel a vote, “then the Unions must
prevail as the vote was six in favor of passing the Resolution,
five opposed to the resolution, and one abstention.”
Id.
The
Unions are incorrect.
The DRBA, based on the final allegation of the Complaint,
had anticipated this alternative theory of the case and also
addressed it in their opening brief:
The Amended Complaint contains a throw-away allegation
that, even if the Letter had constituted an effective
exercise of the Governor’s cancellation authority,
“Christie could not cancel the abstention vote. This
left the final vote of six to five in favor of
ratification.” [Am. Compl. ¶ 28]. It is unclear how
Plaintiffs reached a tally of six to five in favor of
ratification.” But even were their tally correct, such
a tally would fail to “ratify” the Agreements.
As
discussed in [an earlier portion of the brief], Article
VI states that no action of the Board shall be binding
or effective unless at least four Commissioners from New
Jersey and at least four Commissioners from Delaware
vote in favor of the Action. A “six to five” vote fails
to meet this plain requirement. Therefore, Plaintiffs’
allegation in paragraph 28 of the Amended Complaint must
be rejected.
Def.’s Mot. for Judgment on the Pleadings Br. at 28 n.4.
DRBA is correct.
The
As noted above, Article VI contains a super-
majority requirement that all actions be passed not only by a
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majority, but by four Commissioners from each state.
N.J.S.A. §
32:11E-1, art. VI (“[N]o action of the Commissioners shall be
binding or effective unless taken at a meeting at which at least
four Commissioners from each State are present, and unless at
least four Commissioners from each state shall vote in favor
thereof.”).
By the Unions’ express admission that Governor
Christie cancelled the votes of New Jersey Commissioners voting
in favor of the Resolution, supra, the Unions have, in effect,
also admitted that the vote did not pass Article VI muster.
In
fact, by definition, no vote of six votes could ever carry a
resolution.
Tellingly, in their responsive briefing, the Unions do not
address the Article VI issue raised by the DRBA.
Indeed, the
only references to Article VI contained anywhere in their brief
are in quotes from other documents.
the Pleadings Br. at 7, 8.
Pls.’ Mot. for Judgment on
Instead, the Unions double down on
the fact that the resolution, even with canceled votes, passed
with six votes in favor and five opposed.
Id. at 9 (“[T]he
Governor of New Jersey could not cancel a vote [of] a member of
the board who abstained . . . [as such,] the vote was six in
favor of passing the Resolution, five opposed to the resolution,
and one abstention.”)
As the DRBA rightly points out, the
Unions’ extended discussion of whether the “abstention” was
actually a “recusal”, and whether the Governor could cancel an
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abstention or recusal, is of absolutely no moment.
If,
regardless of whether the abstention or recusal could have been
cancelled, the Resolution only “passed” with six votes, it did
not pass at all under the express terms of the Compact.
Because
the Unions have woefully failed to address this point in their
opposition brief,6 and because the Court agrees with the DRBA’s
reading of Article VI, the Court finds that judgment on the
pleadings in favor of the DRBA is proper.7
V.
CONCLUSION
By this Court’s reading of the Unions’ argument and as
alleged in the Amended Complaint, the Unions have conceded that
Governor Christie’s April 2014 letter cancelled the votes of the
New Jersey Commissioners who voted in favor of Resolution 14-07,
which purported to ratify the 2014 tentative agreements between
The Unions’ request to file a sur-reply – which was tabled
during the briefing on the mootness issue – does not mitigate
their opposition brief’s silence on the issue, as the DRBA
clearly developed the Article VI argument in its opening brief
and the Court would have expected a response to it in the
opposition brief, without the need of a sur-reply.
7 Should the Unions feel that the Court has misconstrued their
argument and that the issue of Governor Christie’s letter
reading “veto” instead of “cancel” is a part of the case, it may
move for reconsideration of the Court’s ruling under the
applicable rules, setting forth a clear explanation of why that
issue was not conceded. That said, having read the DRBA’s
briefing on the issue, the Court is inclined to agree with it
that such an argument would place form over substance, and
various factors render Governor Christie’s actions sufficient to
invalidate the Resolution. Nevertheless, that issue – because
of the Unions’ explicit framing of their argument – is not
before the Court, let alone with sufficient clarity.
6
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the DRBA and the Unions.
Under Article VI of the Compact,
however, four New Jersey Commissioners are required to vote in
favor of a resolution for it to pass.
The Unions have ignored
this requirement in the Amended Complaint and their brief.
While the action is not moot, the Unions have failed to state a
claim and judgment on the pleadings is therefore proper.
Accordingly, the DRBA’s motion to dismiss and the Unions’ motion
for judgment on the pleadings are DENIED.
The DRBA’s motion for
judgment on the pleadings is GRANTED.
DATED: November 18, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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