DAGGETT et al v. WATERFRONT COMMISSION OF NEW YORK HARBOR

Filing 49

OPINION. Signed by Judge Esther Salas on 8/24/17. (DD, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HAROLD J. DAGGETT, Individually and in his
capacity as President of the International
Longshoremen’s Association, AFL-CIO;
DENNIS DAGGETT, Individually and in his capacity
as President of Local 1804-1, International
Longshoremen’s Association, AFL-CIO;
WM. BERNARD DUDLEY, Individually and in his
capacity as President of Local 1233, International
Longshoremen’s Association, AFL-CIO;
RICHARD SUAREZ, Individually and in his capacity
as President of Local 1235, International
Longshoremen’s Association, AFL-CIO;
DAVID CICALESE, Individually and in his capacity as
President of Local 1, International Longshoremen’s
Association, AFL-CIO; and
JAMES McNAMARA, Individually and as the
Public Relations Director of the International
Longshoremen’s Association, AFL-CIO,
Plaintiffs,
v.
WATERFRONT COMMISSION OF
NEW YORK HARBOR,
Defendant.

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No. 16-cv-4314 (ES)
OPINION

SALAS, DISTRICT JUDGE
On the morning of January 29, 2016, certain workers at marine terminals on the New
Jersey side of the Port of New York and New Jersey stopped working. These individuals are
represented by a union called the International Longshoremen’s Association, AFL-CIO (the
“ILA”). On behalf of its constituent locals, the ILA negotiates and administers a collective
bargaining agreement with the New York Shipping Association (the “NYSA”)—an entity that
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represents employers in the Port. As determined by an emergency arbitration in the afternoon of
January 29 itself, the work stoppage violated a no-strike provision of the NYSA-ILA collective
bargaining agreement (the “CBA”).
Almost immediately after the work stoppage, Defendant Waterfront Commission of New
York Harbor (the “Commission”) started serving subpoenas on ILA members for testimony
relating to its investigation into the work stoppage. As the Third Circuit recently explained, New
Jersey and New York long ago entered into a Compact that created the Commission “to, among
other things, eliminate corrupt hiring practices” on the New York/New Jersey waterfront. N.Y.
Shipping Ass’n Inc. v. Waterfront Comm’n of N.Y. Harbor, 835 F.3d 344, 348 (3d Cir. 2016).
After months of issuing these subpoenas to rank-and-file ILA members, the Commission
issued subpoenas to Plaintiffs. Plaintiffs subsequently filed this action to quash the subpoenas
because, as discussed below, the subpoenas purportedly lack statutory authority and violate the
New Jersey Constitution. Defendant moves to dismiss Plaintiffs’ Complaint under Federal Rule
of Civil Procedure 12(b)(6). (D.E. No. 11).
Having considered the submissions made in support of and in opposition to Defendant’s
motion, the Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b). For the
reasons in this Opinion, the Court GRANTS the Commission’s motion and dismisses the
Complaint without prejudice.

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Factual Background1

I.

A. The Parties
The ILA represents longshore workers in ports in certain geographic regions, “including
longshore and related craft workers employed by waterfront employers in the Port of New York
and New Jersey” (the “Port”). (D.E. No. 1-1 (“Compl.”) ¶ 3). On behalf of its “constituent
locals,” the ILA “negotiates and administers a collective bargaining agreement with a not-forprofit corporation that represent[s] employers in the Port: the New York Shipping Association,
Inc.” (Id.).
Plaintiff Harold J. Daggett is president of the ILA. (Id. ¶ 3). Plaintiff David Cicalese is
president of Local 1, ILA, AFL-CIO (“Local l”), which “represents . . . clerks and checkers who
are employed by waterfront employers throughout the Port.” (Id. ¶ 4). Plaintiff WM. Bernard
Dudley is president of Local 1233, ILA, AFL-CIO (“Local 1233”), which “represents . . .
longshoremen who are employed in the Port by NYSA’s members in Newark and Elizabeth and
who are responsible for loading and unloading cargo on and off ships.” (Id. ¶ 5). Plaintiff
Richard Suarez is president of Local 1235, ILA, AFL-CIO (“Local 1235”), which “represents . . .
longshoremen who are employed in the Port by NYSA’s members in Newark and Elizabeth, and
who are responsible for loading and unloading cargo on and off ships.” (Id. ¶ 6). Plaintiff
Dennis Daggett is president of Local 1804-1, ILA, AFL-CIO (“Local 1804-1”), which
“represents . . . longshore workers known as maintenance and repair (‘M&R’) workers who are
employed by NYSA’s members on the New Jersey side of the Port and are responsible for the

The Court must accept Plaintiffs’ factual allegations as true for purposes of resolving the pending motion to
dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).
Additional factual allegations are provided elsewhere in this Opinion as relevant to the Court’s analysis.
1

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maintenance and repair of cargo-handling equipment.”

(Id. ¶ 7).

Finally, Plaintiff James

McNamara has the title of “Director of Public Relations” for the ILA. (Id. ¶ 8).
Collectively, these are the “Plaintiffs.” And Local l, Local 1233, Local 1235 and Local
1804-1 are all parties to the CBA with the NYSA. (Id. ¶¶ 4-7).
Defendant Commission is “a body corporate and politic” that is “an instrumentality of the
States of New York and New Jersey.” (Id. ¶ 9); N.J.S.A. § 32:23-7. Its role and function is
discussed below.
B. The Compact
“In 1953, the States of New York and New Jersey each adopted laws that would form the
Waterfront Commission Compact” (the “Compact”), which “was later approved and adopted by
the United States Congress.” (Compl. ¶ 10); see also N.J.S.A. § 32:23-1; Waterfront Comm’n of
N.Y. Harbor v. Elizabeth-Newark Shipping, Inc., 164 F.3d 177, 179 (3d Cir. 1988) (“The
Compact is an interstate agreement entered into between New York and New Jersey with the
consent of Congress.”).2 The Compact set forth (among other things) that New Jersey and New
York “declare that the conditions under which waterfront labor is employed within the Port of
New York district are depressing and degrading to such labor, resulting from the lack of any
systematic method of hiring, the lack of adequate information as to the availability of
employment, [and] corrupt hiring practices.” N.J.S.A. § 32:23-2.3

“Although the Compact is a creature of state legislatures, it is federalized by virtue of congressional
approval pursuant to the Compact Clause of the Constitution, art. I, § 10, cl. 3.” Elizabeth-Newark Shipping, Inc.,
164 F.3d at 180.
2

3

See also N.J.S.A. § 32:23-5 (“The States of New Jersey and New York hereby find and declare that the
occupations of longshoremen, stevedores, pier superintendents, hiring agents and port watchmen are affected with a
public interest requiring their regulation and that such regulation shall be deemed an exercise of the police power of
the two States for the protection of the public safety, welfare, prosperity, health, peace and living conditions of the
people of the two States.”).

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“The Compact, which regulates the employment of waterfront labor in the Port of New
York district, established the Waterfront Commission of New York Harbor . . . .” ElizabethNewark Shipping, Inc., 164 F.3d at 179. Among other powers and duties prescribed by the
Compact, the Commission can “make investigations, collect and compile information concerning
waterfront practices generally within the port of New York district and upon all matters relating
to the accomplishment of the objectives of this [C]ompact.” (Compl. ¶ 12); N.J.S.A. § 32:2310(11). In particular, the Commission has the power “to administer oaths and issue subpoenas to
compel the attendance of witnesses and the giving of testimony and the production of other
evidence.” N.J.S.A. § 32:23-10(8). “Witness” means “any person whose testimony is desired in
any investigation, interview or other proceeding conducted by the [C]ommission pursuant to the
provisions of this act.” Id. § 32:23-85(4).
But the Compact “is not designed and shall not be construed 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 through labor organizations or other representatives of their own choosing.” Id. § 32:23-68.
And “nothing contained in this [C]ompact shall be construed to limit in any way the right of
employees to strike.” Id.
C. The January 29, 2016 Work Stoppage
“On Friday, January 29, 2016, between 10:00 am and 11:00 am, some of the unionrepresented individuals who were working at marine terminals on the New Jersey side of the Port
stopped working, and in some cases walked off their jobs.” (Compl. ¶ 15). “The work stoppage
involved some marine terminals but not others; and consequently, at some locations ILArepresented employees continued to work.” (Id. ¶ 17). Initial news reports “quoted statements

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from an ILA representative stating that he did not know what the work stoppage was about,”
with some reports characterizing “the stoppage as ‘unauthorized by the ILA.’” (Id. ¶ 19).
In light of the work stoppage, the “NYSA filed a grievance pursuant to the grievance
procedure set forth in the CBA between NYSA and the ILA,” which “was accelerated to
arbitration, and as a result, an emergency arbitration was scheduled for 3:00 pm” on January 29th.
(Id. ¶ 20). Before an arbitration decision, the Commission “sent representatives to the Port to
serve handwritten subpoenas on union members who appeared to be not working,” which
“demanded that the workers appear at the Commission’s offices in Manhattan to testify under
oath.” (Id. ¶ 21). The subpoenas “also contained a stern warning about the penalties authorized
for failing to comply with the subpoena’s directives.” (Id. ¶ 22). Further, before the arbitration
was scheduled to begin, the “Commission announced to the media that any port workers who had
engaged in the work stoppage that day were in violation of the law.” (Id. ¶ 23).
“At around 4:00 pm,” the arbitrator issued a ruling that, in relevant part, “order[ed] the
officers of the [ILA] and its constituent locals in the Port of New York and New Jersey to inform
their members that the work stoppages are a violation of the no-strike provision of the NYSAILA Collective Bargaining Agreement.” (Id. ¶ 25). The “ILA took steps to comply with the
arbitrator’s award and inform their members of the arbitrator’s decision” and, further, “released
statements to the media urging its members to return to work.” (Id. ¶ 26).
In the weeks after the work stoppage, the Commission “continued to serve subpoenas on
various rank-and-file ILA members throughout the Port.” (Id. ¶ 28; see also id. ¶ 29 (concerning
statements to media)). In a letter dated February 3, 2016, the Commission’s Deputy Director of

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Law explained that the basis for the subpoenas was “to determine who ordered the walkout and
why.” (Id. ¶ 31).4
D. This Action
On or about May 13, 2016, the Commission issued subpoenas to Plaintiffs. (Id. ¶ 32). In
response to one of the Plaintiffs’ inquiry regarding the basis for these subpoenas, the
Commission’s Director of Law and Licensing stated that the “Commission is investigating the
January 29, 2016 unauthorized walkout by longshore workers at various terminals in the Port of
New York district” and the “interviews will focus on the walkout.” (Id. ¶ 33). After back and
forth between certain Plaintiffs’ counsel and the Commission’s counsel (see id. ¶¶ 33-34),
Plaintiffs then filed the instant action in New Jersey state court—which was subsequently
removed to this Court. (See generally D.E. No. 1).5
The objective of this action is “to quash subpoenas that were issued on May 13, 2016.”
(Compl. ¶ 1). Plaintiffs bring the following three counts, asserting that: (1) the Commission’s
subpoenas “Lack Statutory Authority Because They Infringe on Employees’ Rights to Engage in
Concerted Activities” under N.J.S.A. § 32:23-68 and Section 7 of the National Labor Relations
Act (the “NLRA”); (2) the Commission’s subpoenas “Lack Statutory Authority Because They
Infringe on the Right to Strike” under N.J.S.A. § 32:23-68; and (3) “Any Subpoenas Served for
Plaintiffs’ Private Records Without a Warrant Violate the New Jersey Constitution” under
Article 1, Paragraph 7. (See Compl. ¶¶ 35-60; D.E. No. 17 (“Pl. Opp. Br.”) at 3). They request
this Court to issue a judgment that (1) declares “the outstanding subpoenas void and
For contextual purposes only, the Court notes that this was a letter sent to Plaintiff Harold Daggett’s
counsel from the Commission’s counsel. (See D.E. No. 11 (“Def. Mov. Br.”) at 11-12 & Exh. E thereto).
4

5

This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331. See Carchman v. Nash,
473 U.S. 716, 719 (1985); Cuyler v. Adams, 449 U.S. 433, 440 (1981); Elizabeth-Newark Shipping, Inc., 164 F.3d at
180.

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unenforceable” and (2) permanently enjoins “the Commission from issuing further subpoenas
relevant to the January 29, 2016 work stoppage.” (Compl. at 13).
The Commission has moved to dismiss Plaintiffs’ Complaint under Federal Rule of
Procedure 12(b)(6).
II.

Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. Determining whether there is “a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Id. at
679.
“When reviewing a motion to dismiss, ‘[a]ll allegations in the complaint must be
accepted as true, and the plaintiff must be given the benefit of every favorable inference to be
drawn therefrom.’” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Kulwicki v.
Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). But the court is not required to accept as true
“legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
So, the inquiry is “normally broken into three parts: (1) identifying the elements of the
claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the

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well-pleaded components of the complaint and evaluating whether all of the elements identified
in part one of the inquiry are sufficiently alleged.” Malleus, 641 F.3d at 563.
Finally, “[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick,
605 F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260
(3d Cir. 2006) (“In evaluating a motion to dismiss, we may consider documents that are attached
to or submitted with the complaint, and any matters incorporated by reference or integral to the
claim, items subject to judicial notice, matters of public record, orders, and items appearing in
the record of the case.” (internal quotation marks, textual modifications and citations omitted)).
III.

Discussion
A. Count I is dismissed because the Commission’s subpoenas here are
authorized under the Compact and do not improperly infringe on the Union
Employees’ right to engage in protected concerted activity
Plaintiffs allege that, before arbitration was scheduled to begin on January 29th, the

“Commission announced to the media that any port workers who had engaged in the work
stoppage that day were in violation of the law.” (Compl. ¶ 23). “Specifically, Phoebe Sorial,
general counsel for the Defendant Commission said, ‘We do know it’s an illegal walk-off.’”
(Id.). And, “[b]y calling the longshore workers’ concerted activity ‘illegal,’ the Defendant was
deliberately attempting to paint the job action as criminal so that the Defendant could conduct an
investigation into an area outside its statutory authority.” (Id. ¶ 40). Plaintiffs appear to argue
that the “area outside [the Commission’s] statutory authority” is that involving concerted

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activities protected under N.J.S.A. § 32:23-68 and 29 U.S.C. § 157 (i.e., Section 7 of the
NLRA)). (See Compl. ¶¶ 35-45; Pl. Opp. Br. at 9-10).6
But the Commission argues that this Count should be dismissed. It argues that it is
authorized to investigate waterfront practices generally and all matters relating to the
accomplishment of the Compact’s objectives. (See D.E. No. 22 (“Def. Reply Br.”) at 7-12).
Further, the Commission argues that the subpoenas do not infringe any right to engage in
concerted activities because the work stoppage was not a protected concerted activity under the
NLRA. (See id. at 12-14).
1. The NLRA
As an initial matter, the “term ‘concerted activit[y]’ is not defined in the [NLRA] but it
clearly enough embraces the activities of employees who have joined together in order to achieve
common goals.” N.L.R.B. v. City of Disposal Sys., 465 U.S. 822, 830 (1984) (first alteration in
original). In particular, “Section 7 guarantees employees the right ‘to engage in other concerted
activities for the purposes of collective bargaining or other mutual aid or protection.’” Food Fair
Stores, Inc. v. N.L.R.B., 491 F.2d 388, 393 (3d Cir. 1974). “In defining the scope of concerted
activities to be afforded the protection of the Act, courts have generally excluded two types of

6

Article XV(1) of the Compact provides that:
This compact is not designed and shall not be construed 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 through labor organizations or other
representatives of their own choosing. Without limiting the generality of the
foregoing, nothing contained in this compact shall be construed to limit in any
way the right of employees to strike.

N.J.S.A. § 32:23-68.
Section 7 of the NLRA provides, in relevant, part that: “Employees shall have the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29
U.S.C. § 157.

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employee conduct, both involved here—unauthorized strikes and strikes in breach of a collective
bargaining agreement.” Id.7
Here, Plaintiffs allege a work stoppage that the ILA disavowed and, by their own
allegations, constituted a strike. (See Compl. ¶¶ 15-19, 46-53). And Plaintiffs also allege that an
arbitrator determined the stoppage violated a no-strike provision of the CBA—which covers the
work in question—and that the ILA “took steps to comply with the arbitrator’s award and inform
their members of the arbitrator’s decision.” (Id. ¶¶ 16, 25-26). In fact, Plaintiffs concede, as
they must, that “there is no dispute that the January 29, 2016 work stoppage was
‘“unauthorized.’” (Pl. Opp. Br. at 12).
So, even accepting that concerted activity is at issue here and accepting all the allegations
as true, it is unclear how the Commission’s subpoenas lack statutory authority under the NLRA
because such activity appears unprotected in that it violates the CBA’s no-strike provision. See
Food Fair Stores, 491 F.2d at 393-95 (“[T]he law is clear that strikes carried out in violation of a
no-strike provision in a collective bargaining agreement are not protected by the [NLRA] . . .
.”).8 The Court finds Plaintiffs’ arguments to the contrary do not apply to this case and are
without merit.

(See Pl. Opp. Br. 10-14 (discussing strikes to improve work conditions,

employees joining together for a common benefit, and policy concerns about “the chilling effect
that will result from the Commission’s blatant abuse of authority here”)). Thus, the Court finds
See also City of Disposal Sys., 465 U.S. at 837 (“[I]f an employer does not wish to tolerate certain methods
by which employees invoke their collectively bargained rights, he is free to negotiate a provision in his collectivebargaining agreement that limits the availability of such methods. No-strike provisions, for instance, are a common
mechanism by which employers and employees agree that the latter will not invoke their rights by refusing to work.
In general, if an employee violates such a provision, his activity is unprotected even though it may be concerted.”).
7

See also N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 17 (1962) (“It is of course true that [§] 7 does
not protect all concerted activities . . . . The activities engaged in here do not fall within the normal categories of
unprotected concerted activities such as those that are unlawful, violent or in breach of contract.”) (emphasis added)
(footnotes omitted); Mt. Clemens v. General Hosp. v. N.L.R.B., 328 F.3d 837, 845 (6th Cir. 2003) (“Employees can
lose Section 7 protections if they engage in concerted activity that violates a contractual no-strike provision.”)
(citing City Disposal Systems, 465 U.S. at 837).
8

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that Plaintiffs have failed to state a claim under Rule 12(b)(6) in Count I to the extent they rely
on Section 7 of the NLRA.
2. Article XV(1) of the Compact (N.J.S.A. § 32:23-68)
Plaintiffs also allege—under Count I—that the subpoenas contravene N.J.S.A. § 32:2368. (E.g., Compl. ¶¶ 37, 45). In short, Plaintiffs argue that the Commission’s “investigative
authority . . . must yield to the rights of the ILA and its members to engage in protective
concerted activities as set forth in Article XV(1) of the Compact” and, therefore, the Commission
is acting outside the scope of its authority. (Pl. Opp. Br. at 9-10, 14 (citing N.J.S.A. § 32:2368)). The Court is not so persuaded.
“In addition to the powers and duties elsewhere prescribed in this [C]ompact, the
[C]ommission shall have the power . . . [t]o make investigations, collect and compile information
concerning waterfront practices generally within the port of New York district and upon all
matters relating to the accomplishment of the objectives of this compact.” N.J.S.A. § 32:2310(11) (emphasis added). Both parties appear to cite N.J.S.A. § 32:23-2 as relating to the
objectives of the Compact. (See Pl. Opp. Br. at 8-9; Def. Reply Br. at 9). That provisions states
as follows:
The States of New Jersey and New York hereby find and declare
that the conditions under which waterfront labor is employed
within the Port of New York district are depressing and degrading
to such labor, resulting from the lack of any systematic 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 character and integrity and neither
responsive or responsible to the employers nor to the uncoerced
will of the majority of the 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
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securing employment and a loss of respect for the law; that not
only does there result a destruction of the dignity of an important
segment of American labor, but a direct encouragement of crime
which imposes a levy of greatly increased costs on food, fuel and
other necessaries handled in and through the Port of New York
district.
N.J.S.A. § 32:23-2.
Importantly, the Compact was enacted “in order to eliminate evil conditions on the
waterfront in the Port of New York Harbor”—and the “principal evil sought to be eliminated was
the domination by criminal elements of the International Longshoremen’s Association, which
represents waterfront labor.” In re Application of Waterfront Comm’n, 32 N.J. 323, 331 (N.J.
1960). “In order to further the elimination of waterfront evils, the Commission is empowered to
investigate waterfront practices and other matters bearing on the objectives of the Compact, and
to make recommendations to the two states for improvement of waterfront conditions and for
effectuation of the purposes of the Compact.”

Id. at 332. Indeed, the “Commission’s

investigative function within its statutory jurisdiction is very like that of a grand jury. It must not
act arbitrarily, or in excess of its jurisdiction, but the scope of its investigations is not to be
limited by conjectural forecasts of their probable result.” Id. at 335 (emphasis added).
In effect Plaintiffs appear to aver that the Commission’s investigation cannot implicate
anything in N.J.S.A. § 32:23-2 and, therefore, there is no statutory authority for the issued
subpoenas. In particular, Plaintiffs argue that they alleged facts “plausibly establishing . . . that
the Commission had no reason to believe that the work stoppage was designed to inhibit the
Act.” (Pl. Opp. Br. at 19-20). But Plaintiffs tellingly concede that the purpose of the work
stoppage “is still unclear.” (Id. at 19).
Drawing on judicial common sense that this Court may employ in a Rule 12(b)(6)
inquiry, the problem with Plaintiffs’ contention is as follows. Plaintiff’s position effectively
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requires the Commission to: (1) disclose right now the nature of its investigation (e.g., whether
the work stoppage was to protest the Commission’s insistence on certain hiring practices); (2)
disclose this while its investigation is ongoing; and (3) make such disclosures without allegations
from which the Court can conclude that the Commission’s investigation is so plainly futile so as
to make it impossible to uncover anything legitimate. See In re Application of Waterfront
Comm’n, 32 N.J. at 335 (“Only where the agency acts arbitrarily, or, in the words of Mr. Justice
Cardozo, (256 N.Y. 220, 176 N.E. 539.) ‘where the futility of the process to uncover anything
legitimate is inevitable or obvious’ may the process be vacated.”).9 After all, “[i]f the issue to be
tried is whether the Commission actually has the information it claims to have, then the whole
preliminary investigative process would be subject to scrutiny in advance of any investigation.”
Id. at 334.
The Court also notes that Plaintiffs allege: (1) initial news reports “quoted” an
unidentified “ILA representative stating that he did not know what the work stoppage was about”
(Compl. ¶ 19); (2) certain news reports “characterized the stoppage as ‘unauthorized by the
ILA’” (id.); (3) the ILA “took steps to comply with the arbitrator’s award and inform their
members of the arbitrator’s decision” (id. ¶ 26); and (4) the ILA “also released statements to the
media urging its members to return to work (id.). Looking at the totality of the allegations and
employing judicial common sense, the Court cannot help but notice that none of the named
Plaintiffs in this action are alleged to have made such statements or representations such that the
Commission’s investigation is arguably, on its face, futile.

This may very well beg the question: under what circumstance is the Commission’s action arbitrary or the
futility obvious? The Court need not answer that question here because the operative Complaint in this case does
not permit the Court to draw any such conclusion at this time. The Court need not opine on hypothetical scenarios
where—on their face—the Commission is acting arbitrarily or where there is manifest futility of the process to
uncover anything legitimate.
9

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Finally, Plaintiffs fail to provide this Court with any analogous case law—i.e., case law
limiting the Commission’s authority to issue subpoenas in analogous circumstances. Without
some authority to that effect—or a persuasive explanation why the aforementioned analysis is
misdirected—the Court declines Plaintiffs’ invitation at this time to so limit the Commission’s
subpoena authority under N.J.S.A. § 32:23-10 or, indirectly, the objective of the Compact. Cf. In
re Application of the Waterfront Comm’n of N.Y. Harbor, 35 N.J. 62, 75 (1961) (“We hold that
the Commission may investigate a waterfront work stoppage when the Commissioners have
reason to believe that the stoppage is designed to inhibit effective operation of the act. The
Commission is entitled to know all of the facts surrounding such a stoppage so that it may
intelligently determine whether persons registered or licensed by the Commission have violated
any provision of the act and so that it may fulfill its statutory duty of recommending to the state
governments measures for the improvement of the conditions on the New York-New Jersey
waterfront.”); In re Application of Waterfront Comm’n, 32 N.J. at 336 (“No doubt the interests of
men to be free from officious intermeddling call for protection. But we feel that these interests
may be adequately protected without a full judicial trial at the threshold of an investigation into
the question whether it will uncover matter which should in the public interest be uncovered.”).
As such, Plaintiffs’ claim (Count I)—that the Commission’s subpoenas lack statutory
authority based on Section 7 of the NLRA and/or N.J.S.A. § 32:23-68—is hereby dismissed
without prejudice under Federal Rule of Civil Procedure 12(b)(6).
B. Count II is dismissed because the Court finds that the allegations are
insufficient to support a claim for infringement on the Employees’ right to
strike
In Count II, Plaintiffs again cite N.J.S.A. § 32:23-68, alleging that “the Compact
specifically says that it shall not be construed to limit the employees’ right to strike: ‘nothing

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contained in this compact shall be construed to limit in any way the right of employees to strike.’
N.J.S.A. 32-23-68.” (Compl. ¶ 48). In particular, Plaintiffs allege that the “Commission’s use of
subpoenas demanding depositions of union officers about striking workers has the intent and the
effect of chilling future strikes.” (Id. ¶ 51).
The Commission argues, however, that “[i]t is well-settled that the statutory right to
strike may be waived in a collective bargaining agreement.” (Def. Reply Br. at 15 (citations
omitted)). It contends that, “as found by the arbitrator, the work stoppage was in violation of the
no-strike provision in the NYSA-ILA CBA, and therefore, the ILA had no right to engage in the
stoppage.” (Id.). The Commission argues that, therefore, its investigation is not improperly
interfering with any protected rights. (See id.).
In opposition, Plaintiffs contend that, like the Commission’s arguments concerning Count
I, its arguments in favor of dismissal are “premised upon an unsupportable legal proposition,
namely that the CBA’s no-strike clause completely extinguishes the right to strike afforded under
Article XV(1) of the Act.” (Pl. Opp. Br. at 14). They argue that, “accepting the allegations of
the Complaint as true, it is clear Plaintiffs have stated a valid claim that the Commission is in
violation of Article XV of the Act.” (Id. at 15-17 (citing allegations)).
Article XV(1) provides that
This compact is not designed and shall not be construed 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 through labor organizations or other
representatives of their own choosing. Without limiting the
generality of the foregoing, nothing contained in this compact shall
be construed to limit in any way the right of employees to strike.
N.J.S.A. § 32:23-68. But “the language of Article XV is not absolute,” and the Third Circuit has
“held that collective bargaining rights cannot supersede ‘the Commission’s supervisory role
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regarding practices that might lead to corruption.’” N.Y. Shipping Ass’n Inc., 835 F.3d at 357
(quoting Waterfront Comm’n of N.Y. Harbor v. Sea Land Serv., Inc., 764 F.2d 961, 966-67 (3d
Cir. 1985)).
Plaintiffs’ cause of action in Count II is that the subpoenas “Lack Statutory Authority
Because They Infringe on the Right to Strike” under N.J.S.A. § 32:23-68. (Compl. ¶¶ 46-53).
Distilling the parties’ arguments, it appears that the crux of the dispute concerning Count II is the
allegation in Paragraph 51 of the Complaint: “The Commission’s use of subpoenas demanding
depositions of union officers about striking workers has the intent and the effect of chilling
future strikes.” (See Def. Mov. Br. at 22, 24; Pl. Opp. Br. at 17, 21; Def. Reply Br. at 14, 15).
Indeed, Plaintiffs argue that “the Commission . . . misses the core of Plaintiffs’ allegations that
the Commission’s investigation had the intent and effect of chilling future strikes.” (Pl. Opp. Br.
at 21 (emphasis in original) (citing Compl. ¶ 51)).
As already noted, the Commission has a statutory basis to investigate “waterfront
practices generally within the port of New York district and upon all matters relating to the
accomplishment of the objectives” of the Compact and, specifically, can issue subpoenas.
N.J.S.A. §§ 32:23-10(8), 10(11). In Plaintiffs’ Complaint there are simply no factual allegations
concerning any intent or effect of chilling future strikes.

Although Plaintiffs’ opposition

discusses allegations that they feel support their claim, their position appears to boil down to one
thing: the dispute between the collective bargaining parties—i.e., the ILA and the NYSA—had
been resolved. (See Pl. Opp. Br. at 15-17). Accordingly, in their view, any further investigation
by the Commission has a chilling effect on the ability to strike. (See id.). In fact, in connection
with Count II, Plaintiffs’ opposition is tellingly replete with accusatory conclusions that the
Commission has “decided to stir the pot by investigating who was responsible for ordering the

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walkout,” the Commission “made no attempt to be neutral,” and that the Commission has
“harass[ed] rank-and-file employees.” (See Pl. Opp. Br. at 16).10
But “[p]ermitting a claim to go forward on nothing more than speculation and hope that
some supporting fact might be revealed in discovery would render Rules 8(a)(2) and 12(b)(6)
completely meaningless.” Hopkins v. DiCristi, No. 13-5490, 2015 WL 7760176, at *8 (D.N.J.
Dec. 1, 2015). Setting aside the accusatory language in Plaintiffs’ opposition, the Court finds
that the allegations in the actual Complaint amount—at best—to a “sheer possibility that a
defendant has acted unlawfully” and therefore fail to meet the plausibility standard. See Iqbal,
556 U.S. at 678.

It is simply unclear to this Court how the Commission’s investigation

contravenes N.J.S.A. § 32:23-68 in view of the allegations in this case. This is particularly so
because the Third Circuit has unequivocally stated that “the language of Article XV is not
absolute” and “cannot supersede the Commission’s supervisory role regarding practices that
might lead to corruption.” N.Y. Shipping Ass’n Inc., 835 F.3d at 357 (internal quotation marks
and citation omitted).
Accordingly, Count II is hereby dismissed without prejudice.
C. Count III is dismissed because Plaintiffs do not identify any subpoena served
by the Commission on third parties—or allege why such information is
unavailable
In Count III, Plaintiffs allege that, “[u]pon information and belief,” the Commission “has
been issuing subpoenas to third parties in order to obtain telephone records, mobile phone
records, and other personal information about ILA members and officers.” (Compl. ¶ 55).
Plaintiffs aver that the New Jersey Supreme Court “has held that Article I, Paragraph 7, of the
10

The history and relationship involving the ILA and the Commission is apparently a sordid one. If nothing
else, this is apparent from briefing that is laden with conjecture, hyperbole, and accusatory statements. But some of
the finest lawyers that have advocated their positions before this Court have done so without the use of such
rhetoric. This Court places a premium on civility, professionalism, and perhaps most of all, writing that is concise
and clear. Notwithstanding the parties’ differences, the Court expects the parties’ lawyers to bear this in mind for
any future motion practice or, if necessary, oral argument.

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New Jersey Constitution protects an individual’s privacy interest in bank records, telephone
records, mobile phone records, and Internet records” and that a warrant is required before such
personal information can “be searched or seized.” (Id. ¶¶ 57-58). To be sure, the title of Count
III shows that this claim concerns “Plaintiffs’ Private Records.” (Id. at 12).
“Article I, Paragraph 7 of the New Jersey Constitution guarantee[s] ‘[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures’ and set[s] forth the requirements for warrants.” State v. Robinson, 2017 WL
1548798, at *8 (N.J. May 1, 2017) (certain alterations in original).
In moving to dismiss, the Commission asserts that “Plaintiffs provide no explanation
whatsoever as to (1) the identity of the ‘third parties’ upon whom the subpoenas were allegedly
served; (2) when the subpoenas were served, (3) a definite description of the records and ‘other
personal information’ that have been requested by the Commission pursuant to these unidentified
subpoenas; and (4) the location of the ‘third parties.’” (Def. Mov. Br. at 26-27). It contends that
the “only subpoenas that are specifically identified in the entire Complaint are those that were
served on the six named ILA Plaintiffs, which are not at issue in Count III.” (Id. at 27).
In opposition, Plaintiffs argue that they “had no choice at this early stage but to base their
allegations ‘upon information and belief’—a perfectly prudent and understandable approach
under the liberal standard on a motion to dismiss and the present circumstances.” (Pl. Opp. Br.
at 22 (citation omitted)). They posit that “Rule 8 does not require the Plaintiffs to specify at this
early stage exactly which bank or which mobile phone provider the records were obtained from.”
(Id. at 23). And Plaintiffs aver that the Commission’s very argument in support of dismissal
“further supports Plaintiffs’ claim that the Commission is secretly issuing subpoenas to third
parties illegally obtaining Plaintiffs’ private records.” (Id. at 24 (citing Compl. ¶¶ 54-60)).

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As noted, the “plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
Notably, whether there is “a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Here, Plaintiffs argue that “the Commission has no one but its own secrecy to blame for
the gaps in Plaintiffs’ knowledge.” (Pl. Opp. Br. at 23). Plaintiffs also state that the “identity of
the third parties is unknown due to the Commission’s non-disclosure and confidentiality
requirements imposed on deponents by the stern language of the Commission’s subpoenas.” (Id.
(citing Compl. ¶¶ 22, 58-60)). But nothing in Paragraphs 22, 58, 59 or 60 allege anything about
“non-disclosure” or “confidentiality requirements.” And the Court cannot permit Plaintiffs to
amend their Complaint by way of an opposition brief to a motion to dismiss.

See

Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988).
Further, Plaintiffs do not offer anything—whether in their Complaint or in their
opposition brief—concerning when the subpoenas were served or the location of the third
parties. In their opposition, Plaintiffs address this only by arguing that “the Commission is
secretly issuing subpoenas to third parties illegally obtaining Plaintiffs’ private records.” (Pl.
Opp. Br. at 24 (citing Compl. ¶¶ 54-60)). Once again, however, nothing in Paragraphs 54
through 60 of Plaintiffs’ Complaint references the alleged secret issuance of subpoenas.
In sum, Plaintiffs cannot amend their Complaint by way of an opposition brief, and the
Court finds Plaintiffs have failed to plead enough facts to suggest more than mere speculation.
See Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief
above the speculative level . . . .”).11

In resolving the Commission’s motion to dismiss, the Court declines to consider various arguments made in
favor of and in opposition to the motion. (See, e.g., Pl. Opp. Br. at 7 (“When considering Defendant’s motion to
11

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IV.

Conclusion
For the reasons above, the Court dismisses Plaintiffs’ Complaint without prejudice. An

appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.

dismiss, this Court should ignore extrinsic documents cited by the Commission.”); Def. Reply Br. at 3-7 (requesting
the Court to consider certain documents)). As such, the Court need not resolve such disputes because they are
unnecessary to the Court’s determination at this time.

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