Statement of General Counsel Phoebe Sorial Before the New Jersey State Senate Labor Committee in Opposition to SJR36
April 28, 2014
Commissioner Gihooly referenced the industry’s lack of candor with this Honorable Legislature, members of the press and the public. I would like to take this opportunity to dispel some of the serious misrepresentations that have been made with regard to hiring delays in the Port.
Often, when two factions assert two diametrically opposite positions, the truth lies somewhere in between. That is not the case here. Proponents of this resolution contend that without legislative action by the State of New York, the Port will be denied the flexibility necessary to hire and train workers in a timely manner. It is premised on the notion that the Waterfront Commission has been holding up applications, and is the source of hiring delays in the Port. Nothing could be further from the truth.
Last August, we were asked by the Port Authority’s Executive Director, Pat Foye, to respond to serious reports by the New York Shipping Association that a labor shortage was the source of delays in the Port and that the Waterfront Commission was the reason for those shortages. A meeting was immediately scheduled, and was attended by various representatives from the Port Authority, Waterfront Commission and the NYSA. We advised all who were present that the industry had not requested that the Commission open the deep sea register, and that not one application was pending before the Commission at that time. NYSA President John Nardi was forced to admit that the Commission was not, in fact, the source of any delays. Instead, delays in the Port at that time were due to a computer glitch at Maher Terminals, as well as chronic absenteeism that was made possible by industry’s absentee policy.
During that meeting, we discussed the pending retirements that were scheduled for this month, and the industry’s anticipated need for labor. The Commission encouraged the NYSA to send us as many candidates as possible so that we could pre-qualify them. As Director Arsenault testified, the prequalification program was created by the Commission almost three years ago in order to ensure that the process of bringing new individuals into the workforce could be accomplished as quickly and efficiently as possible.
One would expect that, faced with this somewhat embarrassing retraction, the NYSA would be very cautious with its accusations going forward. Yet they were not deterred.
In November, the NYSA again told members of the Port Authority, the press and the public that the Commission was the source of hiring delays in the Port. During meetings between the Commission and members of the industry which were held at the Port Authority, the NYSA was again forced to admit that the Commission was not stalling the hiring process, and retracted its comments. I have attached a Port Authority Press Release dated November 7, 2013, which provides that, “All parties agree that the Waterfront Commission was and is not delaying hiring, and applicants are actively being referred and processed.” That press release was specifically approved by the NYSA’s Director of External Affairs.
Just months later, the NYSA and ILA represented to a federal judge that the Commission was holding up the approval of numerous mechanics that were desperately needed to service machinery that was just lying dormant in the Port and again, that this was causing the industry costly delays. They sought judicial intervention, which was swiftly and summarily denied once the judge was made aware of the true facts. The judge who denied their request for relief noted, on the record that:
. . . part of my understanding as well at the time the application [for a preliminary injunction] was made, was that there were numerous applications pending that no action had been taken on. And these applications had been sitting. And one of the questions I asked was: Well, has there even been an attempt to at least try to get some portion of these applicants addressed so you can move forward on some of these applications as opposed to all of them? And my understanding, and I'm not suggesting that it was misrepresented to me, but my understanding from that conversation was that: We can't get anything from our adversary. So hearing today's presentations, obviously I have a lot different perspective. And in addition to hearing today's presentation, receiving and having the opportunity to review the opposition that was submitted, also gave me some further enlightenment as to exactly what the issues are ...
I'm told today that not even an application has been submitted that hasn't been acted upon.
Again, one would expect that, faced with admonition from a federal judge, the NYSA and ILA would have ceased their baseless accusations. Yet again, they were not deterred.
This time, the misrepresentations were in connection with the opening of the deep sea register. Almost five months ago, the Commission issued Determination 35, which acknowledged the industry’s need for 532 longshoremen and 150 clerical longshoremen, called “checkers,” (for a total of 682 employees) in light of current shortages and expected future retirements. The Determination provided for the immediate opening of the deep sea register for the inclusion of 150 longshoreman and 75 checkers. This was done to accommodate the industry’s request that the new employees be added in a “metered sequence” of 150 longshoremen per month and 25 checkers per month, to allow for proper training.
The Commission’s prequalification initiative has streamlined the process for longshoremen to come into the industry. Once an individual has been prequalified, all that the industry need do is send the Commission a “sponsorship letter” (also referred to as a “certification”), indicating that they are sponsoring that particular person for employment, and certifying that, among other things, the selection of the person so sponsored was done in a fair and nondiscriminatory manner, in accordance with the equal opportunity laws of the United States and the states of New Jersey and New York. Once that is accomplished, the individual is then ready to pick up his or waterfront registration card. As we have advised the NYSA, once pre-qualified, the Commission can register that person within the day of sponsorship.
In this instance, the register was opened on December 3, 2013. On January 10, 2014, the NYSA indicated that it would be sending sponsorship letters for individuals who had been pre-qualified and ready to be immediately put to work. Five days later, despite the NYSA’s contention that there was a dire need for labor in the Port, the Commission still had not received letters. On January 15th we advised the NYSA that the Commission was committed to filling labor shortages,
if any, in the Port as quickly as possible. We advised that we were immediately ready to add individuals to the deep sea register upon receipt of the certifications and applications. We anticipated that the first 150 longshoremen would be processed that week, and advised the NYSA that upon doing so, the Commission would then open the register for the next set of individuals. We asked them to advise when they would be sending the pre-qualified applicants to be registered.
In response, the NYSA indicated that applications would be forthcoming that week. Specifically, that they would be sending 50 sponsorship letters on January 17th, 50 letters the following week, and 50 the week after that. On January 17th, Mr. Nardi forwarded sponsorship letters for 52 individuals and again confirmed that he would be providing a similar amount per week over a three-week period.
Over a month later, the Commission still had not received the necessary sponsorship letters from the NYSA. We had, by that point, asked them several times when we could expect to receive them, but had not gotten any definitive response. Nor was any reason given to us as to why they were not sponsoring individuals who had been prequalified and who were ready to immediately be put to work in the Port. In one of our communications to the NYSA we advised that it would only take about twenty minutes to complete the process, and again asked them to send us sponsorship letters so that we could do so.
So you can understand why we were totally stunned when, on February 24, 2014, a press release was issued by Senator Pennacchio and Assemblyman Rumana, claiming that “red tape was holding up job creation at the Port of New Jersey,” and contending that the Commission was delaying the Port from filling “approximately 600 vitally needed jobs.” The release indicated that they would be introducing the Joint Resolution that is before you today, encouraging legislation that would eliminate the Commission’s veto power over the number of new hires in the Port. We immediately arranged to meet with them on March 4th.
On March 3rd, the day before that scheduled meeting, we reviewed our records and determined that although the NYSA had indicated that the 150 slots for longshoremen would be filled by early February, the industry was still 58 slots short of filling the first 150 openings. By email, we advised the NYSA that they still had 39 open slots for veterans, 9 slots for NYSA referrals and 10 slots for ILA referrals, and inquired as to when they expected to fill the remainder of the 150 openings. No response was received from the NYSA to that email.
The following day, I, along with Commissioner Gilhooly and Director Arsenault, met with Senator Pennacchio and Assemblyman Rumana and their respective staff members. At that meeting, we learned that they had been advised by the NYSA that hundreds of applications for longshoremen were pending before the Commission and that the Commission’s failure to approve their hiring was the cause of serious delays in the Port. They advised us that their discussions with the NYSA had precipitated the issuance of their February 24, 2014 press release. We indicated that, contrary to the NYSA’s misrepresentations, not one single application was pending before the Commission at that time. Even though the deep sea register had been open for the inclusion of 150 longshoremen since December 3, 2013, the NYSA had – as of March 4th – only sent 92 people to the Commission to be issued, leaving a balance of 58 individuals who could be immediately added to the register pursuant to Determination 35. We explained that in order for the Commission to issue registrations, the industry first had to send sponsorship letters with certifications, and that each individual actually had to come in to pick up their waterfront registrations.
We advised them the Commission had completed hundreds of background checks for individuals referred by the industry, and that those people were prequalified and were ready for immediate employment. With the background checks complete, there should be nothing precluding the industry from sponsoring individuals and sending them to the Commission to be registered. This is especially if there is a dire need for labor in the Port. But, quite simply, the industry had inexplicably failed to do so.
Following that meeting, on March 6, 2014, Senator Pennacchio and Assemblyman Rumana wrote to NYSA President John Nardi and urged him to send sponsorship letters for the remaining 58 individuals to the Commission, so that they could immediately be added to the deep sea register and be put to work in the Port. Specifically, that letter states,
During our meeting we were given assurances by the Waterfront Commission that they would expeditiously process all candidates from the 682 agreed upon hiring numbers. Additionally, the Waterfront Commission agreed that it will continue to its prequalification program, so that there is an expanded pool of available labor above the 682 individuals initially requested, to streamline the process in the future.
Having been given these assurances by the Waterfront Commission, we would hope that you being the process of supplying the remaining 58 candidates who have already been prequalified and who can begin to work in the port immediately, and that you supply the Waterfront Commission with additional individuals to allow it to complete the prequalification of the remaining positions. At a time when people are desperately seeking employment and when the port is being challenged by regional and national forces for their business, it is imperative that the port is properly staffed and made to be competitive so it can truly be a New Jersey economic engine. As an immediate gesture, please forward 58 sponsorship letters to the Waterfront Commission for immediate approval of these prequalified candidates.
That same day, the Commission finally received 19 sponsorship letters from the industry, and an additional 12 sponsorship letters the following day. Registrations were issued within days. Since then, we have provided Senator Pennachio and Assemblyman Rumana with a weekly status update to assure them that the Commission is not delaying the process and, in fact, is doing everything possible to move it along.
Yet the misrepresentations have continued. On March 25, 2014, as part of the intensive lobbying efforts of the NYSA and ILA, a statement was released accusing the Commission of delaying the Port from filling “nearly 700 jobs.” Regrettably, the coalition that released the statement made no attempt to contact the Commission to discover the true facts prior to issuing their statement. Instead, they apparently relied solely on the reports of the NYS and ILA. In the Commission’s response that day, we indicated that the Commission has not been the source of any labor shortages or slowdowns in the Port. To the contrary, we have openly criticized the glacial pace at which the NYSA is moving with regard to getting longshoremen sponsored and working in the Port. I am submitting that press release as a part of my testimony.
As of today, there about 150 prequalified individuals referred by the industry who may immediately be put to work in the Port but who, for some reason, have not been sponsored by the NYSA-ILA Contract Board. 41 of them are military veterans. Despite the NYSA’s contention that there is a dire need for labor in the Port and that the Commission is the cause of labor shortages, we have yet to receive sponsorship letters for those individuals.
My testimony today is but one of numerous instances in which the Commission has had to correct allegations made by the NYSA concerning hiring issues in the Port. Over the course of the past nine months, each and every time, when confronted with the correct facts and sworn affidavits, they have been forced to retract their statements.