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BILL NUMBER:S4668B

TITLE OF BILL: An act to amend the waterfront commission act, in relation to empowering the waterfront commission to accept applications in the longshoremen's register

PURPOSE OR GENERAL IDEA OF BILL: The purpose of this legislation is to give employers at the Port of New York and New Jersey (PONYNJ) the authority to control the size of the longshore workforce.

SUMMARY OF SPECIFIC PROVISIONS: Section 1. Section 5-p of chapter 882 of the laws of 1953, as added by chapter 127 of the laws of 1966, the section heading as added by chapter 654 of the laws of 1982 and subdivision 4 as amended by chapter 322 of the laws of 1997 and as further amended by chapter 431 of the laws of 1999, constituting the waterfront commission act, is REPEALED and a new section 5-p is added constituting the waterfront commission act, is REPEALED and a new section is added which directs the Waterfront Commission of New York Harbor to accept applications upon the joint recommendation of Stevedores and other employers of longshoremen in the port of New York district.

Section 2. If any part or provision of this act is deemed invalid by any court of competent jurisdiction, that judgment shall only be applied to the specific provision found invalid and it shall not affect or impair the remainder of this act.

Section 3. This act constitutes an agreement between the states of New York and New Jersey, and shall be viewed as supplementary to the Water Commission Compact and adopted to accomplish the purposes of this compact.

Section 4. Effective Date.

JUSTIFICATION: Forty-three years ago New York and New Jersey supplemented their bistate Waterfront Commission Compact by enacting Section 5-p, the "controlled register statute." The statute empowers the Waterfront Commission of New York Harbor to control the size of the longshore workforce in the PONYNJ by periodically opening and closing the register of persons licensed to work on the docks. Employers in the PONYNJ are the only employers in the nation denied the ability to perform the basic management function of hiring new workers or replacing those lost through attrition and retirement.

Since the conditions that prompted this legislation no longer exist, Section 5-p as presently written has become an anachronism that impedes the expeditious hiring and training of additional dock workers needed to handle increases in cargo volume. Failure to have an adequate workforce skilled in the operation of modern cargo-handling equipment has hindered and will continue to hinder efficient Port operations and threatens the economic engine propelled

 by the Port. At risk is the Port's hard-won share of the increasing amount of international trade that can easily be diverted to other ports. It is expected that a major channel deepening and expansion project underway in the Panama Canal by 2014 will cause a major spike in the growth of the industry. This will present an opportunity and challenge to provide adequate manpower available to handle the anticipated increases in cargo volumes directed toward the PONYNJ. The reform of the current Waterfront Commission process resulting in prompt responsive action to critical labor demands will be a major consideration in the decision to use PONYNJ as a port of call. The effect of this loss on the economy of New York would be staggering.

This legislation gives employers at the PONYNJ the authority to control the size of the longshore workforce without the artificial constraints of an administrative agency ill-suited for making marketdriven commercial decisions. However, it retains the Commission's traditional role in the longshore licensing process. Under this legislation, hiring in the longshore industry would conform to hiring practices in other industries employing licensed personnel where private industry determines the number of new employees needed and selects the individuals to fill these positions. These individuals would still be subject to review by the Commission to insure the good character and integrity of the workers selected. This change does not interfere with the Waterfront Commission's police powers or ability to conduct state and federal criminal history background checks.

PRIOR LEGISLATIVE HISTORY: 2010: A.5274 Farrell 2010: S.5039 HASSELL-THOMPSON

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: 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 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 the 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.

Text

STATE OF NEW YORK
________________________________________________________________________

4668--B

2011-2012 Regular Sessions

IN SENATE

April 14, 2011
___________

Introduced  by Sens. LANZA, HASSELL-THOMPSON, ADAMS, ALESI, DILAN, GOLD-
  EN, LARKIN, MARTINS, SAVINO -- read twice  and  ordered  printed,  and
  when printed to be committed to the Committee on Corporations, Author-
  ities  and  Commissions -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee --  recommitted
  to  the  Committee  on  Corporations,  Authorities  and Commissions in
  accordance with Senate Rule 6, sec. 8 --  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-
sion]:  (a) [on its own initiative or (b)] upon the joint recommendation

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10519-11-2
S. 4668--B                          2

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
other  person  whose  interests  may  be  affected  by  the  size of the
longshoremen's register.
S. 4668--B                          3

  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.
S. 4668--B                          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
S. 4668--B                          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.