                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-1995

Carson v. Waterfront Comm. of NY Harbor
Precedential or Non-Precedential:

Docket 95-5309




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Recommended Citation
"Carson v. Waterfront Comm. of NY Harbor" (1995). 1995 Decisions. Paper 321.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/321


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                             No. 95-5309



                            DONALD CARSON,

                                             Appellant

                                  v.

           WATERFRONT COMMISSION OF NEW YORK HARBOR;
                        GERALD P. LALLY;
       INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ("ILA");
               ATLANTIC COAST DISTRICT OF THE ILA;
                           JOHN BOWERS;
      INTERNATIONAL LONGSHOREMEN'S ASSOCIATION LOCAL 1588



         On Appeal from the United States District Court
                 for the District of New Jersey
                      (D.C. No. 94-cv-01594)


                     Argued November 28, 1995
               BEFORE: MANSMANN, COWEN and SEITZ,
                          Circuit Judges

                    (Filed December 28, 1995)




Fredric J. Gross (argued)
7 East Kings Highway
Mount Ephraim, New Jersey    08059

          COUNSEL FOR APPELLANT
          DONALD CARSON

David B. Greenfield (argued)
Waterfront Commission of New York Harbor
42 Broadway
New York, New York 10004



                                  1
           COUNSEL FOR APPELLEE
           WATERFRONT COMMISSION OF NEW YORK HARBOR



                                        OPINION
                                                          `


COWEN, Circuit Judge.


             This case presents a Supremacy Clause challenge to New

Jersey's implementation of the Waterfront Commission Act of 1953,

an interstate compact between New York and New Jersey aimed at

eliminating racketeering and other pernicious activities in the

Port of New York District.          Appellant Donald Carson contends that

§ 8 of that Act conflicts with a 1984 amendment to the Labor-

Management     Reporting    and    Disclosure       Act       of   1959.      29   U.S.C.

§504(d).     Finding that the 1984 amendment effected no change in

Carson's rights whatsoever, we hold that his preemption claim is

barred by the Supreme Court's decision in De Veau v. Braisted,

363 U.S. 144, 80 S. Ct. 1146 (1960) (plurality opinion), which

rejected a claim that § 8 conflicted with the pre-1984 version of

§ 504.     We therefore will affirm the district court's order

dismissing     Carson's    claims       against     the       Waterfront     Commission

pursuant to Fed. R. Civ. P. 12(b)(6).

                                          I.

             Donald   Carson      was    an    officer        in   the     International

Longshoremen's Association ("ILA") and two related entities when

a jury in the United States District Court for the District of

New   Jersey    found     him   guilty        of   racketeering          conspiracy    in

violation of 18 U.S.C. § 1962(d), and extortion conspiracy in


                                          2
violation of 18 U.S.C. §§ 2 and 1951.                   Two days later, Gerald

Lally,     the     General     Counsel      to    the      Waterfront        Commission

("Commission"),       advised      John    Bowers,      ILA's    President,          that

Carson's continued employment after his conviction would place

the union in violation of New Jersey's enactment of section 8 of

the Waterfront Commission Act ("WCA"), N.J. Stat. Ann. § 32:23-

80,1 which forbids a union from operating as such in New Jersey

if one of its officers has been "convicted" of certain crimes.

            Bowers forwarded a copy of Lally's letter to Carson and

advised him that in light of his conviction, he was suspended

from his union positions.            Several days later, the Commission,

through Lally, advised Bowers that suspension of a convicted

union officer was insufficient to comply with § 8 of the WCA.

Accordingly, Bowers sent Carson another letter informing him that

he   was   being    "removed      from    all    offices    of   the   ILA     and   its

affiliates and all fringe benefit funds."                   Letter from Bowers to

Carson     of    4/25/88,    at    1.          Carson   appealed       his    criminal
            1
                 No person shall solicit, collect or
            receive any dues, assessments, levies, fines
            or contributions, or other charges within
            this State of New Jersey for or on behalf of
            any labor organization, which represents
            employees registered or licensed pursuant to
            the provisions of this act . . . if any
            officer . . . has been convicted by a court
            of the United States, or any State or
            territory   thereof,   of   treason,   murder,
            manslaughter or any felony, high misdemeanor
            or misdemeanor involving moral turpitude, or
            any   crime    or   offense    enumerated   in
            subdivision 3(b) of section 5-n of this act,
            unless he has been subsequently pardoned
            therefor . . . .

N.J. Stat. Ann. § 32:23-80.

                                           3
conviction,   and    we    vacated    the     judgment.   United     States   v.

Carson, 969 F.2d 1480 (3d Cir. 1992). The indictment ultimately

was dismissed.

            Carson brought this suit against the Commission, Lally

and various ILA officials.2               His principal claim was that by

enforcing § 8 of the WCA, which required his removal upon the

return of a guilty verdict, the defendants conspired to deprive

him   of   wages    to     which     he    claims   convicted-but-exonerated

officials are entitled under the 1984 amendment to § 504 of the

Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA").

Section 504(d) of the LMRDA requires unions to escrow the wages

of an official "barred by virtue of [that] section" and to remit

those wages to the official if he is ultimately exonerated.                   29

U.S.C. § 504(d). Since the escrow provision does not take effect

until there is a "conviction," which § 504(c) defines as the

entry of a judgment of conviction (i.e., at sentencing), Carson

alleged that the Commission's action in seeking and obtaining his

removal    based    on    the   state-law      interpretation   of   the   term

2
Carson's claims against the ILA officials were enjoined pursuant
to a December 21, 1994, order of the United States District Court
for the Southern District of New York, which had before it a
massive civil RICO action against ILA and Carson. That action
ultimately resulted in a judgment against Carson, and an appeal
to the Court of Appeals for the Second Circuit was partially
successful.   United States v. Carson, 52 F.3d 1173 (2d Cir.
1995).    Both parties to that appeal have petitioned for
rehearing. In the meantime, Carson had appealed separately from
the Southern District's order enjoining his claims against the
ILA defendants. By stipulation, however, that appeal was being
held in abeyance pending the resolution of the parties'
respective petitions for rehearing.        The district court,
therefore, granted Carson's request for an administrative
termination of his claims against the ILA defendants.

                                          4
"conviction"      in   §    8    of    the       WCA    (i.e.,     a     guilty    verdict)

contravened the Supremacy Clause and was unlawful.

           In     granting      the    Commission's            motion    to    dismiss    for

failure    to     state     a    claim,       the      district        court     disagreed.

Separating its analysis into two parts, the district court first

looked to whether the definition of "conviction" in § 8 of the

WCA contravened the pre-1984 version of § 504 of the LMRDA, which

defined "conviction" as a judgment from which no further appeals

could be taken.           The district court noted initially that the

Supreme Court in De Veau v. Braisted, 363 U.S. 144, 80 S. Ct.

1146 (1960) (plurality opinion), held that § 8 of the WCA was not

preempted by the pre-1984 version of § 504 of the LMRDA.                                 Then,

relying    on   International          Longshoremen's            Ass'n    v.     Waterfront

Commission, 642 F.2d 666 (2d Cir.), cert. denied, 454 U.S. 966,

102   S.    Ct.     509     (1981),          and       Local     1804,        International

Longshoremen's      Ass'n       v.    Waterfront        Commission,       428     A.2d    1283

(N.J. 1981), the district court concluded that "[i]t has been

judicially settled that section 504(c)'s pre-1984 definition of

'conviction' did not pre-empt the viability of section 8."                                 J.

App. at 91.

            The district court then turned to the current version

of § 504 of the LMRDA and determined that
               [t]he    present     definition    of
               "conviction" under section 504(c)
               reads   closer   to   the   original,
               practical thrust of section 8. The
               addition of section 504(d) has not
               imposed additional responsibilities
               upon the Commission or Lally. That
               section   does    not   require   the
               Waterfront Commission to establish


                                             5
                   and maintain an escrow account for
                   the benefit of union officials.
                   Therefore, neither the change of
                   504(c) nor the addition of 504(d)
                   presents a significant departure
                   from   section   504  pre-1984  to
                   invalidate section 8.


App.   at   91-92.     After     holding     that   Lally,     the   Commission's

General Counsel, was entitled to qualified immunity, the district

court dismissed Carson's complaint against both the Commission

and Lally. This appeal followed.             Carson does not challenge the

district court's qualified immunity determination in this appeal.

                                      II.

            The district court's jurisdiction was premised upon 28

U.S.C. §§ 1331, 1332 and 1367.         The district court directed entry

of final judgment on Carson's claims against the Commission under

Fed. R. Civ. P. 54(b).          Our jurisdiction over this appeal from a

final determination of the district court rests on 28 U.S.C.

§1291.      We   exercise   plenary    review       over   a   district      court's

dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to

state a claim.

                                      III.

            The gravamen of Carson's Supremacy Clause challenge is

that the 1984 amendment to § 504 of the LMRDA, which created the

escrow requirement, expressed a clear congressional intent that

criminally convicted union officials who are removed from office

but ultimately exonerated should be entitled to their wages:

"[t]his new subsection . . . is designed to mitigate the harm of

a   wrongful     conviction."      Carson's    Br.    at   13.       Since    strict



                                       6
application       of     New        Jersey's       interpretation              of     the        term

"conviction" in § 8 of the WCA operates to remove convicted union

officials before § 504(d)'s escrow requirement can be triggered,

Carson contends, the Supremacy Clause requires that the WCA bow

to the paramount federal policy.                   We disagree.

                                             A.

               Carson hinges his claim on the 1984 amendment to § 504

ostensibly because the Supreme Court's decision in De Veau, 363

U.S. at 144, 80 S. Ct. at 1146, rejected a generalized claim that

§ 8 of the WCA was preempted by the pre-1984 version § 504 of the

LMRDA    and    because      both     the   Court       of    Appeals         for    the    Second

Circuit and the New Jersey Supreme Court, prior to 1984, rejected

the     very    claim        Carson     raises          here.           See     International

Longshoremen's         Ass'n   v.     Waterfront         Comm'n,        642    F.2d        666    (2d

Cir.), cert. denied, 454 U.S. 966, 102 S. Ct. 509 (1981); Local

1804, Int'l Longshoremen's Ass'n v. Waterfront Comm'n, 428 A.2d

1283    (N.J.    1981).        Therefore,          as    a    way   around          this    rather

formidable body of precedent, Carson has attempted to demonstrate

an intervening change in the law which would render De Veau and

its progeny inapplicable.

               Carson's argument that the escrow provision added by

the 1984 amendment to § 504 demonstrates a special congressional

concern with "mitigat[ing] the harm of a wrongful conviction" is

fatally    flawed       at    its     inception.             As   the    district          court's

discussion implied, the post-1984 version of 29 U.S.C. § 504

expressed no more of a congressional intent "to mitigate the harm

of a wrongful conviction" than did the pre-1984 version.                                    On the


                                               7
contrary, convicted union officials are in fact worse off after

the 1984 amendment.          A comparison of the former and current

versions of § 504, the pertinent provisions of which we will set

forth in the margin, demonstrates this conclusively.

              Under the pre-1984 version of § 504,3 a union official

was    required    to   be   suspended    for   five   years   upon   being

"convicted" of certain crimes.          The statute defined "conviction"

as a judgment from which no further appeals have been or could

have   been    taken.   Thus,   under    federal   law,   union   officials

convicted of a crime listed in § 504 could retain their positions

and receive wages until such time as their appeals had been

exhausted; only those officials whose convictions were upheld on

appeal were required to step down.          The obvious effect was that

criminally convicted officials were entitled to work and receive

3
(a) [P]ersons convicted of robbery, bribery, etc.

                    No person who . . . has been convicted of, or
              served any part of a prison term resulting from his
              conviction of, [certain enumerated crimes] . . . shall
              serve--
                      (1) as an officer . . . of any labor
                    organization,
                      . . . .
              during or for five years after . . . such conviction .
              . . .

              . . . .

              (c) Definitions

                   For the purposes of this section, any person shall
              be deemed to have been "convicted" . . . from the date
              of the judgment of the trial court or the date of the
              final sustaining of such judgment on appeal, whichever
              is the later event . . . .

29 U.S.C. § 504 (1982) (amended 1984 & 1987).

                                     8
wages   during   the   pendency   of       their   appeals   irrespective   of

whether they were ultimately exonerated.

           The 1984 amendment, however, required that convicted

union officials be removed far sooner than under the previous

version of § 504.        Under the current version,4 all convicted

4
           (a) [P]ersons convicted of robbery, bribery, etc.

                No person who . . . has been convicted of, or
           served any part of a prison term resulting from his
           conviction of, [certain enumerated crimes] . . . shall
           serve or be permitted to serve--
                  . . . .
                  (2) as an officer . . . of any labor
                organization,
                  . . . .

           during or for the period of thirteen years after such
           conviction or after the end of such imprisonment,
           whichever is later . . . .

           . . . .

           (c) Definitions

                For the purpose of this section--
                  (1) A person shall be deemed to have been
           "convicted" . . . from the date of the judgment of the
           trial court, regardless of whether that judgment
           remains under appeal.
                       . . . .

           (d)   Salary of person barred from labor organization
                 office during appeal of conviction

                Whenever any person--
                  (1) by operation of this section, has been
           barred from office . . . as a result of a conviction,
           and
                  (2) has filed an appeal of that conviction,

           any salary which would be otherwise due such person by
           virtue of such office or position, shall be placed in
           escrow by the individual employer or organization
           responsible for payment of such salary.     Payment of
           such salary into escrow shall continue for the duration

                                       9
officials must be removed from office upon entry of a judgment of

conviction (i.e., at sentencing).                  See 29 U.S.C. § 504(c).                If

that had been the extent of the 1984 amendment, exonerated and

non-exonerated officials alike no longer would have been entitled

to   wages      during    the    pendency    of        their       appeals.     Therefore,

Congress     also      added    subsection       (d)    to     §    504,    requiring   that

unions place the wages of a convicted official into an escrow

account in the event that the official ultimately is exonerated.

If the official is not exonerated, the wages revert back to the

union.     If the official is exonerated, however, he is entitled to

the wages, but, unlike the pre-1984 state of affairs, is barred

from office in the interim.

                Far    from     representing      the        significant,       beneficial

change     in    the    rights    of   wrongfully        convicted         officials    that

Carson would have us ascribe to it, the escrow requirement added

by   the        1984   amendment       simply      maintains          the     status    quo.

Convicted-but-exonerated officials, both before and after 1984,

are entitled to receive their wages during the pendency of their

appeals.        But viewed as a whole, the 1984 amendment contained two


                of the appeal . . . . Upon the final reversal of such
                person's conviction on appeal, the amounts in escrow
                shall be paid to such person.          Upon the final
                sustaining of such person's conviction on appeal, the
                amounts in escrow shall be returned to the individual
                employer or organization responsible for payments of
                those amounts.   Upon final reversal of such person's
                conviction, such person shall no longer be barred by
                this statute from assuming any position from which such
                person was previously barred.

29 U.S.C. § 504 (1988) (as amended) (emphasis added).



                                            10
serious     drawbacks      for   convicted    union      officials:        (1)   non-

exonerated officials no longer are entitled to their wages during

appeal; and (2) exonerated officials, although entitled to wages

during the pendency of their appeals, are not permitted to work

during that time.          Accordingly, Carson's claim that Congress'

1984    amendment     to    §    504   evinces     a    special        concern   with

"mitigat[ing] the harm of a wrongful conviction" is inaccurate.

                                         B.

            Since the 1984 amendment worked no positive change in

Carson's rights as a wrongfully convicted official, his only

plausible Supremacy Clause claim is that to the extent state-

court decisions define the term "conviction" in § 8 of the WCA as

a verdict of guilty, that definition has always been preempted by

section 504 of the LMRDA.              Indeed, prior to 1984, federal law

permitted all convicted officials to remain in office until their

appeals had been exhausted, which necessarily means that the

conflict between § 8 and the pre-1984 version of § 504 was even

more glaring.        If Carson is correct, then § 8 presumably must

yield to § 504 after 1984 since it should have yielded all along.

            To prevail on the merits of his claim, however, Carson

faces   a   nearly   insurmountable       hurdle   in    form     of    the Supreme

Court's decision in De Veau, 363 U.S. at 144, 80 S. Ct. at 1146.

As we noted above, De Veau specifically rejected a challenge to §

8 of the WCA as being inconsistent with the pre-1984 version of §

504 of the LMRDA, and two subsequent pre-1984 decisions, relying

on De Veau, rejected the very claim Carson advances here.                        There

are two potential paths around De Veau and the decisions relying


                                         11
on it; Carson urges that we follow both.                  We consider each one in

turn.

                                           1.

               Carson    implies    that   De    Veau    should    not    apply     here

because it was decided in 1960 and it was not until 1981 that

state and federal courts began to interpret the term "conviction"

in   §   8   of    the   WCA   to   mean   a    guilty    verdict.        See,    e.g.,

International Longshoremen's Ass'n, 642 F.2d at 666; Local 1804,

428 A.2d at 1283.            Thus, the argument continues, De Veau could

not have foreclosed a claim of inconsistency between § 8 of the

WCA and §504 that was essentially unforeseeable in 1960.                          While

this argument has some logical appeal, De Veau's broad rationale

requires that we reject it.

              De Veau was a declaratory judgment action in which the

plaintiffs alleged that § 8 of the WCA, through its rather severe

disqualification provisions, unduly interfered with their rights

under    the      National     Labor   Relations        Act    ("NLRA")   to     choose

bargaining representatives.             Plaintiffs also alleged that § 8's

disqualification provisions were harsher than those contained in

§504 of the LMRDA and, thus, the former was impliedly preempted

by the latter.           (The most glaring inconsistency was that § 8

provided for a lifetime bar of convicted officials whereas § 504

required only a five-year disqualification.)                    After exhaustively

tracing      the    developments       leading    to     the    submission     to   and

approval by Congress of the WCA and its enactment by the New York

and New Jersey legislatures, Justice Frankfurter, writing for the

plurality, rejected the preemption claim regarding the NLRA.                          He


                                           12
did so on the ground that Congress, in approving the WCA, had

expressly consented to supplemental legislation like § 8 even

though it technically was not part of the compact.                    De Veau, 363

U.S. at 150-54, 80 S. Ct. at 1150-51.

             Turning     to    the   plaintiffs'         contention    that   §   8

conflicted with the federal policy codified in § 504 of the

LMRDA, Justice Frankfurter observed two separate reasons strongly

militating against a finding of preemption. The first was that
               Congress itself has . . . imposed
               the same type of restriction upon
               employees'   freedom    to   choose
               bargaining representatives as New
               York seeks to impose through § 8,
               namely, disqualification of ex-
               felons for union office[. That] is
               surely evidence that Congress does
               not view such a restriction as
               incompatible    with   its    labor
               policies.


Id. at 156, 80 S. Ct. at 1152.            Significantly, the general policy

of     excluding      convicted      officials,         not    specific     claimed

inconsistencies, was the focus of the High Court's preemption

analysis.

            Responding to the plaintiffs' specific contention that

"any state disablement from holding union office on account of a

prior felony conviction, such as § 8, which has terms at variance

with    §   504(a),    is     impliedly        barred   by    it,"   id.,   Justice

Frankfurter concluded that
               [j]ust the opposite conclusion is
               indicated by the 1959 Act, which
               reflects congressional awareness of
               the problems of pre-emption in the
               area of labor legislation, and
               which did not leave the solution of
               questions    of   pre-emption    to


                                          13
                     inference.     When Congress meant
                     pre-emption to flow from the 1959
                     Act   it   expressly  so   provided.
                     Sections 205(c) and 403 . . . are
                     express provisions excluding the
                     operation      of    state      law,
                     supplementing provisions for new
                     federal regulation.    No such pre-
                     emption provision was provided in
                     connection with § 504[a].       That
                     alone is sufficient reason for not
                     deciding that § 504(a) pre-empts §
                     8 of the [WCA].


Id. at 156, 80 S. Ct. at 1152-53 (emphasis added).               The plurality

then    cited   to    a   provision   in   the   LMRDA   that,   in    its   view,

expressed a clear congressional intent to allow state legislation

such as §8 of the WCA:
               And to make the matter conclusive,
               § 603(a) is an express disclaimer
               of   pre-emption   of   state   laws
               regulating the responsibilities of
               union officials, except where such
               pre-emption is expressly provided
               in the 1959 Act. . . . In view of
               this    explicit    and    elaborate
               treatment of pre-emption in the
               1959 Act, no inference can possibly
               arise that §8 is impliedly pre-
               empted by §504(a).

Id. at 157, 80 S. Ct. at 1153.


            The ratio decidendi of the De Veau plurality's decision
is that § 8 and § 504(a) are compatible precisely because they

both are aimed at removing criminal elements from union office;

any    friction   between     the   two    is   constitutionally      permissible

because §504 lacks specific preemption language.                 We understand

De Veau, therefore, to reject a "facial" challenge to any and all

claimed inconsistencies between § 8 of the WCA and § 504 of the



                                          14
LMRDA. Standing alone, this would appear to mandate an affirmance

since no preemption language has been added to section 504 since

De Veau was decided.

                                        2.

            Carson     urges,   however,      that    to    the   extent    that   De

Veau's   holding      purports    to    bar     any    prospective         claim   of

inconsistency between § 8 of the WCA and § 504 of the LMRDA, it

was a plurality opinion and, thus, De Veau and its progeny do not

stand as a per se bar to his preemption claim.                        While this

argument also has some measure of surface appeal, after reading

Justice Brennan's opinion concurring in the judgment, we are not

persuaded.

            We would agree with Carson had Justice Brennan refused

to join Justice Frankfurter's opinion because he believed that

its reliance on the lack of express preemption language would

needlessly    bring      within   its        sweep    all    future    claims      of

inconsistency between § 8 and § 504 and impliedly reject them.

But that is not why Justice Brennan wrote separately.                        On the

contrary,    Justice    Brennan   agreed       with   the    plurality's      result

precisely because Congress expressly had consented to parallel

state legislation in enacting the LMRDA:
               Mr. Justice BRENNAN is of the
               opinion that . . . the [LMRDA]
               explicitly provides that it shall
               not displace such legislation of
               the States.   He believes that New
               York's disqualifications of ex-
               felons   from    waterfront  union
               office, on all the circumstances,
               and as applied to this specific
               area, is a reasonable means for



                                        15
                   achieving a legitimate state aim .
                   . . .


De Veau, 363 U.S. at 160-61, 80 S. Ct. at 1155 (Brennan, J.,
concurring in the judgment).               This language essentially mirrors

the second reason Justice Frankfurter offered for finding that §

504 did not preempt § 8.

            Justice       Brennan's       concurrence       suggests           at    most    a

disagreement with the plurality's methodology in rejecting the

plaintiff's initial contention that § 8 was preempted by the

NLRA. By noting that the LMRDA itself was sufficient evidence of

a    congressional    intent       not    to    preempt   §    8,    Justice          Brennan

implied that there was no need to conclude, as had the plurality,

that in approving the WCA Congress gave its express imprimatur to

state legislation like § 8 (which was not technically part of the

compact).        Because    the    NLRA    is    not   offered       as    a       basis    for

preemption in this case, the concurrence's differences with the

plurality    on    that    issue    are    irrelevant.         Quite       simply, five

Justices agreed in De Veau that in enacting the LMRDA in 1959,
Congress explicitly assented to the enactment of parallel state

restrictions on convicted union workers except where it expressly

had provided to the contrary.                  Accordingly, Carson's claim that

De   Veau lacks      precedential        value    because      it    was       a    plurality

opinion is without merit.

            Finally, we observe that in 1984 the Supreme Court

specifically reaffirmed De Veau's basic premise that the LMRDA

expressed    a    clear    congressional         intent   not       to    preempt       state

regulation    of    union    officials.          Brown    v.   Hotel       &       Restaurant


                                           16
Employees & Bartenders Int'l Union Local 54, 468 U.S. 491, 506,

104 S. Ct. 3179, 3188 (1984) ("[Section] 504 itself makes clear

that Congress did not seek to impose a uniform federal standard

on those who may serve as union officials.").                      Although Brown

dealt with a claim that New Jersey's regulation of unions in the

casino   industry    conflicted    with      the   NLRA,    much    of   the   Brown

Court's analysis was devoted to comparing New Jersey's regulatory

scheme to the New York version of § 8 of the WCA scrutinized in

De Veau.    In the process, Brown reaffirmed De Veau's refusal to

find § 8 preempted by federal labor policy.                        Since De Veau

controls, we conclude that Congress' refusal to add any specific

preemption language to § 504 since De Veau was decided compels an

affirmance.

            The district court's order of April 7, 1995, dismissing

Carson's    claims   against      the    Waterfront        Commission     will   be

affirmed.




                                        17
