International Longshoremen's Association, Afl-cio, Appellee, v. North Carolina Ports Authority, Appellant,james W. Davis et al., Defendants, 511 F.2d 1007 (4th Cir. 1975)

For more than six years the North Carolina Ports Authority has refused to bargain with the International Longshoremen's Association (ILA) as the certified representative of certain Ports Authority employees under the Railway Labor Act, 45 U.S.C. §§ 151--188. There has been labor unrest, and disruption of work, including at least one instance of closing the port.¹  On a previous appeal we held the Ports Authority was a 'carrier' within the meaning of the Act, reversing a dismissal of the complaint by the district court, 332 F. Supp. 95, and remanding. 463 F.2d 1 (4th Cir. 1972). In a carefully reasoned opinion the district court has now rejected the Authority's remaining defenses and held it must recognize and bargain with the union. 370 F. Supp. 33 (E.D.N.C. 1974). We affirm.

On the issues of whether the employees of the Authority represented by the ILA are 'employees' within the meaning of the RLA, and whether due process was observed at the proceedings before the National Mediation Board prior to the certification election, we adopt the opinion below.²  Id. at 39--41. We are also in complete agreement with Chief Judge Butler's reasoning in denying the Authority's defense of immunity from suit under the eleventh amendment, id. at 36--38, but the question is sufficiently sensitive to the warrant brief discussion.

It is now settled that a state of the union is protected against suits for damages by its own citizens by the eleventh amendment, and not simply by the more vulnerable doctrine of sovereign immunity. See Employees v. Missouri Public Health Dept., 411 U.S. 279, 309, 93 S. Ct. 1614, 36 L. Ed. 2d 251 (1973) (Brennan, J., dissenting). Thus the suit should have been dismissed unless its maintenance could be said to lie within the doctrine of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), or the state has effectively consented to be sued.³ 

We fully agree with the district judge that when a state leaves its traditional governmental activity and enters upon a proprietary enterprise that is '. . . subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation.' Parden v. Terminal Ry., 377 U.S. 184, 196, 84 S. Ct. 1207, 1215, 12 L. Ed. 2d 233 (1964). The district court noted that this case is controlled by Parden and correctly distinguished Employees v. Missouri Public Health Dept., 411 U.S. 279, 93 S. Ct. 1614, 36 L. Ed. 2d 251 (1973).

We adopt the district court opinion as our own. 370 F. Supp. 33 (E.D.N.C. 1974).

Affirmed.