                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2002

IUOE Local 542 v. DE River Joint Toll
Precedential or Non-Precedential: Precedential

Docket No. 02-1210




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PRECEDENTIAL

       Filed November 19, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 02-1210

INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 542,
       Appellant

v.

DELAWARE RIVER JOINT TOLL BRIDGE
COMMISSION

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 01-cv-04089)
District Judge: Honorable Garrett E. Brown, Jr.

Argued August 1, 2002

Before: ROTH, RENDELL and AMBRO, Circuit Judge s

(Filed: November 19, 2002)

       Regina C. Hertzig, Esq. [ARGUED]
       William T. Josem, Esq.
       Cassie R. Ehrenberg, Esq.
       CLEARY & JOSEM
       1420 Walnut Street, Suite 300
       Philadelphia, PA 19102
        Counsel for Appellant




       Warren B. Kasdan, Esq. [ARGUED]
       SCHWARTZ, TOBIA, STANZIALE,
       ROSENSWEIG & SEDITA
       22 Crestmont Road
       Montclair, NJ 07042
        Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

At issue is whether state law applies to a bi-state agency.
The International Union of Operating Engineers, Local 542,
petitioned for a court order compelling the Delaware River
Joint Toll Bridge Commission to comply with New Jersey
collective bargaining laws. In granting summary judgment
to the Commission, the District Court held that neither New
Jersey nor Pennsylvania collective bargaining laws apply
because the state legislatures have not expressed a clear
intent to impose their labor laws upon the Commission. We
will affirm.

I. Background

Under the Compact Clause, Article I, Section 10, Clause
3 of the United States Constitution, states may enter into
agreements regarding matters of common concern provided
they obtain the consent of Congress.1 In 1934, the
legislatures of New Jersey and Pennsylvania created the
Delaware River Joint Toll Bridge Commission (the
"Commission") to operate certain bridges spanning the
Delaware River. N.J. Stat. Ann. S 32:8-1 (West 2002); Pa.
Stat. Ann. tit. 36 S 3401 (West 2002). The Commission was
consented to by act of Congress the following year. 49 Stat.
1051, 1058 (1935). The Compact has since been amended
by the states, which amendments have been approved by
Congress. The most current version is dated March 1986.
_________________________________________________________________

1. The Compact Clause states, "No State shall, without the Consent of
Congress enter into any Agreement or Compact with another State." U.S.
Const. art. I, S 10, cl.3.

                                 2


The Commission’s powers and duties are framed entirely by
the Compact. The Compact has been carefully crafted to
provide for joint governance by commissioners from both
states, requiring a majority of the commissioners from
Pennsylvania and a majority of the commissioners from
New Jersey to agree to any action. N.J. Stat. Ann.S 32:8-1,
Art. I; Pa. Stat. Ann. tit. 36 S 3401, Art. I. The
commissioners are charged with administering, operating,
and maintaining numerous bridges and port facilities,
acquiring and constructing additional facilities, fixing tolls
and issuing bonds to raise funds, and procuring the
consent of Congress whenever necessary. Id. Most pertinent
to our purposes, under Article II of the Compact, the
Commission’s powers include the authority:

       "(f) To appoint such other officers, agents and
       employees as it may require for the performance of
       its duties.

       (g) To determine the qualifications and duties of its
       appointees, and to fix their compensation.

       (h)   To enter into contracts." Id.

The Compact is entirely silent regarding the rights of
Commission employees to collectively bargain and the duty
of the Commission to collectively bargain with unions. The
Compact also contains no provision regarding procedures
for its amendment, or, especially relevant here, enabling the
states to modify it by passing legislation that is"concurred
in" by the other state.

In June 2001, the International Union of Operating
Engineers, Local 542, ("Local 542") advised the Commission
that a majority of the full-time and regular part-time toll
collectors, maintenance employees, bridge officers, and
tellers employed by the Commission had selected Local 542
as their exclusive representative for collective bargaining
purposes. The Commission refused to recognize Local 542
as the employees’ representative, explaining that the
Compact does not confer upon Commission employees the
right to organize. Local 542 then petitioned a New Jersey
state court to order a union election pursuant to the New
Jersey Employer-Employee Relations Act, N.J. Stat. Ann.
S 34:13A-1 et seq. (West 2002), and the Pennsylvania Public

                                3


Employee Relations Act, Pa. Stat. Ann. tit. 43 S 1101.101 et
seq. (West 2002).2 (JA6a). Both acts provide for an election
among public employees to determine whether they wish to
be represented by a labor union and require public
employers to bargain collectively with the selected union.3
Id. Neither act specifically states that it applies to the
Commission or is intended to amend the Compact.

The Commission removed the case to the U.S. District
Court for the District of New Jersey. Both parties moved for
summary judgment. Local 542 argued that New Jersey and
Pennsylvania’s "complementary and parallel" employee
relations acts effectively amended the Compact and
therefore require the Commission to engage in collective
bargaining. The Commission countered that a bi-state
compact cannot be modified unless both state legislatures
expressly state an intention to alter the compact. In an oral
opinion, the District Court granted summary judgment in
favor of the Commission. Local 542 appeals.

II. Jurisdiction and Standard of Review

The construction of a bi-state compact that has been
consented to by Congress pursuant to the Compact Clause
presents a federal question. Cuyler v. Adams, 449 U.S. 433,
438 (1981). When Congress sanctions a compact between
two states, it turns the agreement into a "law of the Union,"
Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13
How.) 518, 566 (1852), the interpretation of which"involves
a federal ‘title, right, privilege, or immunity." Del. River Joint
Toll Bridge Comm’n v. Colburn, 310 U.S. 419, 427 (1940)
(quoting 28 U.S.C. S 344 (now 28 U.S.C. S 1257(a) (2002)).
Because the compact here presents a federal question, the
_________________________________________________________________

2. Ordinarily, when a New Jersey union wants to organize a public
employer, it is required to file a petition with the New Jersey Public
Employment Relations Commission ("PERC"). N.J. Stat. Ann. S 34:13A-
5.4e (West 2002). However, the New Jersey Supreme Court has ruled
that PERC does not have jurisdiction over a bi-state entity. Int’l Union of
Operating Eng’rs, Local 68 v. Del. River & Bay Auth. , 688 A.2d 569, 574
(N.J. 1997).

3. Neither party argues that the Commission should be deemed a "public
employer" under either states’ laws, nor do we think that it is.
                                4


District Court had jurisdiction under 28 U.S.C.S 1331, and
we exercise jurisdiction pursuant to 28 U.S.C. S 1291.

Summary judgment is appropriate where "there is no
genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). The District Court’s grant of summary judgment is
subject to plenary review. Bailey v. United Airlines, 279
F.3d 194, 198 (3d Cir. 2002); Gritzer v. CBS, Inc., 275 F.3d
291, 296 (3d Cir. 2002).

III. Discussion

In creating the Delaware River Joint Toll Bridge
Commission, New Jersey and Pennsylvania agreed to"the
power sharing, coordination, and unified action that typify
Compact Clause creations." Hess v. Port Auth. Trans-
Hudson Corp., 513 U.S. 30, 41 (1994). Bi-state entities like
the Commission are intended to address "interests and
problems that do not coincide nicely . . . with State lines."
Id. at 40 (quoting V. Thursby, Interstate Cooperation: A
Study of the Interstate Compact 5 (1983)). They are to be
regarded not as extensions of each compacting state’s
authority, but rather as "independently functioning parts of
a regional polity and of a national union." Id. (quoting Grad,
Federal-State Compact: A New Experiment in Cooperative
Federalism, 63 Colum. L. Rev. 825, 854-55 (1963)). By
compacting together to form the Commission, New Jersey
and Pennsylvania have each surrendered a portion of their
sovereignty over certain Delaware River bridge operations in
order to better serve the regional interest. Such a surrender
of state sovereignty should be treated with great care, and
the Supreme Court has stated that courts should not find
a surrender unless it has been "expressed in terms too
plain to be mistaken." Jefferson Branch Bank v. Skelly, 66
U.S. 436, 446 (1861).

Our role in interpreting the Compact is, therefore, to
effectuate the clear intent of both sovereign states, not to
rewrite their agreement or order relief inconsistent with its
express terms. Texas v. New Mexico, 462 U.S. 554, 564-65
(1983) (declining to alter the voting structure of the Pecos
River Commission to break an impasse); see also New

                                5


Jersey v. New York, 523 U.S. 767, 811 (1998) (declining to
redraw the boundary between New Jersey and New York for
reasons of practicality and convenience). Although we
understand the desire to bring the Commission under the
auspices of New Jersey and Pennsylvania’s employee
relations acts, we conclude that to do so would be an act of
legislation, rather than interpretation or enforcement. We
can find no legislative intent to subject the Compact to the
collective bargaining schemes of New Jersey or
Pennsylvania. We will therefore affirm the District Court’s
grant of summary judgment.

A. The Legal Landscape

Local 542 urges that states may amend a bi-state
compact by passing legislation that is substantially similar,
without an express statement, either in the legislation or
otherwise, that they intend to apply that law to the bi-state
entity. This issue has been treated differently by different
courts. In nearly every one of these cases, courts have been
presented with a compact that addresses the issue of
modification by including language enabling one state to
modify the compact through legislation "concurred in" by
the other. See, e.g., Pa. Stat. Ann. tit. 36S 3503, Art. IV(e)
(West 2002) (Delaware River Port Authority); N.Y. Unconsol.
Law S 6408, Art. VII (West 2002) (Port Authority of New
York and New Jersey). Here, the Compact contains no
"concurred in" language. Nonetheless, an overview of the
relevant case law in this area assists in understanding the
issue before us.

The most notable difference of opinion regarding the
interpretation of "concurred in" language is between the
courts of New York and those of New Jersey. New York
courts have interpreted the "concurred in" language in a
compact to permit application of states’ laws to the compact
if the states’ legislation contains an express statement that
they intend to amend the compact. New Jersey courts have
held that this language will be effective to apply the states’
laws that are "complementary or parallel" even where there
is no stated intent to amend the compact. Federal courts,
including those in our circuit, have at various times
adopted both approaches.

                                6


       i. New York View

The New York standard was most clearly articulated by
the Court of Appeals of New York in Malverty v. Waterfront
Commission of New York Harbor, 524 N.E.2d 421, 422 (N.Y.
1988). In Malverty, the petitioner sought to apply New York
Corrections Law to the Waterfront Commission of New York
Harbor, a bi-state agency established by New York and New
Jersey and approved by Congress. Id. at 421. The compact
creating the Waterfront Commission included authorization
"to amend and supplement the Interstate Compact, to
implement the purposes thereof, by legislative action of
either State concurred in by legislative action of the other
State." Id. at 422. The Malverty court found "the absence
from the text and legislative history of [the Corrections Law]
of any reference to the Waterfront Commission, coupled
with the absence of an express statement that the
Legislature was amending or supplementing the provisions
of the ‘Compact’ and that [the Corrections Law] would take
effect upon the enactment by New Jersey of legislation of
identical effect," to indicate that the New York legislature
had never intended the Corrections Law to apply to the
Waterfront Commission. Id. The court noted,"That the two
States have evinced the same, or similar, public policy
regarding employment opportunities for former inmates by
enacting similar ‘antidiscrimination’ laws is not sufficient
under the express terms of the ‘Compact’ to render it
properly amended or supplemented such that the
Commission would be subject to the provisions of[New
York’s Corrections Law]." Id. (citations omitted). It thus
viewed the "concurred in" language to require an express
statement to that effect.

       ii. New Jersey View

New Jersey courts have taken a different tack, finding the
passage of similar legislation by compacting states to
satisfy the "concurred in" test and be sufficient to imply an
intent on the part of both states to apply the legislation to
a bi-state entity. Bunk v. Port Auth. of New York & New
Jersey, 676 A.2d 118, 122 (N.J. 1996). In Bunk, the court
applied New Jersey’s workers’ compensation laws to the
Port Authority of New York and New Jersey, a bi-state

                                7


entity whose compact contains "concurred in" language,
without examining whether either state had expressly
intended its workers’ compensation laws to apply. The
court reasoned that the "corollary of the proposition that
neither state may unilaterally impose its legislative will on
the bi-state agency is that the agency may be subject to
complementary or parallel legislation." Id. (citing Eastern
Paralyzed Veterans Ass’n v. Camden, 545 A.2d 127 (1988)).
The court then examined New York and New Jersey’s
workers’ compensation laws and found them "somewhat
similar." Id. According to the New Jersey view, then, a state
may meet the requirements of "concurring in" the other’s
legislation merely by passing a somewhat similar statute of
its own.

       iii. Federal Courts

Federal courts have followed both lines of reasoning when
interpreting compacts containing "concurred in" language.
Courts in the Second Circuit have uniformly adopted the
express intent standard, finding the New York view"more
in line with the language" of the compacts before them.
Baron v. Port Auth. of New York & New Jersey, 968 F.
Supp. 924, 929 (S.D.N.Y. 1997) (declining to unilaterally
impose New York’s human rights laws on the New York and
New Jersey Port Authority where there was no evidence
that either state intended its anti-discrimination laws to
apply). See also Dezaio v. Port Auth. of New York & New
Jersey, 205 F.3d 62, 65 (2d Cir. 2000) (same); Rose v. Port
Auth. of New York & New Jersey, 12 F. Supp. 2d 516, 523
(S.D.N.Y. 1998) (stating that the same or similar public
policy of two states is not sufficient to impose law of either
state on the agency unless legislation "expressly mentions
the bi-state entity"); Settecase v. Port Auth. of New York &
New Jersey, 13 F. Supp. 2d 530, 535-36 (S.D.N.Y. 1998)
("[I]f New York and New Jersey intend their own . . . laws
to apply to the Port Authority, they have the means to do
so clearly and expressly, as they have done for other
laws.").

Within our circuit, however, the district courts have
espoused both views. The District Court for the District of
New Jersey has applied the New Jersey complementary or

                                8


parallel standard. Moore v. Del. River Port Auth., 80 F.
Supp. 2d 264, 268 (D.N.J. 1999) (citing Int’l Union of
Operating Eng’rs, Local 68 v. Del. River & Bay Auth. , 688
A.2d 569 (N.J. 1997)). In Moore, the court refused to apply
New Jersey common law regarding wrongful discharge and
breach of contract to the Delaware River Port Authority, a
bi-state entity whose compact includes "concurred in"
language. Id. at 271. In arriving at that result, however, the
court analyzed whether the common law of New Jersey was
substantially similar to the common law of Pennsylvania,
bypassing any discussion as to what was required in order
for a law of one state to be "concurred in" by the other.

In contrast, in Delaware River Port Authority v. Fraternal
Order of Police, Penn-Jersey Lodge 30, 135 F.Supp.2d 596,
609 (E.D.Pa. 2001), rev’d on other grounds, Delaware River
Port Authority v. Fraternal Order of Police, Penn-Jersey
Lodge 30, 290 F.3d 567 (3d Cir. 2002), Judge Robreno in
the District Court for the Eastern District of Pennsylvania
recently noted that "as a general rule of statutory
interpretation, surrenders of sovereignty are to be strictly
construed in terms of their scope," Id. at 603, concluding
that "the ambiguous term ‘concurred in’ of[the Delaware
River Port Authority compact should] be interpreted to
require the express consent of both legislatures before
additional duties are imposed" upon the bi-state entity. Id.
at 604. The court further noted that the weight of authority
supported the express intent standard, and that the New
Jersey complementary or parallel standard was based on a
misreading of the law of compacts. Id. at 604-05. The court
went on to hold that because neither New Jersey nor
Pennsylvania had expressly stated that they intended to
impose their collective bargaining laws on the Delaware
River Port Authority, they had not "concurred in" the
application of those laws. Id. at 609.

On appeal, we did not reach the merits of Judge
Robreno’s ruling, or of either the New York express intent
or the New Jersey complementary or parallel views, but
reversed on different grounds, concluding that the parties’
litigation involved an attack on a New Jersey judgment
entitled to preclusive effect. Lodge 30, 290 F.3d at 572
(discussing Fraternal Order of Police, Penn-Jersey Lodge 30

                                9


v. Del. River Port Auth., 733 A.2d 545 (N.J. Super. Ct.
1999)). The parties to the Lodge 30 litigation were in privity
with the parties in a case resolved in the New Jersey
courts; we were therefore required to give preclusive effect
to the New Jersey court’s ruling regarding the
complementary or parallel test.4Id. at 577. In dicta,
however, we noted, "Were we sitting on the New Jersey
courts, we might have interpreted the respective statutes
and the DRPA’s obligations to its patrol officers differently.
But we may not reconsider the New Jersey judgment."5 Id.

       iv. Bridge Commission Compact Before Us

The cases discussed above all address the interpretation
of bi-state compacts that expressly authorize the
compacting states to amend the compact through
legislation "concurred in" by the other. As we have noted,
the Compact before us contains no such language, nor did
the relevant laws of each state evince an intent to apply to
the Compact as such. The only case to address a bi-state
compact in a similar setting is International Union of
Operating Engineers, Local 68 v. Delaware River & Bay
Authority, 688 A.2d 569 (N.J. 1997). In Local 68, the New
Jersey Supreme Court held that New Jersey and Delaware’s
collective bargaining laws were complementary and parallel
with regard to collective negotiations for public employees
and therefore applied to the Delaware River and Bay
Authority. Id. at 576. The court so held in spite of the fact
_________________________________________________________________

4. The fact that Lodge 30 involved the interpretation of a bi-state
compact, a question of federal law, by a state court made no difference
to our preclusion analysis. As Judge Scirica explained:

       "State courts may answer federal questions. The unions and the
       DRPA agreed to litigate this issue of federal law in New Jersey
       courts. If those courts answered federal questions erroneously, it
       remained for state appellate courts, and ultimately for the United
       States Supreme Court, to correct any mistakes." Lodge 30, 290 F.3d
       at 576.

5. Recently, the New Jersey Supreme Court characterized our ruling in
Lodge 30 as having endorsed New Jersey’s view that express statements
are not required to modify bi-state compacts. Ballinger v. Del. River Port
Auth., 800 A.2d 97, 102 (N.J. 2002). We do not read our ruling as having
reached the merits issue.

                                10


that the compact did not clearly authorize modification
through legislation "concurred in" by both states, and
neither New Jersey nor Delaware had expressed any intent
to amend the compact or apply state labor laws to the
Authority.6 The court found that because both states had a
public policy endorsing collective bargaining, the
legislatures had "in effect . . . modified the Compact." Id.

Here, Local 542 urged before the District Court that Local
68 was controlling and persuasive, but the Court rejected
its reasoning. The District Court reviewed the New York and
New Jersey views and the federal case law, and found that
the New Jersey view has not been accepted as a matter of
federal law. The District Court also considered Local 542’s
argument that the lack of "concurred in" language in the
Compact provides a basis to distinguish it from, and
therefore a basis to reject, the New York and Second Circuit
approaches. But the District Court concluded that"rather
than distinguishing those, it substantially weakens[Local
542]’s position, because absent concurred in, there would
be no basis, whatsoever, to look to any parallel legislation."
Since there had been "no showing that either the New
Jersey or the Pennsylvania statutes were intended, by the
legislatures, to be applicable to this particular commission,"
the court awarded summary judgment to the Commission.

Having reviewed the state of the law on this issue, we
agree with the District Court that, given the facts of this
case and the unique nature of this Compact, New Jersey
and Pennsylvania have not exhibited any express intent to
amend the Compact or apply their collective bargaining
laws to the Commission’s employees. We are persuaded,
first, by the fact that the Compact does not contain any
provision enabling either state to modify it through
legislation "concurred in" by the other, and second, by the
_________________________________________________________________

6. Curiously, earlier in the same opinion, the New Jersey Supreme Court
held that the New Jersey PERC does not have jurisdiction over the
Delaware River and Bay Authority because "[s]uch jurisdiction ‘must be
expressly given to the [PERC] by the Legislatures of New Jersey and
Delaware, and not inferred by the courts.’ " Local 68, 688 A.2d at 574.
This view does not appear consistent with the court’s later holding
applying New Jersey and Delaware labor laws to the Authority when no
expression of intent was present.

                                11


logic of the reasoning underpinning the New York express
intent standard, which the District Court here found to be
persuasive.

First, we can find no language in the Compact
authorizing New Jersey and Pennsylvania to permit
amendment of the terms of their agreement simply by each
states’ passing similar legislation. Judicial restraint dictates
that we not divine a way for them to do so. Our"first and
last order of business is interpreting the compact," Texas,
462 U.S. at 567-68; we may not read into it language or
intent that is simply not there. Principles of statutory
interpretation also require us to strictly construe
surrenders of sovereignty. As noted above, a party wishing
to make a claim of right or entitlement against a state must
prove that the state has expressly relinquished that
measure of sovereignty "in terms too plain to be mistaken."
Skelly, 66 U.S. at 446.

Neither New Jersey nor Pennsylvania has expressed any
intent to allow the modification of this Compact through
the passage of legislation concurred in by the other, let
alone legislation of one state that bears a resemblance to
the other. We cannot subscribe to the view espoused by the
New Jersey Supreme Court in Local 68 that the mere
existence of similar public policies set forth in each state’s
collective bargaining laws is enough to imply an intent on
the part of both states to amend the Compact and apply
those laws to the Commission. Nor do we agree with Local
542 that the absence of a provision enabling the states to
modify the Compact through legislation "concurred in" by
the other means that no express intent is required. Rather,
we agree with the District Court that the absence of
"concurred in" language actually weakens Local 542’s
argument. This is because the "concurred in" provision
introduces the issue of, and mechanism for, modification,
without which there is absolutely no authority for, let alone
specific means of accomplishing, a modification of the
Compact by passing similar laws.7 Thus the absence of the
_________________________________________________________________

7. We do not need to reach the issue of whether the presence of
"concurred in" language would be a sufficient demonstration of intent
nor whether Congress would also have to consent to any modifications.
Judge Roth is of the opinion that in the case of a bi-state compact that
contains no provision for amendment, Congressional consent to any
modification would be required.

                                12


"concurred in" language is fatal. We find that in this case
New Jersey and Pennsylvania have not expressed any
intent to amend the Compact. We will not amend it for
them.

We find further support for our decision in the
observation made by Judge Robreno in his Lodge 30
opinion, that the New Jersey complementary or parallel
standard appears to be based on a misinterpretation of
compact law. The New Jersey Supreme Court based the
complementary or parallel test articulated in Local 68 and
Bunk on Eastern Paralyzed Veterans Association, Inc. v.
Camden, 545 A.2d 127 (N.J. 1988) and Nardi v. Delaware
River Port Authority, 490 A.2d 949 (Pa. Commw. Ct. 1985).
See Local 68, 688 A.2d at 575; Bunk, 676 A.2d at 122. A
closer reading of these two cases, however, reveals that
neither stands for the proposition that express legislative
intent is unnecessary.8 Rather, both cases lend further
support to the New York express intent test governing the
application of the "concurred in" language, asking first
whether the two states have passed legislation that
expressly applies to the bi-state entity, and then whether
that legislation is substantially similar. See Malverty, 524
N.E.2d at 422.

In Nardi, the Pennsylvania Commonwealth Court
examined Pennsylvania and New Jersey’s employee benefits
laws, both of which expressly stated that they applied to
the Delaware River Port Authority (the bi-state agency at
issue), to determine whether they were substantially
similar. Nardi, 490 at 950-51. The court found that the
laws were not identical and refused to apply either one. Id.
at 952. Similarly, in Eastern Paralyzed, the court refused to
unilaterally impose New Jersey’s Uniform Construction
Code on the Delaware River Port Authority -- even though
the code expressly stated that it applied to all bi-state
agencies -- without "some showing of agreement by both
states to the enforcement of the [Code]." Eastern Paralyzed,
545 A.2d at 133-34.
_________________________________________________________________

8. New Jersey Supreme Court Justice Garibaldi expressed similar
concerns in her strongly worded dissent in Local 68. See Local 68, 688
A.2d at 576-77 (finding the majority’s result "an unwarranted expansion
of the dicta in Eastern Paralyzed") (citation omitted).

                                13


Principles of federalism further caution against inferring
an intent to amend in this case. A bi-state entity, created
by compact, is "not subject to the unilateral control of any
one of the States that compose the federal system." Hess,
513 U.S. at 42. Also, although Pennsylvania courts have
not spoken on this specific issue, they have noted
reluctance to equate the state’s individual action with
action on behalf of, or that binds, a bi-state agency. See,
e.g., Aveline v. Penn. Bd. of Probation & Parole, 729 A.2d
1254, 1257 n.10 (Pa. Commw. Ct. 1999) (a compact"takes
precedence over the subsequent statutes of signatory states
and, as such, a state may not unilaterally nullify, revoke or
amend one of its compacts if the compact does not so
provide") (citing Jill E. Hasday, Interstate Compacts in a
Democratic Society: The Problem of Permanence, 49 Fla. L.
Rev. 1 (1997)); Nardi, 490 A.2d at 950 ("neither creator
state can unilaterally impose additional duties, powers, or
responsibilities upon [a bi-state agency]").

Looking to the relevant statutes and the plain language of
the Compact, we find no intent on the part of either state
legislature to amend the Compact and impose collective
bargaining laws upon the Commission. The Compact grants
the Commission the authority to appoint employees,
determine their qualifications and duties, and fix their
salaries. N.J. Stat. Ann. S 32:8-1, Art. II (f)-(h); Pa. Stat.
Ann. tit. 36 S 3401, Art. II (f)-(h). The Compact neither gives
Commission employees the right to bargain collectively nor
imposes any requirement on the Commission to bargain
collectively with employee unions. Neither New Jersey nor
Pennsylvania’s collective bargaining laws mention the
Commission or state that the legislation is intended to
apply to bi-state agencies. To read into the Compact any
collective bargaining requirements would be to rewrite the
agreement between the two states without any express
authorization to do so. That is simply not our role.

IV. Judgment

For the reasons given, we will affirm the District Court’s
grant of summary judgment to the Commission. We leave it
to the legislatures of New Jersey and Pennsylvania to
                                14


amend the Compact and apply their collective bargaining
laws to the Commission, should they choose to do so.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15
