Brenan v. Rubino
Brenan v. Rubino
Opinion of the Court
The four Brennan brothers, George, Harold, John and William, instituted this article 78 proceeding in August of 1958 to obtain judicial review of a determination made by the Waterfront Commission, after a hearing, which (1) denied applications by each of them for inclusion in the Longshoremen’s Register as checkers; (2) revoked their temporary registrations as such checkers; and (3) removed each of them from the Longshoremen’s Register as longshoremen, with leave to reapply immediately for registration as longshoremen.
Prior to the enactment of the Waterfront Commission Act in 1953, no license or permit was required to work on the docks either as a longshoreman or as a checker. The 1953 Act, however, required the Waterfront Commission to establish a “ long
Upon the enactment in 1957 of the provision relating to the registration of checkers, each of the Brennan brothers, already registered as a longshoreman, filed an application with the commission for registration as a checker and, in May of 1957, the commission issued temporary checker registrations to all four of them. Some months later, in October, 1957, in accordance with its usual practice, the commission initiated proceedings to determine whether (1) to grant their application as checkers, (2) to revoke or suspend their temporary checker registrations, and (3) to revoke or suspend their registration as longshoremen. Following the statutory procedure specified in the Waterfront Commission Act (part I, art. XI), the commission issued a notice of hearing, in which the petitioners were charged with specific acts of misconduct, and held a hearing before a hearing officer at which the petitioners Avere present, Avith counsel. After eight days of taking testimony, the hearing officer made findings which in every respect, except one, bore out the commission’s charges and, on his recommendation and findings, the commission issued the orders which are the subject of this article 78 proceeding.
In general terms, the commission’s notice of hearing charged that, in the period from December, 1953 to May, 1957, the Brennan brothers had “ combined and confederated Avith each other to unlawfully prevent other persons from exercising their lawful trade and doing lawful acts, by force, threats and intimi
The other significant instance of the success of these tactics of force concerned the appointment of one of the brothers as the second dock boss, the other one being Brennan, Sr. Harold Brennan was appointed by Walker, the pier Superintendent, as the second dock boss after a work stoppage was called by George with the express purpose of gaining Harold’s appointment. This appointment was made despite the fact that Walker did not believe that another dock boss was required and despite the fact that, even if one were required, he did not think Harold should have been chosen.
Viewing the evidence as a whole, the Waterfront Commission was justified in concluding that the presence of each of the Brennan brothers at the piers "constitute [s] a danger to the public peace or safety” (Waterfront Commission Act, part I, art. VIII, subd. 3, par. [c]) and that they each lack "good character and integrity ” (§ 5-n, subd. 3, par. [a]). This being so, the commission’s determination as to both longshoreman and checker registration may not be successfully attacked.
Although the Appellate Division concluded that "a reasonable basis exists for the [commission’s] determination ”, the three-man majority, nevertheless, felt obliged to modify" so
The first two paragraphs of the order made by the commission in this case direct
“That the applications of [the four Brennans] for inclusion in the Longshoremen’s Register as checkers be and they hereby are each denied; * * *
‘ ‘ That the temporary registrations as checkers heretofore issued to [the four Brennans] be and they hereby are each revoked ’ ’.
To say that these two paragraphs preclude “petitioners forever from seeking inclusion in the Longshoremen’s Register as checkers ”, as the Appellate Division did, constitutes a misinterpretation not only of the terms of the order, but also of the commission’s power under the statute (part I, art. XI, subd. 6).
As we read them, neither the first nor second paragraph of the order permanently bars the petitioners from seeking inclusion in the register as checkers. The first paragraph simply denied the applications, with no word at all as to future applications, while the second paragraph merely revoked the temporary registrations. The only paragraph of the commission’s order which directly related to the petitioners’ future rights was the third paragraph which “permanently removed [the petitioners] from the Longshoremen’s Register * * * with leave to reapply immediately for registration as longshoremen ” — and this paragraph was not modified by the Appellate Division. Our interpretation is borne out by the fact that, although the statute empowers the commission to “ remove [any registered checker] from the longshoremen’s register as a checker for such period of time as it deems in the public interest ” (§ 5-n, subd. 5), the commission’s power on the determination of an application is expressly limited by the following statutory
Nor was there warrant for the Appellate Division’s modification of the second paragraph of the commission’s order. Indeed, granting leave to the Brennans to reapply for temporary registration as checkers is proscribed by the Waterfront Commission Act, for, the statute explicitly recites, the commission is empowered to grant a temporary registration as a checker only ‘ ‘ pending final action on an application * * * for a period * * * not in excess of six months ” (§ 5-n, subd. 4). In view of the fact that final action on the application had been taken, and in view of the further fact that, in any event, six months had passed since the Brennans’ temporary registration had been granted, the commission was required by statute to revoke the temporary registration. A modification granting leave to reapply for such temporary registration is, therefore, beyond the law.
Thus, the Waterfront Commission’s determination, and this construction reflects the commission’s own view, does not bar the Brennans from reapplying for registration as checkers and, insofar as the Appellate Division modification was designed to give them this right, it was unnecessary. It is to be noted, however, that any future application by the Brennans will be governed by section 1.13 of the commission’s regulations which prescribes that, ‘ ‘ After an application or petition has been denied * * * no further application therefor may be submitted except upon leave of the commission for good reason shown”. (N. T. Off. Comp, of Codes, Rules & Regulations [12th Off. Supp., 1959], p. 1106.) If the modification of the commission’s order was intended to circumvent the requirement
In sum, then, the commission had the power under the Waterfront Commission Act but to grant or deny an application for checker registration, and the first paragraph of its order is in fact an order of denial, not one prohibiting future applications. And, as to the second paragraph of its order revoking the Brennans’ temporary checker registrations, the commission simply directed what the statute mandated. It follows, therefore, that the Appellate Division’s modification was not permissible.
The Appellate Division order, insofar as it modified the determination of the Waterfront Commission, should be reversed, without costs, and the determination of the commission confirmed and reinstated.
Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis, Burke and Foster concur.
Order of Appellate Division reversed, without costs, and the determination of the Waterfront Commission reinstated.
. A checker, as defined in the Waterfront Commission Act (L. 1953, eh. 882, § 5-a, snbd. [5], as amd. by L. 1957, eh. 188, § 1), is “a longshoreman who is employed to engage in direct and immediate checking of waterborne freight or of the custodial accounting therefor or in the recording or tabulation of the hours worked at piers or other waterfront terminals by natural persons employed by carriers of freight by water or stevedores.”
Reference
- Full Case Name
- In the Matter of George Brennan, against Carl J. Rubino, Constituting the Waterfront Commission of New York Harbor
- Status
- Published