Actions

Text

STATE OF NEW YORK
________________________________________________________________________

7155--C

2011-2012 Regular Sessions

IN ASSEMBLY

April 14, 2011
___________

Introduced by M. of A. CUSICK, FARRELL, ROBERTS -- Multi-Sponsored by --
  M. of A.  BOYLAND -- read once and referred to the Committee on Corpo-
  rations,  Authorities  and  Commissions  -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee  --  again  reported  from said committee with amendments, ordered
  reprinted as amended and recommitted to said committee --  recommitted
  to  the  Committee  on  Corporations,  Authorities  and Commissions in
  accordance with Assembly Rule 3, sec. 2 -- committee discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the waterfront commission act, in relation to empowering
  the waterfront commission to accept applications in the longshoremen's
  register

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 5-p of chapter 882 of the laws of 1953, constitut-
ing the waterfront commission act, as amended by chapter 431 of the laws
of 1999, is amended to read as follows:
  S 5-p. [Suspension or acceptance  of  applications  for  inclusion  in
longshoremen's] LONGSHOREMEN'S register[; exceptions].  [1.] The commis-
sion shall [suspend the acceptance of] ACCEPT applications for inclusion
in  the  longshoremen's  register  [for a period of sixty days after the
effective date of this act. Upon the termination of such sixty day peri-
od the commission shall thereafter have the power to make determinations
to  suspend  the  acceptance  of  application  for  inclusion   in   the
longshoremen's  register  for such periods of time as the commission may
from time to time establish and, after any such  period  of  suspension,
the  commission  shall  have  the power to make determinations to accept
applications for such period of time as the commission may establish  or
in  such  number as the commission may determine, or both. Such determi-
nations to suspend or accept applications shall be made by  the  commis-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10519-10-2
A. 7155--C                          2

sion]:  (a) [on its own initiative or (b)] upon the joint recommendation
in writing of stevedores and other employers of longshoremen in the port
of New York  district,  acting  through  their  representative  for  the
[purpose]  PURPOSES  of  collective bargaining with a labor organization
representing such longshoremen in such district, and such  labor  organ-
ization;  or  [(c)]  (B)  upon the petition in writing of a stevedore or
[another] OTHER employer  of  longshoremen  in  the  port  of  New  York
district which does not have a representative for the [purpose] PURPOSES
of  collective  bargaining  with  a labor organization representing such
longshoremen. [The commission shall have the power to accept  or  reject
such joint recommendation or petition.
  All  joint  recommendations  or  petitions filed for the acceptance of
applications with the commission for  inclusion  in  the  longshoremen's
register shall include:
  (a) the number of employees requested;
  (b) the category or categories of employees requested;
  (c)  a  detailed  statement  setting  forth the reasons for said joint
recommendation or petition;
  (d) in cases where a joint recommendation is made under this  section,
the collective bargaining representative of stevedores and other employ-
ers  of  longshoremen  in  the  port  of New York district and the labor
organization representing such longshoremen shall provide the allocation
of the number of persons to be sponsored by each employer of  longshore-
men in the port of New York district; and
  (e) any other information requested by the commission.
  2.  In  administering  the  provisions of this section, the commission
shall observe the following standards:
  (a) To encourage as far  as  practicable  the  regularization  of  the
employment of longshoremen;
  (b) To bring the number of eligible longshoremen into balance with the
demand  for longshoremen's services within the port of New York district
without reducing the number of eligible longshoremen below  that  neces-
sary  to  meet  the requirements of longshoremen in the port of New York
district;
  (c) To encourage the mobility and full  utilization  of  the  existing
work force  of longshoremen;
  (d)  To  protect  the job security of the existing work force of long-
shoremen by considering the wages and employment benefits of prospective
registrants;
  (e) To eliminate oppressive and evil  hiring  practices  injurious  to
waterfront  labor  and  waterborne  commerce  in  the  port  of New York
district, including, but not  limited  to,  those  oppressive  and  evil
hiring  practices  that  may result from either a surplus or shortage of
waterfront labor;
  (f) To consider the effect of technological change and automation  and
such  other economic data and facts as are relevant to a proper determi-
nation;
  (g) To protect the public interest of the port of New York district.
  In observing the foregoing standards and before determining to suspend
or accept applications  for inclusion in  the  longshoremen's  register,
the  commission  shall consult with and consider the views of, including
any statistical data or other factual information concerning the size of
the longshoremen's  register submitted by, carriers of freight by water,
stevedores, waterfront terminal owners and operators, any  labor  organ-
ization  representing  employees  registered  by the commission, and any
A. 7155--C                          3

other person whose  interests  may  be  affected  by  the  size  of  the
longshoremen's register.
  Any  joint  recommendation  or  petition  granted  hereunder  shall be
subject to such terms and conditions as the commission may prescribe.
  3. Any determination by the commission pursuant  to  this  section  to
suspend  or  accept  applications  for  inclusion  in the longshoremen's
register shall be made upon a record, shall not become  effective  until
five  days  after  notice thereof to the collective bargaining represen-
tative of stevedores and other employers of longshoremen in the port  of
New  York district and to the labor organization representing such long-
shoremen and/or the petitioning stevedore or  other  employer  of  long-
shoremen  in the port of New York district and shall be subject to judi-
cial review for being arbitrary, capricious, and an abuse of  discretion
in a proceeding jointly instituted by such representative and such labor
organization  and/or  by  the petitioning stevedore or other employer of
longshoremen in the port of New  York  district.  Such  judicial  review
proceeding  may  be instituted in either state in the manner provided by
the law of such state for review of the  final  decision  or  action  of
administrative  agencies  of  such  state,  provided, however, that such
proceeding shall be decided directly by the appellate  division  as  the
court of first instance (to which the proceeding shall be transferred by
order  of  transfer  by the supreme court in the state of New York or in
the state of New Jersey by notice  of  appeal  from    the  commission's
determination)  and  provided  further  that  notwithstanding  any other
provision of law in either state no court shall have power to  stay  the
commission's  determination  prior  to  final judicial decision for more
than fifteen days. In the event that the  court  enters  a  final  order
setting aside the determination by the commission to accept applications
for  inclusion  in  the longshoremen's register, the registration of any
longshoremen included in the longshoremen's register as a result of such
determination by the commission shall be cancelled.
  This section shall apply, notwithstanding any other provision of  this
act,  provided  however,  such  section  shall  not  in any way limit or
restrict the provisions of section five of  article  nine  of  this  act
empowering  the commission to register longshoremen on a temporary basis
to meet special or emergency needs or the provisions of section four  of
article  nine  of  this  act  relating to the immediate reinstatement of
persons removed from the longshoremen's  register  pursuant  to  article
nine  of this act. Nothing in this section shall be construed to modify,
limit or restrict in any way any of  the  rights  protected  by  article
fifteen of this act.
  4.  Upon  the  granting  of any joint recommendation or petition under
this section for the acceptance of applications  for  inclusion  in  the
longshoremen's  register,  the commission shall accept applications upon
written sponsorship from the prospective employer of longshoremen.   The
sponsoring  employer shall furnish the commission with the name, address
and such other identifying or category information as the commission may
prescribe for any person so sponsored.  The  sponsoring  employer  shall
certify  that  the  selection  of the persons so sponsored was made in a
fair and non-discriminatory basis in accordance with the requirements of
the laws of the United States and the states of New York and New  Jersey
dealing with equal employment opportunities.
  Notwithstanding  any of the foregoing, where the commission determines
to accept applications for inclusion in the longshoremen's  register  on
its own initiative, such acceptance shall be accomplished in such manner
deemed appropriate by the commission.
A. 7155--C                          4

  5. Notwithstanding any other provision of this act, the commission may
include  in  the longshoremen's register under such terms and conditions
as the commission may prescribe:
  (a)  a person issued registration on a temporary basis to meet special
or emergency needs who is still so registered by the commission;
  (b) a person defined as a longshoreman in subdivision six  of  section
five-a  of  this act who is employed by a stevedore defined in paragraph
(b) or (c) of subdivision one of said section five-a and  whose  employ-
ment  is  not  subject to the guaranteed annual income provisions of any
collective bargaining agreement relating to longshoremen;
  (c) no more than twenty persons issued registration limited to  acting
as  scalemen  pursuant  to  the provisions of chapter 953 of the laws of
1969 and chapter 64 of the laws of 1982 who are still so  registered  by
the  commission and who are no longer employed as scalemen on the effec-
tive date of this subdivision;
  (d) a person issued registration on a temporary basis as a checker  to
meet  special or emergency needs who applied for such registration prior
to January 15, 1986 and who is still so registered by the commission;
  (e) a person issued registration on a temporary basis as a checker  to
meet  special or emergency needs in accordance with a waterfront commis-
sion resolution of September 4, 1996 and who is still so  registered  by
the commission;
  (f)  a  person issued registration on a temporary basis as a container
equipment operator to meet special or emergency needs in accordance with
a waterfront commission resolution of September 4, 1996 and who is still
so registered by the commission; and
  (g) a person issued registration on a temporary basis as a  longshore-
man  to  meet special or emergency needs in accordance with a waterfront
commission resolution of September 4, 1996 and who is  still  so  regis-
tered by the commission.
  6.  The  commission  may include in the longshoremen's register, under
such terms and conditions  as  the  commission  may  prescribe,  persons
issued  registration on a temporary basis as a longshoreman or a checker
to meet special or emergency needs and who are still  so  registered  by
the commission upon the enactment of this amendment.]
  S  2.  If any part or provision of this act or the application thereof
to any person or circumstances be  adjudged  invalid  by  any  court  of
competent jurisdiction, such judgment shall be confined in its operation
to  the  part, provision or application directly involved in the contro-
versy in which such judgment shall have  been  rendered  and  shall  not
affect or impair the validity of the remainder of this act or the appli-
cation  thereof  to  other  persons  or circumstances and the two states
hereby declare that they would have entered into this act or the remain-
der thereof had the invalidity of such provisions or application thereof
been apparent.
  S 3. This act constitutes an agreement between the states of New  York
and  New  Jersey, supplementary to the waterfront commission compact and
amendatory thereof, and shall be liberally construed to  effectuate  the
purposes of that compact and the powers vested in the waterfront commis-
sion  hereby  shall be construed to be in aid of and supplemental to and
not in limitation of or in derogation of any of  the  powers  heretofore
conferred upon or delegated to the waterfront commission.
  S  4.  This  act  shall take effect upon the enactment into law by the
state of New Jersey of legislation having an identical effect with  this
act,  but  if  the  state  of New Jersey shall have already enacted such
legislation, then it shall take effect immediately;  and  provided  that
A. 7155--C                          5

the  waterfront  commission  shall  notify the legislative bill drafting
commission upon the occurrence  of  the  enactment  of  the  legislation
provided for in section one of this act in order that the commission may
maintain an accurate and timely effective data base of the official text
of  laws  of  the  state  of  New  York  in furtherance of effecting the
provisions of section 44 of the legislative law and section 70-b of  the
public officers law.