CHAPTER I
WATERFRONT COMMISSION OF NEW YORK HARBOR
RULES AND REGULATIONS
EXPLANATORY NOTE
The following rules and regulations have been promulgated by
the Waterfront Commission of New York Harbor, an instrumentality of the States
of New York and New Jersey, pursuant to the authority of the Waterfront
Commission Act, Part I, Article IV, Section 7 [New York L. 1953, ch. 882; New
Jersey L. 1953, ch. 202], and are on file with the Secretary of State, State of
New York, Albany, New York, and the Secretary of State, State of New Jersey,
Trenton, New Jersey.
These rules and regulations are produced herein in the form in
which they have been published by the Department of State of the State of New
York. Accordingly, the citations on the tops of the pages (i.e. "Title 21
Miscellaneous; Chapter I Waterfront Commission") refer to the publication of
these rules and regulations in Title 21 of the Official Compilation of Codes,
Rules and Regulations of the State of New York (21 Miscellaneous (A)).
Publication of the Waterfront Commission rules and regulations
in the New Jersey Administrative Code faithfully reproduces the chapter
codification and text as published in Title 21 of the New York code, with the
exception of the pagination and supplement date notation, at the bottom of each
page, which conform to the style standards of the New Jersey Administrative
Code.
These rules and regulations were amended, effective upon filing
with the Secretary of State of New York and the Secretary of State of New
Jersey, on July 2, 1993. See: 25 N.J.R. 3244(c) (July 19, 1993).
| INDEX |
Section |
| APPLICATION AND REVOCATIONS PROCEEDINGS |
6.1 et
seq. |
| Adjournments |
6.7 |
| Administrative judge |
| generally |
6.5 |
| oral argument |
6.12 |
| petitions to reopen hearing |
6.15 |
| powers |
6.5, 6.9 |
| reports and exceptions thereto |
6.13 |
| subpoenas |
6.9, 6.10 |
| Affidavits |
6.11 |
| Appearance |
6.4 |
| Attorney, representation by |
6.4 |
| Briefs |
6.12 |
| Cross-examination |
6.10 |
| Denial, application after |
1.10 |
| Dismissal without prejudice |
1.16 |
| Final determination |
6.14 |
| Hearing |
| administering of oaths |
6.9 |
| affidavits |
6.11 |
| conduct of |
6.9 |
| cross-examination |
6.10 |
| evidence |
6.9, 6.11 |
| petition to reopen |
6.15 |
| record of hearing |
6.6 |
| subpoenas |
6.9, 6.10 |
| sworn statements |
6.11 |
| testimony |
6.10 |
| to be public |
6.6 |
| Hearing officer--see Administrative judge, this
topic |
| Institution of proceedings |
6.1 |
| Interrogatories |
6.11 |
| Notice of hearing |
6.2 |
| amendment of |
6.8 |
| service of |
6.3 |
| Opportunity to be heard |
6.1, 6.10 |
| Oral argument |
6.12 |
| Orders of Commission |
6.16 |
| service of |
6.3 |
| Personal appearance |
6.4 |
| Petitions |
| for leave to reapply |
6.20 |
| for probationary registration or
license |
1.21 |
| for reconsideration |
6.18 |
| for rehearing |
6.17 |
| for restoration |
6.19 |
| service of |
1.7 |
| to remove ineligibility |
1.18 |
| to reopen hearing |
6.15 |
| withdrawal |
1.8 |
| Subpoenas |
6.9, 6.10 |
| Transcript, purchase of |
6.6 |
| APPLICATIONS--see LICENSES AND REGISTRATIONS |
| ARREST, NOTIFICATION AFTER |
1.11 |
| ASSESSMENTS |
9.1 et seq. |
| Assessment returns, filing |
9.2 |
| Computation |
9.3 |
| Deficiency, notice |
9.6 |
| Extension of time for filing return or paying
assessment |
9.4 |
| Failure to file return |
9.5 |
| Gross payroll payments |
9.1 |
| computations |
9.3 |
| Incorrect return |
9.5 |
| Partial assessment of corporate officers licensed as
pier |
9.3 |
| superintendents and hiring agent |
| Payment of assessments |
9.2 |
| Penalties and interest |
9.5 |
| Petition for hearing on deficiency |
9.6 |
| ATTORNEY--see COUNSEL |
| CHANGE OF ADDRESS |
1.9 |
| CHECKERS--see LICENSES AND REGISTRATIONS |
| CONFIDENTIAL RECORDS |
1.4 |
| COUNSEL |
| At Commission interview investigation |
1.20 |
| Representation by, at hearings |
6.4 |
| DECASUALIZATION |
8.1 et seq. |
| Application at center for employment |
8.1 |
| Audit of availability for work |
8.2 |
| Failure to work or be available for work |
8.1 |
| Notice before removal |
8.3 |
| Reinstatement, requirements |
8.4 |
| DEFINITIONS, GENERAL |
1.1 |
| EMERGENCY USE OF PERSONS NOT REGISTERED |
4.2,
4.6 |
| FEES |
| Requests for information |
1.23 |
| Subpoena |
1.5 |
| Transcript of hearing |
6.6 |
| HIRING AGENTS--see LICENSES AND REGISTRATIONS |
| HIRING REGULATIONS FOR REGISTRANTS |
7.1 et
seq. |
| Absenteeism of employees |
7.23 |
| Additional gangs |
7.17 |
| Additions to regular lists |
7.7 |
| Availibility for employment |
| regular working days |
7.20 |
| weekend and holidays |
7.22 |
| other weekday |
7.21 |
| Availibility of documents, tapes, disks and other
data |
7.41 |
| Construction |
7.1 |
| Corrections and restorations to lists |
7.11 |
| Decasualization see DECASUALIZATION |
| Definitions |
7.2 |
| area |
7.2 |
| borough |
7.2 |
| extra gang |
7.2 |
| gang |
7.2 |
| New pier |
7.2 |
| re-activated pier |
7.2 |
| regular and regular-extra gang followers |
7.2 |
| regular employees |
7.2 |
| regular-extra gang |
7.2 |
| regular gang |
7.2 |
| regular work day |
7.2 |
| section |
7.2 |
| supervisory employee |
7.2 |
| telecommunication systems controller |
7.2 |
| voluntary gang |
7.2 |
| workday |
7.2 |
| Employee listings |
7.5 et seq. |
| priorities--see Priorities, this topic |
| Employees and employers subject to
regulations |
7.3 |
| Employment opportunities, reporting |
7.13 |
| Extension of employment |
7.18 |
| Gangs |
7.6 |
| new gangs |
7.36 |
| priorities--see Priorities, this topic |
| recall |
7.16 |
| removal from register |
7.10 |
| voluntary--see Voluntary gangs, this topic |
| Hiring procedures |
7.12 et seq. |
| Lists--see Regular lists, this topic |
| Longshoremen's register |
7.4 |
| Maintaining records |
7.41 |
| Monitoring, telephone calls |
7.42 |
| New piers--see Reactivated and new piers, this topic |
| Obtaining employment information |
7.20 |
| Ordering from regular lists |
7.14 |
| cancellation |
7.14(g) |
| time for |
7.14(a), |
| (b), (c) |
| time for, day following holiday |
7.14(e) |
| time for, Saturday, Sunday, Monday |
7.14(d) |
| Ordering of additional gangs |
7.17 |
| time for |
7.17(a), |
| (b), (c) |
| Ordering through THEIC |
7.38 |
| Pier guard, pier security officers |
5.19 et
seq. |
| Pier superintendent and hiring agent |
2.9 |
| Prevalidation |
7.14 |
| Prior day ordering |
| registrants prevalidated |
7.14 |
| registrants not prevalidated |
7.19 |
| Priorities |
7.25 et seq. |
| construction |
7.29 |
| ordering by special agreement |
7.39 |
| ordering employees through THEIC |
7.38 |
| pier guards |
5.33 et seq. |
| regular employee lists for new piers |
7.32 |
| regular employee lists for reactivated
piers |
7.30 |
| regular gang lists for new piers |
7.33 |
| regular gang lists for reactivated
piers |
7.31 |
| replacements and additions to checker and clerk
lists |
7.35 |
| replacements and additions to regular employee
lists |
7.34 |
| replacements in gangs and the formation of new
gangs |
7.36 |
| replacements in voluntary gangs |
7.37 |
| sections |
7.40 |
| Prohibited conduct |
7.43 et seq. |
| damaging property |
7.45 |
| defacing property |
7.45 |
| distribution |
7.45 |
| disturbance |
7.45 |
| gambling |
7.45 |
| loitering |
7.45 |
| posting signs |
7.45 |
| selection or identification of hiring agents or
pier |
2.9 |
| Superintendents |
| selling merchandise |
7.45 |
| solicitation of contributions |
7.45 |
| solicitation of employment |
7.43 |
| soliciting |
7.45 |
| unauthorized conduct in employment
information |
7.45 |
| center |
| unauthorized hiring and solicitation of
employment |
7.43 |
| unauthorized participation in hiring |
7.44 |
| Quick registration |
7.15 |
| Re-activated and new piers |
7.25 et seq. |
| lists, prior publication of |
7.26 |
| notice for establishing regular lists |
7.25 |
| prior lists, |
CHAPTER I
Waterfront Commission of New York Harbor
| PART |
| 1 |
General
Provisions. |
| 2 |
Pier Superintendents and
Hiring Agents. |
| 3 |
Stevedores. |
| 4 |
Longshoremen, Checkers and
Telecommunication System Controllers. |
| 5 |
Port Watchmen. |
| 6 |
Application and Revocation
Proceedings. |
| 7 |
Hiring Regulations for
Registrants. |
| 8 |
Regularization of Employment
of Longshoremen and Checkers |
| (Decasualization). |
| 9 |
Assessments. |
| 10 |
Public Loading. |
PART 1
GENERAL PROVISIONS
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
| Section |
| 1.1 |
Definitions in Waterfront Commission Act;
gender |
| 1.2 |
Suspension of regulations |
| 1.3 |
Impeding purposes of Act |
| 1.4 |
Subpoena of commission records |
| 1.5 |
Subpoenas |
| 1.6 |
Application forms |
| 1.7 |
Notices and petitions to and from
commission |
| 1.8 |
Withdrawal of applications and petitions and
surrender of licenses and registrations |
| 1.9 |
Notification of change of address |
| 1.1 |
Application after denial, withdrawal,
surrender or revocation |
| 1.11 |
Notification of arrest |
| 1.12 |
Replacement of lost license, permit or
registration card |
| 1.13 |
Licenses, registrations and permits not
transferable |
| 1.14 |
Unauthorized retention of licenses,
registrations and other instruments |
| 1.15 |
Alteration and transfer of instruments
issued by commission prohibited |
| 1.16 |
Dismissal of application without
prejudice |
| 1.17 |
Temporary suspension of temporary permits or
registrations pending hearing |
| 1.18 |
Petition for an order to remove an
ineligibility for a license or registration by reason of criminal
conviction |
| 1.19 |
Temporary permit or registration revoked by
denial of application |
| 1.20 |
Counsel in commission interview or
investigation |
| 1.21 |
Probationary registrations and licenses |
| 1.22 |
Disposal of unclaimed personal property
recovered by the commission |
| 1.23 |
Access to records |
| 1.24 |
Service of legal papers upon the
commission |
Section 1.1 Definitions in Waterfront Commission Act;
gender.
(a) For the purposes
of these Regulations, unless the context clearly requires otherwise, the
definitions contained in the Waterfront Commission Act shall be used.
Waterfront Commission Act (hereinafter referred to as the Act) shall mean
chapter 882 of New York Laws of 1953 and chapter 202 of New Jersey Laws of
1953, both as amended and supplemented, and shall include the Waterfront
Commission Compact (part I of the Act) as consented to by chapter 407 of Public
Law 252 of the 83rd Congress (August 12, 1953), and all concurrent legislation
enacted by the States of New York and New Jersey pursuant to or in furtherance
of the Act.
(b) All references to
the masculine gender in these Regulations shall be deemed to include the
feminine gender.
1.2 Suspension of regulations.
In the event of public emergency occasioned by, but not limited
to, acts of God, acts of war, acts of violence or breaches of the peace, the
commission may by resolution revoke or suspend, in whole or in part, any of
these regulations when in its opinion the purposes of the Act will thereby be
furthered or effectuated.
1.3 Impeding purposes of Act
In the event that any regulation adopted by the commission has
been or is being utilized by any person to impede, obstruct or frustrate the
purposes of the Act, the commission may by resolution revoke or suspend, in
whole or in part, the privileges accorded to such person by such regulation
when in its opinion the purposes of the Act will thereby be furthered or
effectuated. Nothing contained in these Regulations shall, however, abridge any
statutory or constitutional right of such person.
1.4 Subpoena of commission records.
A member, officer or employee who is served with a subpoena
requiring the disclosure of information or the production of documents not
available for public inspection pursuant to section 1.23 of this Part, shall,
unless otherwise directed by the commission, appear as directed by the subpoena
and, unless otherwise authorized by the commission, shall respectfully decline
to discuss the information or produce the documents called for, basing the
refusal upon this section. Any member, officer or employee who is served with
such subpoena shall promptly advise the commission of the service of such
subpoena, the nature of the information or documents sought, and any
circumstances which may bear upon the desirability of making available such
information or documents. Nothing herein shall prohibit the commission from
authorizing the disclosure or exchange of information with any public official,
agency or other person upon a finding that the purposes of the Act will be
effectuated thereby.
Historical Note
Sec. amd. filed Feb. 17, 1978 eff. Feb. 17, 1978.
1.5 Subpoenas.
(a) A subpoena, including a subpoena
duces tecum, may be issued by any officer, agent or employee
who has been duly authorized by resolution of the commission to issue such
subpoenas. A subpoena shall state the section of the Act pursuant to which it
is issued.
(b)
A subpoena
shall be personally served. Personal service shall consist of either
placing the subpoena in the hand of the person named therein or of touching his
person with the subpoena and informing him that it is a subpoena of the
Waterfront Commission of New York Harbor. A subpoena may be returnable on any
day except Sunday at any time between 8:00 a.m. and 9:00 p.m.
(c)
Tender of witness fees is not
required. A person, other than an applicant or a respondent or an
officer, director or shareholder of an applicant or respondent, subpoenaed by
the commission to appear at any interview, hearing or other proceeding,
conducted by the commission is entitled to $ 40 per day for each day's actual
attendance if he appears pursuant to a subpoena or a subpoena
duces
tecum. If a person, other than an applicant or a respondent or an
officer, director or shareholder of an applicant or respondent, so subpoenaed
resides more than three miles from the place of attendance, he shall also be
entitled to reimbursement for each mile going from the place of residence to
the place of attendance at the prevailing mileage reimbursement rate as set by
the Internal Revenue Service. Such fee shall be payable by the secretary of the
Commission upon demand by the person subpoenaed after actual attendance, upon
certification thereof by an officer, agent or employee of the commission.
Historical Note
Sec. amd. filed July 2, 1993 eff. July 2, 1993
Sec. amd. filed Nov. 26, 2008 eff. Nov. 26,
2008
1.6 Application forms.
An application for a license or registration shall be submitted
on a form to be provided by the commission.
1.7 Notices and petitions to and from commission.
(a) Unless otherwise provided by
regulation, all notices and petitions to the commission shall be given in
writing and delivered by first class mail or by hand, addressed to the
Waterfront Commission of New York Harbor, at its main administrative offices.
If delivered by mail, notice shall be deemed given only when actually
received.
(b) All notices and
communications from the commission, other than those specified in section 6.3,
infra, shall be duly served if enclosed in a properly post paid wrapper
addressed to the person to be notified or communicated with at the address last
given by him in writing to the commission and deposited, as ordinary mail, in a
post office, post office box, or mail chute maintained by the United States
government, or if such notice or communication addressed to such person is
delivered to such address by telegram or by registered or certified mail or by
an employee or agent of the commission. Such service shall be deemed as having
been made in the regular course of the business of the commission, without any
certification of such service by an employee or agent of the commission. For
the purpose of calculating the time of notice, service shall be considered
effected upon the date of delivery to such address; provided that, where
service is by ordinary mail, service shall be considered effective the third
day after the mailing.
1.8 Withdrawal of applications and petitions and
surrender of licenses and registrations.
Applications or petitions submitted to the commission may be
withdrawn only with the permission of the commission. Licenses or registrations
may be surrendered only with the permission of the commission. Such permission
may be granted unconditionally or "with prejudice". The pendency of such
application or petition to withdraw or to surrender shall not prevent the
ordering of a hearing or the continuance of a hearing under sections 1 or 3 of
article XI of the Act, as appropriate.
1.9 Notification of change of address.
Any applicant, prospective licensee, registrant, licensee, or
petitioner who changes his name or his residence address shall immediately
notify the commission in writing of such change.
1.10 Application after denial, withdrawal, surrender or
revocation.
After an application or petition has been denied, or withdrawn
with prejudice, or a license or registration has been revoked or surrendered
with prejudice, no further application therefor may be submitted except upon
leave of the commission for good reason shown.
1.11 Notification of arrest.
Any person licensed or registered by the commission or any
person who, within the meaning of section 3.4 infra, is required to execute a
personal character information form in connection with a stevedore's license
application, who has been charged with or arrested for any crime or offense
under the penal law of any State, the District of Columbia, the United States,
any territory or commonwealth thereof or any foreign country, other than a
motor vehicle or traffic offense, shall notify the commission within 20 days of
his knowledge of such charge or of the arrest.
1.12 Replacement of lost license, permit or registration
card.
A licensee, registrant or permittee who has lost his license,
registration card or permit, after identifying himself to the satisfaction of
the commission, shall be issued a temporary license, registration card or
permit, valid for a period of not more than 30 days. He shall also submit a
sworn application for replacement of his lost license, registration card or
permit and, upon his payment of a replacement charge of fifteen dollars, the
commission shall issue to him a new license, registration card or
permit.
Historical Note
Sec. amd. filed July 7, 1972 eff. July 7, 1972
New sec. submitted.
Sec. amd. filed October 23, 2001 eff. October 23, 2001.
1.13 Licenses, registrations and permits not
transferable.
A license, registration card, or permit issued by the
commission shall not be transferable at any time for any purpose.
1.14 Unauthorized retention of licenses, registrations
and other instruments.
No person shall retain possession of any license, permit,
registration card, badge or other means of identification or instrument issued
by the commission after his license, permit or registration has expired, been
terminated, revoked or suspended for a period of more than thirty days.
1.15 Alteration and transfer of instruments issued by
commission prohibited.
Any and all licenses, badges or other evidence of a license or
registration issued by the commission shall remain its property and shall be
promptly returned to the commission in accordance with these Regulations. No
person shall forge, counterfeit, alter, erase, obliterate or transfer any card,
form, badge, record, means of identification or other instrument issued by the
commission. No person shall transfer any card, form, badge, record, means of
identification or other instrument, or have in his possession any transferred,
forged, counterfeited, altered, erased or obliterated card, form, badge,
record, means of identification or other instrument, whether issued by the
commission or otherwise, with intent to defraud or deceive any person licensed
by the commission in order to gain employment or priority of employment for
himself or another, or with intent to defraud or deceive the commission in any
manner.
1.16 Dismissal of application without prejudice.
Where an applicant for license or registration or a prospective
licensee fails to respond to a communication or notice forwarded in accordance
with the provisions of these Regulations requesting him to provide additional
information or to appear for an interview in connection with the application,
or, in the case of an applicant for a license as a port watchman, to appear for
a physical examination as required by section 5.5, infra, or, in the case of an
applicant for a license as a port watchman, to satisfactorily complete a course
of training for port watchmen as prescribed by section 5.10, infra, the
application may be dismissed by the commission without prejudice. Such
dismissal shall forthwith cancel and annul any temporary permit or temporary
registration unless otherwise directed by the commission.
1.17 Temporary suspension of temporary permits or
registrations pending hearing.
Any temporary permit or temporary registration issued by the
commission pending final action upon an application for a license or
registration may, without hearing, be temporarily suspended by the commission
pending final determination of a hearing to determine whether to grant or deny
such application or to revoke, cancel or suspend such temporary permit or
registration if, in the opinion of the commission:
(a) the applicant or prospective licensee has
refused to complete the application, or to appear for or complete an interview,
or a physical examination as required by section 5.5, infra, or otherwise to
provide additional facts or evidence requested by the commission to enable it
to ascertain whether the application should be granted; or
(b) the temporary permit or temporary
registration has been obtained by fraud; or
(c) the continuance of the temporary permit
or temporary registration is inimicable to the public peace and safety.
1.18 Petition for an order to remove an ineligibility
for a license or registration by reason of criminal conviction.
A petition for an order to remove an ineligibility for a
license or registration by reason of a criminal conviction pursuant to section
3(b) of article V, section 3(e) of article VI, section 5-j of Part II, and
section 5-n (subd. 3, par.) of Part II of the Act, shall be made on forms
furnished by the commission. Such petition may be submitted with the
application for a license or registration. The petitioner may submit evidence
of a pardon for the disqualifying crime in the form of the original or a
photocopy of such pardon. Any petitioner who desires to offer evidence to
satisfy the commission that he has conducted himself for a period of not less
than five years in such manner as to warrant the granting of a license or
registration shall attach to his application the original or a photocopy of any
certificate of good conduct, official statement, or other form of relief from
disabilities arising from the conviction, which may be issued by a court of
competent jurisdiction, a board of parole, or similar authority, and any other
evidence, such as letters of character reference, as he may deem relevant to
the granting of a license or registration. The commission may require
additional evidence, to be submitted upon forms as may be prescribed by the
commission, as it deems necessary.
1.19 Temporary permit or registration revoked by denial
of application.
An order of the commission denying an application for a license
or registration shall, unless otherwise stated, forthwith revoke and annul any
temporary permit or temporary registration issued pending final action on the
application for a license or registration.
1.20 Counsel in commission interview or
investigation.
In connection with any investigation conducted by the
commission, a person interviewed or questioned under oath shall have the right
to be accompanied and represented by counsel, except that he shall not be so
accompanied or represented by counsel who also represents a person who is or
who may become the subject of the investigation, unless the commission upon
application so authorizes.
1.21 Probationary registrations and licenses.
(a) Any person whose application for
a license has been denied or whose license has been revoked, or any person
whose application for registration has been denied or whose registration has
been revoked and who has never before submitted an application or petition to
the commission seeking inclusion in the register after the final order of
denial or revocation of registration by the commission, may, upon application
to the commission, be granted leave to apply for a probationary registration or
license. Any such person whose application for registration has been denied or
whose registration has been revoked must file his application for a
probationary registration within one year of the commission's final order of
denial or revocation. (For the purposes of this section, petitions for
rehearing or reconsideration made substantially contemporaneously with the
commission's order of denial or revocation of registration shall not be
considered as constituting a prior application or petition to the commission
which seeks inclusion in the register.) Any person who is ineligible to apply
for probationary registration pursuant to the foregoing provisions of this
section may apply to the commission for the removal of his ineligibility so
that such person would not be disqualified, because of his previous denial or
revocation, from applying for registration upon the next occasion that the
commission opens the register pursuant to section 5-p of the Act.
(b)
1. Any
person who has been granted such leave to apply for a probationary registration
or license shall provide all the information required in the application for
such status and shall complete said application pursuant to the instructions
therein.
2. Where any such
applicant is recommended for probationary status by another person who is
willing to act as his sponsor, such sponsor shall certify in the aforesaid
application that he desires to sponsor the applicant, that he agrees to
undertake the supervision of the applicant during such probationary period and
that he shall use his best efforts to insure the applicant's compliance with
the Waterfront Commission Act, the terms and conditions of the probation and
all other laws.
(c)
(1) Upon receipt of a completed and properly
executed application, the staff member designated by the commission to
supervise the probationary case shall, if appropriate, forward said application
to the division of police of the commission for a preliminary report on said
applicant.
2. After receipt of the preliminary
report, the said staff supervisor shall determine whether or not a permit or
registration on a probationary status should be granted or denied, and shall
submit his recommendation with respect thereto to the commission. If the staff
supervisor recommends that a probationary status be granted, he shall also
recommend the terms and conditions which he deems appropriate to impose on the
probationer, which may include, among others, the following:
i. That the waterfront employment of the
probationer shall be confined to a designated area of the waterfront.
ii. That the business associations of the
probationer shall not include certain individuals, associations and/or
groups.
iii. That the personal
associations of the probationer shall not include certain individuals or groups
of individuals.
iv. That the
probationer and/or his sponsor shall periodically report to the staff
supervisor who shall review the conduct and activity of the
probationer.
(d)
1. If,
in the commission's opinion, granting of probation is warranted, the commission
shall grant such probation for a period not exceeding six months upon such
appropriate terms and conditions.
2. The staff supervisor shall inform the
applicant and the applicant's sponsor, if any, of the commission's action and
of the terms and conditions imposed upon the applicant during the period of
probationary status. To grant probationary status, the order denying the
probationer's application or revoking his registration or license shall then be
amended so as not to be effective until further order of the
commission.
3. If the prospective
probationer accepts the terms and conditions imposed, the probationer shall
report personally at a time designated to the staff supervisor. In addition to
such periodic reports by the applicant, the sponsor of the applicant, if any,
shall make periodic reports at times designated to the staff
supervisor.
(e) If
during the six month period of probation the commission does not receive any
information indicating that the probationer has violated any of the provisions
of the Act or any of the terms and conditions imposed or any other laws, the
staff supervisor assigned to review the conduct of the probationer shall,
immediately prior to the expiration of the six month probationary period,
determine and recommend to the commission whether to terminate the probationary
status or whether to continue it for an additional six month period. The same
procedure shall be followed upon the expiration of any additional probationary
periods.
(f) If the staff
supervisor shall receive information indicating that the terms and conditions
of probation have been violated by the probationer, or that the probationer has
violated any of the provisions of the Waterfront Commission Act or any other
laws, the staff supervisor shall, upon receipt of appropriate evidence of such
violation, recommend that a hearing be held to determine whether the
probationary terms and conditions, or whether any of the provisions of the
Waterfront Commission Act or any other laws, have been violated by the
probationer.
(g) If the staff
supervisor's recommendation for a hearing is approved, he shall give the
probationer sufficient notice of the time and place of said hearing and of the
issues to be considered at such hearing. The hearing shall be conducted by a
person designated by the commission, who shall have the authority and powers of
an administrative judge under section 6.9. The probationer shall have an
opportunity to appear at such hearing and may be assisted or represented by
counsel or any qualified person, including the probationer's sponsor, and shall
be so advised in the notice of hearing. At the hearing, the probationer may
testify in his own behalf and may present witnesses in his own behalf. If the
alleged violations to be heard are of such a nature that the commission is of
the opinion that the continuance of the probationary status pending the outcome
of the hearing is inimical to the public peace or safety, the commission may
order the immediate suspension of the probationary registration or license
pending final determination of the hearing.
(h) After the conclusion of the hearing, the
person conducting the hearing shall make such findings as he deems appropriate
upon the issues contained in the notice of hearing, and shall submit such
findings to the commission, together with his recommendation for revocation or
continuance of the probationary status upon any additional terms or conditions
as he may deem appropriate.
(i) The
commission shall determine, upon consideration of the findings and
recommendations and any other pertinent information that may be submitted or
received, whether the probationary status shall be revoked or continued, and,
if continued, whether any additional terms and conditions of probation shall be
imposed.
Historical Note
Sec. amd. filed Jan. 12, 1967; eff. Jan. 18, 1967.
Substituted new (a).
1.22 Disposal of unclaimed personal property recovered
by the commission.
The commission may authorize the disposal by sale to the
highest bidder or by charitable gift of any unclaimed personal property
recovered by personnel of the commission in the course of their duties which,
after a diligent investigation to ascertain the lawful owner thereof, shall
have remained in the custody of the commission for a period of not less than
three months. The commission shall cause any such personal property determined
to be contraband or otherwise illegal to be destroyed. A record of the disposal
of any such personal property shall be kept by the commission.
1.23 Access to records.
(a) The records of the commission shall be
made available for public inspection and copying, except that access may be
denied as to records or portions thereof which:
(1) are specifically exempted from disclosure
by State or Federal statute;
(2) if
disclosed, would constitute an unwarranted invasion of personal
privacy;
(3) if disclosed, would
impair present or imminent contract awards or collective bargaining
negotiations;
(4) are trade secrets
or are submitted to the commission by a commercial enterprise or derived from
information obtained from a commercial enterprise or are maintained for the
regulation, supervision or licensing of commercial enterprise which, if
disclosed, would cause substantial injury to the competitive position of the
enterprise;
(5) are compiled for
law enforcement or official investigatory purposes when their disclosure would
interfere with law enforcement investigations or judicial, licensing,
registration or disciplinary proceedings or hearings, or deprive a person of a
right to a fair trial or hearing or impartial adjudication, or identify a
confidential source or disclose confidential information relating to a
criminal, licensing, registration or disciplinary investigation, or reveal
criminal investigative techniques or procedures, except routine techniques and
procedures;
(6) if disclosed, would
endanger the life or safety of any person;
(7) are interagency or intraagency materials
other than statistical or factual tabulations of data, instructions to the
staff of the commission that affect the public, or final commission policy or
determinations; or
(8) are
examination questions or answers which are requested prior to the final
administration of such questions; or
(9) are computer access codes.
(b) Requests for inspection or
copying of the records of the commission shall be made to the secretary of the
commission upon a form prescribed by the commission and shall contain
sufficient information to identify the particular record sought. Such requests
shall be made either:
(1) in person during
regular business hours at the commission's main offices at 39 Broadway, fourth
Floor, New York, NY 10006; or
(2)
by mailing such request, postage prepaid, to Secretary, Waterfront Commission
of New York Harbor, at the address in paragraph (1) of this
subdivision.
(c) Upon
receipt of a request, the secretary shall promptly determine whether or not the
records requested can be made available and will notify the person making the
request of such determination. If the request is granted, such person shall
also be notified where and when the records will be made available. The
commission will provide an opportunity for inspection and copying of the
records at a time and place it deems feasible.
(d) The records may be inspected only under
the supervision of the secretary of the commission, or such other officer or
employee as may be designated by the secretary, in the commission's office
during regular business hours or at such other times or places as the secretary
deems convenient.
(e) Each request
must be responded to within 10 business days of the receipt thereof, with
reasons being given for denial of access or copying or a statement of the time
and place when the record request will be made available. Any person denied
access to a record of the commission by the secretary of the commission may,
within 30 days, file an appeal in writing from such denial with the
commission's general counsel. Such appeal may be accompanied by a memorandum in
support thereof setting forth the reasons why the appellant is entitled to
access to the record requested. Such appeals shall be decided by the general
counsel. If the appeal is denied, the reasons therefor shall be explained fully
in writing within seven business days of the date on which such appeal is
received by the general counsel.
(f) Documents which are to be copied,
including stenotype reporter transcriptions, will be copied by the commission,
if practicable, and the person requesting a copy will be charged a fee of $
1.00 for each page not exceeding 8 1/2 x 14 inches. If it is not practicable
for the commission to copy such documents, they will be copied commercially and
the person requesting the copy will be charged a fee equal to the commission's
cost for such commercial reproduction. A fee of $ 5.00 will be charged for
certification by the secretary of the commission as to the authenticity of any
document, or that a record of which the commission is legal custodian cannot be
found. In the event a search for records requested requires more than one-half
hour, a search fee will be charged at the rate of not less than $ 7.25 per hour
or any part thereof, per person assigned to such search. All such fees shall be
paid by the person making the request in cash, certified check or bank
cashier's check, in advance or at the time of the delivery of any record for
inspection or copies of any records or certificate referred to in this
subdivision.
Historical Note
Sec. amd. filed Mar. 10, 1975; repealed, new filed Feb. 17,
1978 eff. Feb. 17, 1978.
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
1.24 Service of legal papers upon the commission.
All legal process and papers shall be served upon the
commission in New York at 39 Broadway, Fourth Floor, New York, NY 10006, and in
New Jersey at the commission's employment information center, 189 Corbin
Street, Port Newark, NJ 07114.
Historical Note
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
PART 2
PIER SUPERINTENDENTS AND HIRING AGENTS
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
| Section |
| 2.1 |
Pier superintendents and hiring agents
required to be licensed; |
| employment of unlicensed pier superintendents and hiring
agents |
| prohibited |
| 2.2 |
Persons required to be licensed as pier
superintendents and hiring |
| agents |
| 2.3 |
Prospective employer to submit
application |
| 2.4 |
Application to be accompanied by photograph
and fingerprints |
| 2.5 |
Additional information to be furnished when
required |
| 2.6 |
Licensing for more than one employer at
single pier; employment by |
| one employer at several piers |
| 2.7 |
Issuance and delivery of license |
| 2.8 |
Identification to be carried by licensee;
identification to be |
| returned to commission when required |
| 2.9 |
Participation by any person other than
employer in identification or |
| selection of pier superintendent, hiring agent or other
person |
| authorized to participate in hiring prohibited; employer
prohibited |
| from solicitation |
| 2.10 |
Notification by employer of termination of
licensee's employment and |
| return of evidence of license |
| 2.11 |
Reports to be furnished by pier
superintendents |
| 2.12 |
Protection of cargo |
| 2.13 |
Authorization to make criminal
complaint |
| 2.14 |
Record of checkers assigned to motor
vehicles |
Section 2.1 Pier superintendents and hiring agents
required to be licensed; employment of unlicensed pier superintendents and
hiring agents prohibited.
No person shall act as a pier superintendent or as a hiring
agent within the Port of New York District without first having obtained from
the commission a license to act as such pier superintendent or hiring agent, as
the case may be, and no person shall employ or engage another person to act as
a pier superintendent or hiring agent who is not so licensed.
2.2 Persons required to be licensed as pier
superintendents and hiring agents.
(a) A person will be considered a "pier
superintendent" whenever:
1. his work is
performed at a pier or other waterfront terminal and includes the supervision,
directly or indirectly, of the work of registrants employed by his employer or
any other person in the course of supervision of the pier or terminal or its
cargo handling operations; and
2.
he is employed by a carrier of freight by water or a stevedore, either directly
or indirectly through a subsidiary or parent corporation of, or a contractor
with, either of them.
(b) A person will be considered a "hiring
agent" whenever he, on behalf of a carrier or freight by water or a stevedore
or on behalf of any other person, shall select any registrant for employment.
The term "select any registrant for employment" shall include selection of a
person for the commencement or continuation of employment as a registrant, or
the denial or termination of employment as a registrant.
2.3 Prospective employer to submit application.
A license to act as a pier superintendent or hiring agent will
be issued only upon a verified application submitted by the prospective
employer.
2.4 Application to be accompanied by photograph and
fingerprints.
For the purpose of assisting the commission to ascertain the
character, integrity and identity of the prospective pier superintendent or
hiring agent, each application shall be accompanied by a photograph and the
authenticated fingerprints of the prospective licensee on an identification
record form furnished by the commission.
2.5 Additional information to be furnished when
required.
In addition to the information required by the application
form, the commission may require the applicant or the prospective licensee or
both to produce such further facts and evidence as may be necessary to
determine whether or not the prospective licensee possesses the qualifications
and meets the requirements necessary to obtain a license.
2.6 Licensing for more than one employer at single pier;
employment by one employer at several piers.
No person will be licensed as a pier superintendent or hiring
agent for more than one employer, except (a) at a single pier or waterfront
terminal or (b) where the employers are licensed as stevedores pursuant to
section 3.2(a)(2) of Part 3 hereof and are affiliated corporations with common
officers and a common board of directors. A licensed pier superintendent or
hiring agent may act for one employer at more than one pier or waterfront
terminal, and a single application will be sufficient for this purpose.
Historical Note
Sec. amd. filed June 29, 1966. New sec. substituted.
2.7 Issuance and delivery of license.
Upon the approval of an application, the commission will issue
and deliver a license to the pier superintendent or hiring agent by
transmitting the license to the applicant (employer) who shall be authorized to
deliver it to the licensee upon the commencement of his employment.
2.8 Identification to be carried by licensee;
identification to be returned to commission when required.
Any card, badge or other means of official identification
issued by the commission to any licensed pier superintendent or hiring agent
shall be carried by the licensee on his person at all times when he is at work
or at any pier or other waterfront terminal. Any such card, badge or other
means of official identification shall be returned to the commission promptly
upon request and when otherwise required by these regulations.
2.9 Participation by any person other than employer in
identification or selection of pier superintendent, hiring agent or other
person authorized to participate in hiring prohibited; employer prohibited from
solicitation.
(a) No person
except the employer shall participate in any way, directly, or indirectly, in
the identification, selection or designation of a person for employment as a
pier superintendent, hiring agent or other person designated pursuant to
section 7.44, infra. No person shall use, or attempt or threaten to use, any
force, violence or restraint; or inflict or attempt or threaten to inflict any
injury, damage, harm or loss; or coerce, or attempt to coerce, by threat or
discrimination, violence or economic reprisal; or in any other way practice
intimidation upon or against any employer in order to induce or compel said
employer to select for or retain in employment any person as a pier
superintendent, hiring agent or other person designated pursuant to section
7.44, infra. No person shall prevent, attempt to prevent, or otherwise
interfere with the free exercise of discretion by any employer in selecting for
or retaining in employment any person as a pier superintendent, hiring agent or
other person designated pursuant to section 7.44, infra. No person shall pay or
give, or offer or agree to pay or give any valuable consideration to any person
for the purpose of directly or indirectly influencing the discretion of any
employer in selecting for or retaining in employment any person as a pier
superintendent, hiring agent or other person designated pursuant to section
7.44, infra.
(b) No employer shall
receive any benefit from any person for the purpose of directly or indirectly
influencing the discretion of the employer in selecting for or retaining in
employment any person as a pier superintendent, hiring agent or other person
designated pursuant to section 7.44, infra.
2.10 Notification by employer of termination of
licensee's employment and return of evidence of license.
Upon the termination of the employment of a licensee, without
any understanding or arrangement for reemployment, or in the event of the
failure of the applicant (employer) to employ the licensee within 30 days after
issuance of the license, the applicant (employer) shall forthwith notify the
commission of such termination of employment or failure to employ and return to
the commission any license, badge or other evidence of issuance of a license in
its possession.
2.11 Reports to be furnished by pier
superintendents.
(a) Every
pier superintendent shall immediately report to the commission any theft or
attempted theft.
(b) Every pier
superintendent referred to in subdivision (b) of this section shall immediately
supply the commission with a copy of the first report of accident concerning
any longshoreman or checker who claims to have been injured:
(1) where the pier superintendent has reason
to believe that the longshoreman or checker has made or may be making a false
claim for compensation benefits; or
(2) where the longshoreman or checker does
not work because of his claimed injuries for 14 days or more.
Historical Note
Sec. amd. filed Jan. 3, 1977 eff. Jan. 3, 1977.
Added (c).
Sec. amd. filed March 13, 2013 eff. March 13,
2013.
2.12 Protection of cargo.
Every pier superintendent having over-all charge or supervision
of the operations of the pier or other waterfront terminal who is employed by a
carrier of freight by water having the responsibility of safeguarding
waterborne freight shall cause all cargo on the pier or terminal to be so
protected from theft or pilferage as may be reasonably necessary and
appropriate for the particular cargo.
2.13 Authorization to make a criminal complaint.
Every pier superintendent having over-all charge or supervision
of the operations of the pier or other waterfront terminal who is employed by a
carrier of freight by water having the responsibility of safeguarding
waterborne freight shall furnish the commission with the name of the person or
persons in the employ of the carrier of freight by water authorized by the
carrier to make a criminal complaint in connection with cargo stolen from the
custody of the said carrier.
2.14 Record of checkers assigned to motor
vehicles.
Every pier superintendent having over-all charge or supervision
of the operation of the pier or other waterfront terminal who is employed by a
carrier of freight by water having the responsibility of safeguarding
waterborne freight shall cause to be recorded on the appropriate documents
reflecting delivery or removal of cargo to or from the pier or terminal by
motor vehicle, the full names of all checkers assigned to such vehicle.
PART 3
STEVEDORES
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
| Section |
| 3.1 |
Stevedores required to be licensed |
| 3.2 |
Persons required to be licensed as
stevedores |
| 3.3 |
Freight excluded from definition of
waterborne freight |
| 3.4 |
Application for stevedore license |
| 3.5 |
Application--photograph, fingerprints |
| 3.6 |
Additional information to be furnished when
required |
| 3.7 |
Issuance and display of license |
| 3.8 |
Notification--contracts, changes in corporate
structure |
| 3.9 |
Licensee to maintain books and records |
| 3.10 |
Records of disbursements |
| 3.11 |
Cargo theft and loss report; report of
compensation claims |
| 3.12 |
Protection of cargo |
| 3.13 |
Authorization to make criminal
complaint |
| 3.14 |
Record of checkers assigned to motor
vehicles |
Section 3.1 Stevedores required to be licensed;
employment of unlicensed stevedores prohibited.
No person shall act as a stevedore within the Port of New York
District without having first obtained a license from the commission, and no
person shall employ a stevedore to perform services as such within the Port of
New York District unless the stevedore is so licensed.
3.2 Persons required to be licensed as stevedores;
persons not required to be licensed as stevedores.
(a) A stevedore license is required by any
person (other than an employee) who is engaged under a contract or other
arrangement with a carrier of freight by water or a licensed stevedore or, with
respect to subdivision (a)(2) and (a)(3) below only, any person within the
meaning of that term contained in Part II, § 5-a (6)(c) of the Act (1969
amendments)) (including a parent corporation or a subsidiary corporation of
such carrier or licensed stevedore or "any person"):
1. in the movement of waterborne freight
carried or consigned for carriage by such carrier on vessels of such carrier
berthed at piers, on piers at which such vessels are berthed or at other
waterfront terminals, or to provide clerking and checking services in
connection therewith; or
2. to
perform all or any part of labor or services incidental to the movement of
waterborne freight on vessels berthed at piers, on piers or at other waterfront
terminals (including marine terminals), including, but not limited to, cargo
storage or warehousing, cargo repairing, marine carpentry, strapping, lashing,
chocking, coopering, weighing, scaling, cargo inspection and sampling,
maintenance, mechanical, container or equipment repair, crane maintenance and
repair, tire repair, vehicle preparation, export packing, labeling, cleaning
and maintenance services, horse and cattle fitting and grain ceiling;
or
3. to perform labor or services
involving, or incidental to, the movement of freight into or out of containers
(which have been or which will be carried by a carrier of freight by water) on
vessels berthed at piers, on piers or at other waterfront terminals.
4. a license issued under paragraph (2) or
(3) of this section shall be restricted to the performance of the services
contemplated by said paragraph.
(b) A stevedore license shall not be
required:
1. by any person engaged
exclusively in moving by means of floating mechanical equipment bulk cargo
consisting of a single commodity loaded or carried without wrappers or
containers and delivered by the carrier without transportation mark or count;
or
2. by any person who is not
principally engaged in the movement of waterborne freight and who on occasion
moves waterborne freight for or on behalf of a carrier of freight by water or a
stevedore, exclusively by means of mobile land-based cranes not affixed to a
pier or terminal with capacity of at least 20 tons, or exclusively by means of
floating mechanical equipment; or
3. by any person who furnishes such equipment
as set forth in paragraph (2) above to move waterborne freight to a carrier of
freight by water or stevedore by lease, rental or otherwise.
(c) A carrier of freight by water
shall not require a stevedore license even though it may perform all or part of
the services for which a stevedore license would be required when performed by
any other person, provided that such services are performed on its own account,
or on account of a parent corporation or a subsidiary corporation of such
carrier, or as accommodation, not in the regular course of its business, at its
own pier for another carrier of freight by water, or as part of its services
for another carrier of freight by water for which it is a general
agent.
3.3 Freight excluded from definition of waterborne
freight.
For the purposes of article VI of the Act and Part 3 of these
Regulations, waterborne freight shall not include freight loaded within the
Port of New York District upon motor vessels not in excess of 115 foot
length.
3.4 Application for stevedore license.
A license to act as a stevedore will be issued only upon a
verified application submitted on a form furnished by the commission. Each
application for a stevedore license shall be accompanied by a personal
character information form furnished by the commission, completed and verified
by the applicant, by each member of a partnership, and, if the applicant is a
corporation, by each officer, each director and each natural person holding,
directly or indirectly, five per cent or more of any class of capital stock.
The commission may, upon examination, require such additional evidence and
information as may be required to establish the character of the real parties
in interest.
3.5 Application to be accompanied by photograph and
fingerprints.
For the purpose of assisting the commission to ascertain the
character, integrity and identity of an applicant for a stevedore license, each
application shall be accompanied by a photograph and the authenticated
fingerprints on a record identification form to be furnished by the commission,
of an individual applicant, each member of a partnership, each officer and each
director and each natural person holding, directly or indirectly, five per cent
or more of any class of capital stock of a corporate applicant.
3.6 Additional information to be furnished when
required.
In addition to the information required by the application
form, the commission may require the applicant to produce such further facts
and evidence as may be necessary to determine whether or not the applicant
possesses the qualifications and meets the requirements necessary to obtain a
license.
3.7 Issuance and display of license.
Upon the approval of an application, the commission will issue
and deliver a stevedore license which shall indicate thereon the type of
stevedoring service authorized to be performed and which shall be prominently
displayed at the licensee's principal place of business within the Port of New
York District. The commission will issue the following types of stevedore
license:
(a) a license for the
performance of general stevedoring service, including clerking and checking
services;
(b) a license restricted
to the performance of all or any part of cooperage, carpentry, maintenance or
other related services incidental to the movement of waterborne freight
including those enumerated in sections 3.2(a)(2) or (3).
3.8 Notification of stevedore contracts and changes in
corporate management, ownership and capitalization.
Every licensed stevedore shall notify the commission forthwith,
and in detail, of any of the following events:
(a) the making or execution of any term
contract or arrangement for stevedoring services with a carrier of freight by
water and of the termination or cancellation of such contract, but such
notification shall not be required with respect to oral or written "spot"
contracts or arrangements entered into with a carrier of freight by water or
its agent for a single vessel operation; and
(b) any change in the officers, directors,
and/or stockholders owning five per cent or more of the capital stock of any
class or any change in the capitalization of the corporation.
3.9 Licensee to maintain books and records.
(a) Every licensed stevedore shall
maintain a complete set of books and records containing:
(1) a true and accurate account of the licensee's
receipts and disbursements arising out of its activities within the Port of New
York District and
(2) records
reflecting the names, waterfront numbers and the places of employment of
employees, including but not limited to, pier location, vessel name, warehouse,
shed or other location, and dates and times of employment.
(b) All books and records enumerated in (a)
above shall be available during business hours for inspection by the commission
and its duly designated representatives until the expiration of the fifth
calendar year following the calendar year during which occurred the transaction
or labor performed recorded therein.
3.10 Records of disbursements.
Every licensed stevedore shall comply with the
following:
(a) Every disbursement for
goods or services in the amount of $ 100 or more shall show the account to be
charged and shall be supported by a voucher or other paid receipt giving a
description of the goods or services, the name of the payee, the amount and the
date.
(b) Every disbursement for
goods or services in an amount less than $ 100 shall be supported by at least a
signed petty cash slip or other written record describing the
disbursement.
(c) Every
disbursement in the amount of $ 100 or more for travel shall be supported by a
voucher or other paid receipt which shall state who did the travelling, the
place travelled to, the date, and the amount disbursed.
(d) Every disbursement in the amount of $ 100
or more for entertainment shall be supported by a voucher or other paid receipt
which shall state who did the entertaining, the place and date of the
entertainment, the names of the persons entertained and the amount
disbursed.
(e) Every disbursement
for travel or entertainment in an amount less than $ 100 shall be supported at
least by a signed petty cash slip or other written record describing the
disbursement.
(f) Every
disbursement in the amount of $ 25 or more for a gift or gratuity shall be
supported by a voucher or other written record which shall show the name of the
person in authority who made or authorized the disbursement, the name of the
person who received it, the amount, date, and the business or other purpose for
the gift or gratuity.
3.11 Cargo theft and loss report; report of compensation
claims.
(a) Every licensed
stevedore shall, within 24 hours of discovery, in a manner set forth and/or on
forms furnished by the commission, file a report for each pier or other
waterfront terminal at which it performs any stevedore services of all thefts
and losses of waterborne freight and company owned, or leased, equipment or
supplies occurring under suspicious circumstances and such other information as
the commission may require.
(b)
Every licensed stevedore shall immediately supply the commission with a copy of
the first report of accident concerning any longshoreman or checker who claims
to have been injured (1) where the stevedore has reason to believe that the
longshoreman or checker has made or may be making a false claim for
compensation benefits or (2) where the longshoreman or checker does not work
because of his claimed injuries for 14 days or more.
Historical Note
Sec. amd. filed Jan. 3, 1977 eff. Jan. 3, 1977
Amended title and added (b).
Sec. amd. filed March 13, 2013 eff. March 13,
2013.
3.12 Protection of cargo.
In the interest of the public safety, welfare, prosperity,
health and peace, every licensed stevedore having the responsibility of
safeguarding waterborne freight, shall cause all cargo on the pier or other
waterfront terminal to be so protected from theft or pilferage as may be
reasonably necessary and appropriate for the particular cargo.
3.13 Authorization to make criminal complaint.
Every licensed stevedore shall furnish the commission with the
name of the person or persons in its employ authorized by it to make a criminal
complaint in connection with cargo stolen from its custody.
3.14 Record of checkers assigned to motor
vehicles.
Every licensed stevedore shall cause to be recorded on the
appropriate documents reflecting delivery or removal of cargo to or from the
pier or other waterfront terminal by motor vehicle, the full names of all
checkers assigned to such vehicle.
PART 4
LONGSHOREMEN, CHECKERS AND TELECOMMUNICATIONS SYSTEM
CONTROLLERS
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
| Section |
| 4.1 |
Longshoremen, checkers, and
telecommunications system controllers |
| 4.2 |
Persons required to be registered as
longshoremen |
| 4.3 |
Checkers required to be registered |
| 4.4 |
Longshoremen's Register; division into
sections; designation |
| 4.5 |
Telecommunications system controllers (TSC)
required to be |
| registered |
| 4.6 |
Application for emergency use of persons not
registered |
| 4.7 |
Application for registration |
| 4.8 |
Application to be accompanied by photograph
and fingerprints |
| 4.9 |
Additional information to be furnished when
required |
| 4.10 |
Identification to be carried by registrant;
identification to be |
| returned to commission when required |
| 4.11 |
Baggage porter identification |
| 4.12 |
Solicitation of tips prohibited |
| 4.13 |
False compensation claims prohibited |
Section 4.1 Longshoremen, checkers, and
telecommunications system controllers required to be registered; employment of
longshoremen, checkers, and telecommunications system controllers not
registered prohibited.
No person shall act as a longshoreman or as a checker within
the Port of New York District unless at the time he is included in the
longshoremen's register as a longshoreman or checker, respectively, and no
person shall employ another to work as a longshoreman or checker within the
Port of New York District who is not so included in the longshoremen's
register. No person shall act as a telecommunications system controller within
the Port of New York District unless at the time he is registered by the
commission as such, and no person shall employ another to work as a
telecommunications system controller within the Port of New York District who
is not so registered by the commission.
4.2 Persons required to be registered as longshoremen;
persons not required to be registered as longshoremen.
(a) Inclusion in the longshoremen's register
as a longshoreman is required for any person:
1. who is employed to handle waterborne
freight by a carrier of freight by water or by a stevedore at a pier or other
waterfront terminal, including, without being limited to, gang foremen, dock
gang foremen, headers, gangwaymen, winchmen, dockmen, holdmen, terminal labor
operators of mechanical equipment, sorters and baggage porters, or
2. who is employed by a carrier of freight by
water or by a stevedore, physically to perform labor or services incidental to
the movement of waterborne freight on vessels berthed at piers, on piers or at
other waterfront terminals (including marine terminals within the meaning of
the Act), including, without being limited to, cargo storagemen and
warehousemen, cargo repairmen, marine carpenters, container loaders and
strippers, lashers, chockers, coopers, weighers, sealers, cargo inspectors and
samplers, trailer interchange inspectors, maintenance, mechanical, container or
equipment repairmen, crane maintenance men and repairmen, tire repairmen,
vehicle preparers, export packers, labelers, cleaning and maintenance
personnel, horse and cattle fitters and grain ceilers, or
3. who is indirectly employed by a carrier of
freight by water or by a stevedore, through a subsidiary or parent corporation
of, or a contractor with, either of them, physically to perform the labor or
services described in paragraph (2) above, or
4. who is employed by any person for work at
a pier or other waterfront terminal physically to move waterborne freight to or
from a barge, lighter or railroad car for transfer to or from a vessel of a
carrier of freight by water which is, shall be, or shall have been berthed at
the same pier or other waterfront terminal, or
5. who is employed by any person, other than
by a carrier of freight by water or by a stevedore, to perform labor or
services involving or incidental to the movement of freight at a location in a
marine terminal within the meaning of the Act.
(b) inclusion in the longshoremen's register
as a longshoreman is not required for:
1.
jobs limited to the handling of liquid cargoes in bulk in tanks (such as, but
not limited to, fuel oils, petroleum or orange juice), or carriage by barge of
bulk cargoes consisting of a single commodity (such as, but not limited to,
cement, gravel, coal, grain or ore) loaded or carried without wrappers or
containers or limited to the handling of cargoes transported from one point to
another point within the Port of New York District, or
2. any person who is regularly engaged in the
performance of labor or services not covered by subdivision (a) of this section
and who is only incidentally engaged in the performance of labor or services
covered by said subdivision (a) where permission therefor has been previously
obtained from the commission, or
3.
persons who are regularly employed to perform labor or services not covered by
subdivision (a) of this section and who are assigned by such employer to the
performance of labor or services covered by said subdivision (a) only to meet
special or emergency needs for the protection of the public health or safety
where approval therefore has been previously obtained from the commission.
Decisions
1.
Validity
Waterfront Commission regulation 4.1, subd. (b), par. (3) (cf.
21 NYCRR 4.2[b][3]), authorizing use of nonregistered personnel to move
waterborne freight where a special or emergency need to protect public health
or safety exists, is a reasonable and valid exercise of discretionary rule
making power granted by the Waterfront Commission Act and is not inconsistent
with either the intent or provisions thereof. Connolly v. O'Malley, 17 A.D.2d
411 (1962), revg. 32 Misc.2d 282 (1961).
4.3 Checkers required to be registered.
Inclusion in the longshoremen's register as a checker is
required for any longshoreman, including, but not limited to, a timekeeper,
checker or clerk, 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.
4.4 Longshoremen's Register; division into sections;
designation and sponsorship of "1969 Amendment" longshoremen.
(a) A longshoremen's register shall be
maintained in the offices of the commission. Copies shall be kept and exhibited
at each commission employment information center.
(b) The register shall be divided as follows:
(1) A "deep-sea" register which shall include
all persons registered by the commission as longshoremen and checkers except
those persons registered as longshoremen pursuant to the 1969 amendments to the
Act (NY Laws 1969, ch. 953; NJ Laws 1969, ch. 128).
(2) An "A" or "1969 amendment" register which
shall include all persons registered by the commission as longshoremen pursuant
to the 1969 amendments to the Act (NY Laws 1969, ch. 953; NJ Laws 1969, ch.
128).
(c) No application
shall be accepted from any person seeking inclusion in the deep-sea register
unless the commission at such time has determined to accept such
applications.
(d) No application
shall be accepted from any person seeking inclusion in the "A" register unless
that person is sponsored for employment by a stevedore or by any person, within
the meaning of those terms contained in the 1969 amendments to the Act (NY Laws
1969, ch. 953; NJ Laws 1969, ch. 128). The sponsoring employer shall submit a
letter setting forth the name and address of the person, and the labor
service(s) to be performed, and shall certify that the selection of the person
so sponsored was made in a fair and nondiscriminatory 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.
Historical Note
Sec. amd. filed September 13, 2013 eff. September 13,
2013.
4.5 Telecommunications system controllers (TSC) required
to be registered.
Registration as a telecommunications system controller is
required of any person employed by the association representing employers of
longshoremen and checkers and of the labor organization representing
longshoremen and checkers in the Port of New York District, or a joint board of
such association and labor organization, who participates in the operation of
the telecommunications hiring system (THS). An applicant for registration as a
telecommunications system controller must be sponsored by the association
representing employers of longshoremen and checkers and the labor organization
representing longshoremen and checkers in the Port of New York District, or by
a joint board of such association and labor organization. Registration as a
telecommunications system controller shall terminate upon the registrant's
cessation of employment.
4.6 Application for emergency use of persons not
registered.
An application for approval under paragraph (3) of subdivision
(b) of section 4.2 shall be made to the commission by an employer in writing,
who shall certify as follows:
(a) that
an emergency exists involving the protection of the public health or safety,
setting forth the facts and details of such emergency for each ship;
(b) that only regular employees of his
company will be used for this purpose;
(c) that no one will be used who has been
denied registration or whose registration has been previously revoked by the
commission, or is under present suspension;
(d) that no one will be used who, to the best
knowledge of the employer, has a criminal record;
(e) that the employer will maintain accurate
records of the names of persons so used and their time and place of
assignment;
(f) that such records
will be available for inspection by commission personnel at the direction of
the executive director in the event such records become necessary for an
investigation conducted by the commission or other law enforcement
agency;
(g) That anyone so used by
the employer will be removed immediately at the request of the executive
director.
4.7 Application for registration.
An application for registration as a longshoreman, checker or
telecommunications system controller shall be made on forms furnished by the
commission and may be filed at the main administrative offices of the
commission or at a designated employment information center.
4.8 Application to be accompanied by photograph and
fingerprints.
For the purpose of assisting the commission to ascertain the
identity and criminal record, if any, of the applicant, each application shall
be accompanied by a photograph and the authenticated fingerprints of the
applicant on an identification record form furnished by the commission.
4.9 Additional information to be furnished when
required.
In addition to the information required by the application
form, the commission may require the applicant to produce such further facts
and evidence as may be necessary to establish the identity of such person and
to determine whether registration should be granted.
4.10 Identification to be carried by registrant;
identification to be returned to commission when required.
Any card, badge or other means of official identification
issued by the commission to any registrant shall be carried by the registrant
on his person at all times when he is at work or at any pier or waterfront
terminal. Any such card, badge or other means of official identification shall
be returned to the commission promptly upon request and when otherwise required
by these Regulations.
4.11 Baggage porter identification.
Every longshoreman who works as a baggage porter for passengers
embarking or disembarking on a vessel carrying more than 12 passengers shall
wear while he is so working, so as to be clearly visible, such identification
as shall be approved by the commission. The hiring agent or pier superintendent
responsible for the assignment of longshoremen to baggage work shall cause such
identification to be distributed to and collected from such longshoremen daily
and shall cause a written record to be kept with respect to the distribution
and collection of such identification on forms furnished or approved by the
commission. Such written records shall be retained by the hiring agent or pier
superintendent for a period of four months and shall be available for
inspection by the commission.
4.12 Solicitation of tips prohibited.
No person registered by the commission shall solicit, request,
require, demand or exact any tip or gratuity or anything of value for any work
performed by himself or by any other registered person in his capacity as such
registered person, including, but not limited to, the handling of baggage and
the loading and unloading of trucks.
4.13 False compensation claims prohibited.
No person registered by the commission shall make a false
statement for the purpose of obtaining any benefit or payment under any state's
workers' compensation law or under the Federal Longshoremen and Harbor Workers
Compensation Act. Any violation of this section shall be deemed by the
commission, in the case of a checker, to constitute an act which is
inconsistent with the possession of good character and integrity under section
5-n of the Waterfront Commission Act, and, in the case of a longshoreman, to
constitute the longshoreman a danger to the public peace or safety under
article VIII of the Act.
Historical Note
Sec. filed Jan. 3, 1977 eff. Jan. 3, 1977.
PART 5
PORT WATCHMEN
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
GENERAL PROVISIONS
| Section |
| 5.0 |
Mission |
| 5.1 |
Port watchman defined |
| 5.2 |
Requirement for license |
| 5.3 |
Application for license |
| 5.4 |
Duration of license |
| 5.5 |
Medical examination |
| 5.6 |
Physical fitness standards |
| 5.7 |
Waiver of physical fitness standards |
| 5.8 |
Exemption from medical examination |
| 5.9 |
Cancellation of license or temporary permits
for failure to work |
| 5.10 |
Training and fitness standards |
| 5.11 |
Expiration of license at age 70 |
| 5.12 |
Licenses and other official
identification |
| 5.13 |
Security officer's and supervisory security
officer's uniform |
| 5.14 |
Information to be Furnished by
employers |
| 5.15 |
Records to be maintained by security
officers and supervisory security |
| officers |
| 5.16 |
Security officer's and supervisory security
officer's log |
| 5.17 |
Gate vehicle books and identification
check |
| 5.18 |
Reports to be furnished by port
watchmen |
| 5.19 |
Standards of conduct |
| 5.20 |
Interfering with the duties of port
watchmen |
| HIRING OF SECURITY OFFICERS AND SUPERVISORY
SECURITY OFFICERS |
| 5.21 |
Construction |
| 5.22 |
Definitions |
| 5.23 |
Employers subject to regulation |
| 5.24 |
Establishment of security officer lists |
| 5.25 |
Additions to security officer lists |
| 5.26 |
Rejection of lists, replacements and
additions |
| 5.27 |
Removal from lists |
| 5.28 |
Corrections and restoration to lists |
| 5.29 |
Reporting employment opportunities |
| 5.30 |
Ordering from lists |
| 5.31 |
Filing employment reports |
| 5.32 |
Employment of casual security officers |
| 5.33 |
Extension of employment for casual security
officers |
| 5.34 |
Emergency hiring |
| PRIORITIES |
| 5.35 |
Construction of priorities |
| 5.36 |
Ordering from regular security officer
lists |
| 5.37 |
Ordering from extra security officers
lists |
| 5.38 |
Selection of casual security officers |
| 5.39 |
Additions to regular security officer
lists |
| 5.40 |
Additions to extra security officer
lists |
| 5.41 |
Ordering by special agreement |
GENERAL PROVISIONS
Section 5.0 Mission.
(a) The port watchman is assigned to a
company's facilities to protect all property within the limits of the facility
and to protect the lives of employees and others on the property. This
includes:
(1) Providing building and premises
security to the employer's property.
(2) Enforcing company policies and
procedures.
(3) Making vehicular
and foot patrols and performing security checks.
(4) Providing effective gate and exit control
to insure compliance with any instituted badge control or pass control
system.
(5) Regulating and
directing traffic as necessary and as permitted by local laws.
(6) Preventing theft, arson,
sabotage.
(7) Responding to alarm
signals.
(8) To observe and report
fire and safety hazards.
(9)
Promoting safety to prevent accidents.
(10) Furthering goodwill and public
relations.
(11) Submitting routine
and special reports to supervisors as well as shift logs and records.
(12) Enforcing rules and policies that have
been established for the protection of the facility and personnel.
(b) The port watchman is not a
police officer, nor does he/she have any police powers of arrest. The port
watchman's rights and powers are no more and no less than those of any U.S.
citizen. The port watchman is subject to civil suit for false arrest or
imprisonment under any circumstances if the Security Officer detains someone
illegally. The port watchman's duty is to prevent rather than to apprehend. The
port watchman is under a duty to notify law enforcement authorities of any
criminal conduct they become aware of or observe.
Historical Note
Sec. added July 15, 2004 filed July 15, 2004 eff. July 15,
2004.
5.1 Port watchman defined.
(a) A
port watchman shall mean
any person employed directly or indirectly, by contract or other arrangement,
by the operator of a pier or other waterfront terminal, or by a carrier of
freight by water, to perform services as a guardian or protector of property on
any pier or other waterfront terminal.
Port watchman shall be classified and designated
as follows (any referenced to port watchman in these regulations is deemed to
include all three classifications and designations set forth below):
(1)
Security officer. A
watchman, roundsman, gateman, guard, security officer, inland security officer,
or any person performing similar services. For purposes of this Part, an
Inland Security Officer is a guardian or protector of property at
any warehouse, depot or other terminal, other than a pier, whether enclosed or
open, which is located in a marine terminal in the port of New York district
and any part of which is used by any person to perform labor or services
involving, or incidental to, the movement of waterborne freight or freight.
Inland Security Officer shall also include, individuals employed as canine
handlers at any pier, warehouse, depot or other terminal, whether enclosed or
open, at which passengers embark or disembark from vessels and/or at which
baggage is handled or sorted, this includes, but is not limited to, those
terminals currently located in the port of New York district which are
designated as passenger ship terminals. Individuals licensed as inland security
officers are limited to employment by their sponsoring employer.
(2)
Supervisory security
officer. A security officer, supervisor, dispatcher or any other person,
a substantial part of whose services, performed at piers or other waterfront
terminals, includes the supervision, selection or assignment of security
officers engaged in the protection of property on any pier or other waterfront
terminal.
(3)
Management
security officer. An officer, manager, supervisor, dispatcher or any
other person, whose services performed at piers or other waterfront terminals
is to supervise, select or assign security officers or supervisory security
officers engaged in the protection of property on any pier or other waterfront
terminal and/or an individual who performs the duties of a Facilities Security
Officer (FSO) in accordance with the requirements of the Maritime
Transportation Security Act of 2002 and related United States Coast Guard
regulations. A management security officer shall not be a member of a labor
organization which represents longshoremen, checkers, or port watchmen;
however, this shall not be deemed to prohibit management security officers from
being represented by a labor organization which does not also represent
longshoremen, checkers, or port watchmen. Individuals licensed as management
security officers are limited to employment by the sponsoring
employer.
(b) Persons
employed exclusively as protectors or guardians of persons (as distinguished
from property) or exclusively in the protection or guarding of ships or vessels
not included in the definition of carrier of freight by water, or cargo not
included in the definition of waterborne freight, or for work on a pier or
waterfront terminal not used for waterborne freight, shall not be deemed to be
a port watchman and shall not be required to obtain a license from the
commission.
Historical Note
Sec. amds. filed Oct. 17, 1966.
Sec. amds. filed July 2, 1993 eff. July 2, 1993.
Sec. amds. filed July 15, 2004 eff. July 15, 2004. Amended (a)
(1) (2), Added (a)(3), Amended (b).
Sec. amds. filed April 14, 2006, eff. April 14, 2006. Amended
(a)(1).
5.2 Requirement for license.
No person shall act as a security officer, supervisory security
officer, or management security officer within the Port of New York District
without first having obtained a license or temporary permit from the
commission. No person shall employ a security officer, supervisory security
officer or management security officer who has not obtained such license or
temporary permit.
Historical Note
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.3 Application for license.
(a) An application for a license to act as a
security officer, a supervisory security officer, or a management security
officer shall be made under oath on a form approved and furnished by the
commission and shall include:
(1) The full
name, residence, business address (if any), place and date of birth and social
security number of the applicant;
(2) The present and previous occupations of
the applicant, including the places where the applicant was employed and the
names of the employers;
(3) The
citizenship of the applicant and, if the applicant is a naturalized citizen of
the United States, the certificate of naturalization, including the court and
date of naturalization;
(4) A
photographic license to drive or other photographic identification issued by a
Federal, State or County Agency, or a valid passport;
(5) If the applicant is a non-citizen of the
United States, valid proof from the federal government of authorization to work
in the United States;
(6) Two
photographs (2" x 2");
(7) A
certification from an employer that such employer will sponsor the applicant
for employment specifying the capacity, security officer, supervisory security
officer or management security officer, in which the applicant is being
sponsored for employment; and
(8)
Such further facts and evidence as the commission may deem appropriate to
enable it to ascertain whether the license should be granted.
(b) All applicants for a license
to act as a security officer and supervisory security officer shall:
(1) Complete an application for a license as
set forth in subdivision (a) of this section;
(2) Submit to a fingerprint criminal history
check at the applicant's expense;
(3)
(i)
Have a High School Diploma or Graduate Equivalency Diploma/Degree (GED)
and
(ii) achieve a proficiency
score equivalent to an eight (8th) grade level of education on a test
administered by the commission or by another agency with the approval of the
commission;
(4) Undergo
psychological testing and meet the requirements thereof;
(5) Undergo medical examination and meet the
requirements thereof; and
(6)
Undergo drug screening and be free from drugs.
(c) All applicants for a license to act as a
management security officer shall:
(1)
Complete an application for a license as set forth in subdivision (a) of this
section;
(2) Submit to a
fingerprint criminal history check at the applicant's expense;
(d) Pending final action on an
application made for such a license, the commission may issue a temporary
permit to any applicant, any such temporary permit may be issued under such
terms and conditions as the commission may prescribe and shall be valid for a
period to be fixed by the commission not in excess of six months.
Historical Note
Sec. amds. Filed: Sept. 18, 1985; July 2, 1993 eff. July 2,
1993. Amended (a) (4);
Sec. amds filed July 15, 2004 eff. July 15, 2004, except
(3)(b)(ii) and (4), eff. September 7, 2004. Amended (a) (3), renum. and amended
(a) (4) and (5) and (b), added new (a) (4) (5) (6), added new (b) and
(c).
5.4 Duration of license.
(a) A license to act as a port watchman shall
continue indefinitely and need not be renewed, provided that the licensee shall
meet the requirements of the Waterfront Commission Act and these rules and
regulations for such license, and provided further, that the licensee shall
comply with the following every three years:
(1) For all security officers and supervisory
security officers;
(i) Submit to a medical
examination and meet the physical and mental fitness standards in accordance
with this Part;
(ii) Successfully
complete yearly training, as required by Section 5.10 of this part;
(iii) Submit supplementary personal history
information;
(2) For all
management security officers;
(i) Submit a
certification from an employer that the licensee is employed in such a
capacity.
(ii) Submit supplementary
personal history information;
(b)
(1) The
holder of a temporary permit as a port watchman need not apply for renewal of
said permit, provided that the permittee shall comply with the requirements
paragraph (a) of this section;
(2)
The license or temporary permit of any person who fails to comply with
paragraph (a) of this section shall be cancelled, unless continued by the
commission for good cause shown.
Historical Note
Sec. renum. 5.5, new filed Sept. 18, 1985;
Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended (a)
(1) and (2), (b) (1) and (2).
5.5 Medical examination.
Any security officer and supervisory security officer licensee,
when the commission requires, and every security officer and supervisory
security officer applicant shall submit to a medical examination to be
conducted by a licensed physician approved by the commission. Such examination
shall include the recording of a complete medical history and any appropriate
laboratory procedures which the physician may deem necessary for the purposes
of this section. In lieu of such examination, the commission may accept the
report of a medical examination conducted by a medical clinic or medical center
which has previously been approved by the commission.
Historical Note
Sec. repealed, new filed Oct. 17, 1966; amds. Filed: Jan. 27,
1969; March 11, 1970. Renum. 5.6, new added by renum. 5.4, filed Sept. 18,
1985; amd. Filed July 2, 1993 eff. July 2, 1993; Sec. amds filed July 15, 2004
eff. July 15, 2004.
5.6 Physical fitness standards.
An application for a license as a security officer or
supervisory security officer shall not be granted and the license or temporary
permit of any person required to meet the physical standards pursuant to
section 5.4 of this Part shall be cancelled unless the applicant, licensee or
holder of a temporary permit:
(a) Is
not more than 70 years of age;
(b)
Has:
(1) Hearing acuity of 40 decibels or
better in both ears at the average of the following frequencies - 500, 1000,
2000 and 4000 Hertz; use of a hearing aid is permitted;
(2) Vision correctable to 20/40 in both eyes;
and;
(3) Blood pressure of no more
than 140/90 (at rest);
(4) Ability
to walk long distances unaided;
(5)
Ability to stand for prolonged periods if time;
(6) Ability to lift a minimum of 45
pounds;
(7) Ability to run short
distances;
(c) Has not
had within three years a history of, and is presently free from symptoms of:
(1) Mental illness;
(2) Heart disease; and
(3) Uncontrolled seizures;
(d) is free from:
(1) Uncompensated liver disease;
(2) Chronic lung disease;
(3) Uncontrolled asthma;
(4) Active tuberculosis;
(5) Uncontrolled or uncontrollable
diabetes;
(6) Neuro-muscular
disease, such as Parkinson's Disease and neuro sclerosis;
(7) Chronic alcoholism; and
(e) Is free of any condition,
illness, disease, deformity or psychopathic personality traits, including but
not limited to abnormality of weight-height ratio (which shall be determined by
utilizing the Metropolitan Life Insurance height-weight table or its medically
accepted equivalent and adding thereto or subtracting therefrom weight of not
more than 25 percent), hernia, arthritis, peripheral vascular disease, and
addiction and habituation to any drug which has psychomotor effects, which by
its nature would make him unable or potentially unable to perform any of the
duties of a security officer or supervisory security officer, or which might
cause his presence upon the waterfront to be hazardous to himself or to
endanger the life and property of others.
Historical Note
Sec. amd. Filed March 11, 1970; renum. 5.7, new added by renum.
And amd. 5.5, filed Sept. 18, 1985; amd. filed July 2, 1993 eff. July 2, 1993.
Amended (b) (3); (e); Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended
(a), (b), (c), (d) and (e). Sec. amds filed March 8, 2005 eff. March 8, 2005;
Amended (a).
5.7 Waiver of physical fitness standards.
The commission, in its discretion, upon petition of an
applicant for renewal of a license, or upon its own initiative, may grant a
waiver of any physical standards required for a license to act as a security
officer or supervisory security officer where such petition shows and the
commission finds that:
(a) The
petitioner's employer joins in the petition, is satisfied with the petitioner's
services, and will continue to employ the petitioner; and
(b) The petitioner is physically capable of
satisfactorily performing the duties of a security officer or supervisory
security officer; and
(c) The
petitioner was employed by said employer for a minimum of 500 hours during the
preceding year.
Historical Note
Sec. renum. 5.8, new added by renum. and Amd. 5.6, filed Sept.
18, 1985; Sec. amds filed July 15, 2004 eff. July 15, 2004.). Sec. amds filed
March 8, 2005 eff. March 8, 2005; Amended 5.7 and 5.7 (a) &
(c).
5.8 Exemption from medical examination.
(a) No holder of a temporary permit or
license, who has been previously physically examined by a physician approved by
the commission within three years, shall be required to submit to a medical
examination pursuant to section 5.5 of this Part, unless specifically required
to do so by the commission if he:
(1) Has not
been granted a waiver from the physical fitness standards prescribed by section
5.6 of this Part; and
(2) Has not
since the time of his prior physical examination been hospitalized or received
medical treatment for any condition, illness, disease or deformity as set forth
in section 5.6 of this Part.
(b) No holder of a temporary permit or
license, who has been physically examined during the current year by a
physician approved by the commission, shall be required to submit to a medical
examination pursuant to section 5.5 of this Part, unless specifically required
to do so by the commission.
(c) No
applicant for a license to act as a Management security officer under section
5.1 (a) 3 of this Part, shall be required to submit to a medical examination or
meet the age requirements of section 5.6 of this Part.
Historical Note
Sec. renum. 5.10, new added by renum. And amd. 5.7, filed Sept.
18, 1985; amd. filed July 2, 1993 eff. July 2, 1993. Amended (a), (b).
Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended (a),
(b) and (c).
5.9 Cancellation of license or temporary permits for
failure to work.
(a) The
license or temporary permit of a port watchman shall be cancelled if said
person fails to work at least 200 hours during a 12-month period commencing
each October 1< st >, unless said failure to work resulted from ill
health, physical injury, military service or other good cause.
(b) A person whose license or temporary
permit is cancelled for failing to meet the work requirements may reapply for a
license, provided that at least one year has expired from the date of
cancellation of the license or temporary permit. The one-year period may be
waived by the commission for good cause shown.
Historical Note
Sec. renum. 5.11, new filed Sept. 18, 1985.
Sec. amds filed July 15, 2004 eff. July 15,
2004.
5.10 Training and fitness standards.
(a) No temporary permit or license shall be
issued to a security officer or supervisory security officer unless he shall
have satisfactorily completed a course of training for security officers and
supervisory security officers given by the commission or under the supervision
of the commission.
Any course given by employers of security officers or
supervisory security officers shall include instruction with respect to
protection of cargo, asset protection, human and public relations, report
writing, communications, patrols and fixed posts, physical security, crime
prevention, fire protection, life safety, criminal law and criminal liability,
civil law and civil liability, ethics, professional conduct, investigations,
First Aid/C.P.R./AED, hazmat, waterfront security officer rules &
regulations, terrorism, law enforcement agencies (F.B.I., State Police, Coast
Guard, Customs & Immigrations), Maritime Security Act of 2002, terminal
safety & awareness, USMX and/or NYSA orientation and such other topics as
may be specified from time to time by the commission, and shall include
instruction by commission personnel as the commission shall require.
(b) To maintain the standards of
mental fitness prescribed by the commission, every licensed security officer or
supervisory security officer, or holder of a temporary permit, once every year
shall complete an additional course of training given or approved by the
commission.
(c) This section shall
not be applicable to management security officers licensed under section 5.1
(a) (3) of this part.
Historical Note
Sec. amd. filed Oct. 17, 1966; renum. 5.12, new added by renum.
And amd. 5.8, filed Sept. 18, 1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended (a),
(b) and (c).
5.11 Expiration of license at age 70.
(a) All licenses or temporary permits to act
as a security officer or supervisory security officer shall expire at the end
of the calendar year in which the licensee or the holder of the permit reaches
70 years of age, unless a waiver is obtained pursuant to section 5.7 of this
part.
(b) This section shall not be
applicable to a management security officer licensed under section 5.1 (a) (3)
of this Part.
Historical Note
Sec. amd. filed Sept. 10, 1971; renum. 5.13, new added by
renum. And amd. 5.9, filed Sept. 18, 1985.
Sec. amds filed July 15, 2004 eff. July 15,
2004.
5.12 Licenses and other official identification.
(a) Upon the approval of the
application, the commission will issue a license to the applicant. Licenses of
inland security officers, inland supervisory security officers and management
security officers will be limited to employment by the sponsoring
employer.
(b) A badge will be
issued, or replaced, by the commission to each licensee and holder of a
temporary permit, except a management security officer licensed under section
5.1 (a) (3) of this Part, upon payment of a $ 10.00 deposit. All badges shall
be issued by and remain the property of the commission. The badge will be worn
by each licensee and holder of a temporary permit on the outer garment on the
left chest so as to be clearly visible at all times during his tour of duty.
Under special circumstances, upon application to the commission by the
employer, the requirement to wear a badge while on duty may be
waived.
(c) Any licensee or holder
of a temporary permit who, without good cause, does not work as a security
officer or supervisory security officer for at least three calendar months
shall deposit the badge or temporary badge issued him with the commission for
safekeeping. A badge or temporary badge will be re-issued to such person upon
their return to work as a security officer or supervisory security
officer.
(d) The loss of such badge
or temporary badge shall be reported by the licensee or holder of a temporary
permit to the commission immediately after the loss. Upon proof by affidavit of
such loss, a new badge or temporary badge will be issued by the
commission.
(e) Each licensee or
holder of a temporary permit shall return his license or temporary permit and
badge to the commission upon the surrender, suspension, revocation or other
termination of such license or permit. Upon such return of the badge, the
deposit will be refunded.
Historical Note
Sec. renum. 5.14, new added by renum. 5.10, filed Sept. 18,
1985, amds. Filed: Oct. 5, 1988; July 2, 1993 eff. July 2, 1993. Amended
(a).
Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended
Amended (a), (b), (c), (d) and (e).
5.13 Security officer's and supervisory security
officer's uniform.
Every security officer and supervisory security officer shall
wear only uniforms approved by the Waterfront Commission as outlined in section
5.19 (42) (a) & (b) of this part.
Historical Note
Sec. amd. filed Oct. 17, 1966; renum. 5.15, new added by renum.
5.11, filed Sept. 18, 1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.14 Information to be Furnished by employers.
Each employer of port watchmen or any duly authorized agent for
such employer shall upon request furnish the commission with information as to
name, waterfront commission number, social security number, seniority
classification, time place, hours and days worked, and the compensation
therefore for each port watchman employed by such employer. Each employer shall
maintain appropriate books and records to comply with the requirements of this
section, Such books and records shall be preserved for a period of five years
and be open for inspection by the commission.
Historical Note
Sec. renum. 5.16, new added by renum. 5.12, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.15 Records to be maintained by security officers and
supervisory security officers.
(a) Each security officer and supervisory
security officer shall keep in a memorandum book an accurate record of each
tour of duty. Such book shall be furnished by and remain the property of the
commission and shall be returned to the commission when completed or upon the
surrender, suspension or termination of the license or temporary
permit.
(b) Such memorandum book
shall be carried by every security officer and supervisory security officer
while on duty. All entries in such memorandum book shall be legible, written in
English and in ink.
(c) Before
performing each tour of duty, all security officers and supervisory security
officers shall enter in their memorandum books their employer, the date, the
tour of duty, the pier and their assignment at such pier, and the time of
arrival at their post. During the tour they shall enter a full and accurate
record of any thefts or attempted thefts of cargo and unusual occurrences
during their tour of duty, indicating the time when and to whom reports of
these incidents have been made. If there have been no such incidents, the
security officer or supervisor security officer shall write "Nothing to report"
at the end of the tour of duty. At the end of the tour of duty, the security
officer shall also enter the time out and sign his full name and license
number.
(d) All such books shall be
available for inspection by the commission at anytime.
Historical Note
Sec. renum. 5.17, new added by renum. 5.13, filed Sept. 18,
1985; amd. filed July 2, 1993 eff. July 2, 1993. Sec. amds filed July 15, 2004
eff. July 15, 2004. Amended (a), (b) and (c).
5.16 Security officer's and supervisory security
officer's log.
The commission shall furnish a log for each pier or waterfront
terminal which shall remain the property of the commission and be kept in the
custody of the security officer or supervisory security officer assigned to the
gate who shall be responsible for its safekeeping, or in such other place as
may be authorized by the commission. Every security officer or supervisory
security officer, upon entering or leaving the pier or terminal, shall enter in
such log his signature, license number, time in or time out and such further
information as may be required by the commission. All such logs shall be
available for inspection by the commission at any time. In lieu of such a log,
the commission may, in its discretion, authorize, at any particular pier or
waterfront terminal, the use of any mechanical or electrical instrument or
device which provides the information required by this section and which shall
be deemed the equivalent of a log for the purpose of this section (except that
its ownership shall not be in the commission unless such instrument is
originally furnished by the commission).
Historical Note
Sec. renum. 5.18, new added by renum. 5.14, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.17 Gate vehicle books and identification check.
(a) In addition to any books or
records required by the commission to be maintained by security officers and
supervisory security officers, every security officer or supervisory security
officer assigned to a gate or to guard an entrance or exit to any pier or other
waterfront terminal shall maintain a "gate vehicle book" or other record to be
furnished or approved by the commission, in which shall be recorded, the names
of all occupants of a vehicle entering the gate, upon the security officer's or
supervisory security officer's viewing of a photo identification of each
occupant, and the license plate and gate pass numbers, if any, of all vehicles
and trailers entering and leaving; except, with respect to the following class
of vehicles, only a photo identification check of the vehicle's occupants is
necessary:
(1) Motor vehicles owned, leased
or operated by the pier or terminal operator or any licensed stevedore
performing services on the pier or terminal;
(2) Motor vehicles owned, leased or operated
by the pier or terminal operator or a licensed stevedore performing services on
the pier or terminal, where a specified parking area has been provided for such
persons and the employer maintains an identification list of all such motor
vehicles or has provided a sticker or other means of identification to be
affixed to all such motor vehicles;
(3) Motor vehicles on the pier or terminal or
aboard vessels, and passengers embarking or disembarking from vessels;
or
(4) Motor vehicles carrying law
enforcement officers or other government officials.
(b) All such gate vehicle records furnished
by the commission shall remain the property of the commission and shall be
available for inspection by the commission at any time; provided however, such
a gate vehicle book or record may be furnished by the terminal operator, and
shall remain its property, if it is in a form approved by the commission, kept
as a permanent record for a period of five years from the date of the last
entry therein and it is available for inspection by the commission at any time.
Historical Note
Sec. amds. Filed: Oct. 17, 1966; Sept. 10, 1971; renum. 5.19,
new added by renum. 5.15, Filed Sept. 18, 1985; amd. filed July 2, 1993 eff.
July 2, 1993. Amended (b).
Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended
(a).
5.18 Reports to be furnished by port watchmen.
Every security officer, supervisory security officer, or
management security officer who has the overall supervision of the protection
of cargo on a pier or waterfront terminal, shall immediately report to the
commission any theft or attempted theft.
Historical Note
Sec. renum. 5.20, new added by renum. 5.16, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.19 Standards of conduct.
(a) Any license or temporary permit issued to
a port watchman may be revoked or suspended for such periods as the commission
deems in the public interest, or the licensee reprimanded for any act or
conduct in violation of the act or these regulations. Every port watchman is
responsible for and subject to these rules and any breach of these rules may
result in revocation or suspension of any temporary permit or
license.
(b) Among other things,
failure by a port watchman to adhere to the following standards of conduct and
any terms or conditions of his license or temporary permit, will be considered
by the commission in determining whether the license or temporary permit should
be revoked or suspended. Every port watchman shall:
GENERAL REQUIREMENTS
(1) Have in his possession at all times while
on duty his license or temporary permit;
(2) Wear his Waterfront Commission uniform as
required by these regulations; and only in the performance of his duties as a
port watchman;
(3) Wear a cap or
safety helmet as required by these regulations;
(4) Before completing his tour of duty,
submit to his immediate supervisor a detailed written report of any theft or
attempted theft of cargo or suspicious activity which comes to his attention
during such tour;
(5) Remain at his
assigned post, except when his duties as a port watchman require otherwise or
unless otherwise authorized by his supervisor;
(6) Be in a sober condition and refrain from
consuming any intoxicating beverage while on duty;
(7) Remain awake while on duty;
(8) Refrain from smoking or carrying lighted
cigarettes, cigars or pipes in prohibited areas;
(9) While on duty, comply with any special
requirements of his license or temporary permit, to meet the physical fitness
standards of Section 5.6 of this Part;
(10) While assigned to guard an entrance or
exit to any pier or waterfront terminal, check and collect passes from all
trucks leaving the pier or terminal where gate passes are issued on such pier
or terminal;
(11) While assigned to
guard an entrance or exit to any pier or waterfront terminal, examine any motor
vehicle and its contents where there is reasonable ground to believe that such
motor vehicle is carrying merchandise from the pier or terminal without
authority;
(12) Perform the duties
assigned to him in a diligent, conscientious and careful manner;
(13) Keep and maintain his memorandum book as
required by these regulations;
(14)
Know the location and operation of fire alarms and fire fighting equipment, the
location of emergency exits, telephones, first aid stations, information booth,
key stations, the names and telephone numbers of police, fire department,
hospital and ambulance services;
(15) Report any on-the-job injuries
immediately;
(16) Record all
security violations and safety hazards observed in their memorandum book, the
Waterfront Commission log books or an other designated Waterfront Commission
report forms;
(17) Be at their post
ready to commence their duties at the scheduled time; a security officer is not
required to arrive earlier, and should not arrive later, but should arrive at
the scheduled time;
(18) Not accept
relief by another security officer who is unfit to assume the post by reasons
of intoxication, breath smelling of liquor, illness or other condition which
might prevent him from performing the required duties. If while on duty a
security officer's relief arrives in what appears to be an intoxicated
condition, the security officer must contact his supervisor and explain the
situation. The security officer on duty must make the necessary notifications
and request assistance to insure that after the intoxicated employee is denied
access to the post that he does not endanger himself or the general
public;
(19) While on duty, stay on
the shift until properly relieved or excused, and a security officers must not
remain at their post once relieved unless requested by a supervisor or company
representative;
(20) Refrain from
the use of profane, indecent or abusive language or gestures;
(21) Refrain from acting in a rude or
boisterous manner;
(22) Not ask for
or receive any tips or other gratuities;
(23) Not discuss information of any kind
concerning his duty assignment with anyone except his relief,
supervisor or recognized company representative or representatives of the
Waterfront Commission;
(24) Not
bring to or use on post, newspapers, magazines, radio, recorder/playback
device, or a television set; unless otherwise authorized by the
employer;
(25) Not loiter or lie
down while on duty;
(26) Not
prepare, initiate or submit false reports;
(27) Not use any company-owned equipment
without having obtained prior approval nor permit any other unauthorized person
to do so;
(28) Not loan facility
keys, which are entrusted to his care, to any person not authorized by the
company to possess them;
(29) Not
permit himself to be visited by friends, acquaintances, or relatives while on
duty;
(30) Not steal or engage in
any form of theft or pilferage;
(31) Not cause destruction to or loss of
company or facility property;
(32)
Not gamble on duty;
(33) Not report
to work under the influence of alcohol or drugs;
(34) Not possess or use alcohol or drugs
while on duty;
(35) Not engage in
immoral or indecent behavior;
(36)
Not carry a weapon while on duty unless authorized;
(37) Not misuse the badge, uniform or
identification;
OBEY LAWS
(38) Set an
example by obeying all employer's rules and policies, Rules and Regulations of
the Waterfront Commission, as well as the laws of the United States, State,
County, City or Municipality;
(39)
In the case of a serious unlawful incident (i.e. assault, breaking and
entering, larceny, etc.) it may be necessary for an arrest warrant to be
obtained against the individual or individuals from the appropriate
jurisdiction.
NO PORT WATCHMAN will obtain or sign such an arrest
warrant. (It is the security officer's responsibility to immediately
notify the company or the police authorities, and his/her immediate supervisor
of such incident.) It is the responsibility of the COMPANY'S MANAGEMENT STAFF
TO OBTAIN AN ARREST WARRANT. Security officers will provide all information of
which they are aware relating to the incident to the Waterfront Commission. The
information provided shall be factual in order for the company to make the
proper decision concerning an arrest warrant;
APPEARANCE
(40) When in uniform, be neat and clean in
appearance, and when on duty, the security officer shall wear the complete
uniform as prescribed by the Waterfront Commission. Proper neatness and
cleanliness in appearance means that:
(a)
Leather and brass will be polished;
(b) Shoes will be shined;
(c) Hair will be neatly cut and combed and
hair should be worn so as to prevent it from standing out when the cap or hat
is worn, or extending below the top of shirt or jacket collar; reasonable
accommodation on the basis of religious beliefs or for substantiated medical
reasons will be considered on a case-by-case basis. Exceptions for medically
approved dermatological reasons require a statement from a physician.
Management may periodically request certification that the medical condition
still exists;
(d) The uniform will
be pressed. It may be cleaned by washing or dry cleaning, depending on employee
preference;
(e) The uniform hat or
cap will be worn squarely on the head;
(f) The belt will be worn through the belt
loops of the uniform trousers; and
(g) No insignia, emblems, buttons, or items
other than those issued or authorized by Waterfront Commission will be worn on
or with the uniform;
COURTESY
(41) Act courteously to all persons he
encounters; the security officer usually is the first contact that a visitor
has with a company, the manner in which the Security Officer greets the
visitor, answers questions and provides necessary directions or guidance
creates the important first impression.
THE UNIFORM
(42)
Only wear waterfront commission
approved uniforms except when, upon request of an employer, the
Commission authorizes differently. The uniform is the basic item of the
security officer. It should be worn with dignity and pride. The uniform
identifies the security officer as a figure of authority.
(a) The security Officer's uniform consists
of:
(1) Shirts - Blue (Navy) or White - long
and short sleeve;
(2) Winter Jacket
- Orange with High-Visibility;
(3)
Windbreaker - Orange with High-Visibility
(4) Vest - Blue (Navy) with Green Florescent
outline;
(5) Pants/Trousers - Blue
(Navy);
(6) Hat - Baseball Cap Blue
(Navy) with Waterfront Commission patch;
(7) Watch Hat - Wool - Blue (Navy) - to be
worn for outside duty in cool or cold climates;
(8) Belt - Black and must be worn within the
belt loops of the uniform trousers;
(9) Boots or Shoes - Black;
(10) Flashlight, Standard Maglight;
(11) Badge - only the Waterfront Commission
Badge which must be worn on the outmost garment; and
(12) Non-Issue Items: Socks - Black solid
color socks will be worn with the uniform. If a person, because of a foot
problem, must wear white socks, they will obtain those with white feet and dark
tops; and
(13) With the approval of
the Commission, where deemed appropriated, a blue (dark) jump suit may be worn.
Such a jump suit must be worn in conjunction with a safety vest.
(b) The uniform shall not be worn,
complete or in part, while off duty except as necessary to commute to and from
the assigned place of duty.
Historical Note
Sec. renum. 5.21, new added by renum. 5.17, filed Sept. 18,
1985; amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended (a)
and (b) (2), (4) and (5), added (b) (14) - (42).
5.20 Interfering with the duties of port
watchmen.
No person shall, without justification or excuse in law,
directly or indirectly, intimidate or inflict any injury, damage, harm, loss or
economic reprisal upon any port watchman in the performance or discharge of his
duties or obligations.
Historical Note
Sec. renum. 5.22, new added by renum. 5.18, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
HIRING OF SECURITY OFFICERS AND SUPERVISORY SECURITY
OFFICERS
5.21 Construction.
(a) Sections 5.21 through 5.34 of this Part,
inclusive, are designed to effectuate the purposes of the Waterfront Commission
Act, as amended and supplemented and to prevent the circumvention and evasion
thereof. In particular, these sections are designed to improve the conditions
under which security officers and supervisory security officers are employed,
to eliminate irregularity of employment, and in accordance with the public
policies of the States of New York and New Jersey, and to provide fair and
equal employment opportunities by establishing a systematic method of hiring
and providing adequate information to port watchmen as to availability of
employment opportunities and to waterfront employers as to the available of
port watchmen within the port.
(b)
Sections 5.21 through 5.34 of this Part, inclusive are not designed and should
not be construed to be in conflict with the provisions of article XV of the Act
Historical Note
Sec. renum. 5.23, new added by renum. 5.19, filed Sept. 18,
1985; amd. filed July 2, 1993 eff. July 2, 1993. Amended (b).
Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended
(a).
5.22 Definitions.
(a)
Regular Security Officers
shall mean security officers or supervisory security officers who are entitled
to receive first priority of employment by a particular employer;
(b)
Extra Security Officers
shall mean security officers or supervisory security officers who are entitled
to receive employment by a particular employer after regular available security
officers are employed by that employer.
(c)
Casual Security Officers
shall mean any regular or extra security officers or supervisory security
officers who are not employed by their regular employer on a particular day.
Historical Note
Sec. renum. 5.24, new added by renum. 5.20, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004. Amended (a),
(b) and (c).
5.23 Employers subject to regulation.
Any person, including carriers of freight by water and
stevedores, any parent or subsidy thereof, or any person who has a contract
with such carrier of freight by water or stevedore to provide or to perform
services as a guardian or protector of property on any pier or waterfront
terminal, is subject to the provisions of section 5.21 through 5.34 of this
Part, inclusive, except when employing inland security officers.
Historical Note
Sec. renum. 5.25, new added by renum. And amd. 5.21, filed
Sept. 18, 1985; amd. filed July 2, 1993 eff. July 2, 1993.
5.24 Establishment of security officer lists.
(a) Any employer may, in accordance
with sections 5.35 through 5.41 of this Part, inclusive, file lists of his
regular security officers and supervisory security officers and of his extra
security officers and supervisory security officers. Each list shall include
the name, license number and seniority classification of each individual
listed.
(b) Any name on any regular
list shall not appear on any other regular list filed with the
commission.
(c) If such lists are
accepted by the commission, copies thereof shall be maintained at the
appropriate employment information center.
Historical Note
Sec. renum. 5.26, new added by renum. And amd. 5.22, filed
Sept. 18, 1985; amd. filed July 2, 1993 eff. July 2, 1993. Amended (c).
Sec. amds filed July 15, 2004 eff. July 15,
2004.
5.25 Additions to security officer lists.
An employer may file on commission forms to add a security
officer or supervisory security officer to a regular or extra list or fill a
vacancy thereon from employees who are available and qualified, in accordance
with section 5.35 through 5.41 of this Part, inclusive.
Historical Note
Sec. renum. 5.27, new added by renum. and Amd. 5.23, filed
Sept. 18, 1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.26 Rejection of lists, replacements and
additions.
The commission may reject any list, in whole or in part, or any
replacement or addition to any list, if it determines that such list or part
thereof, or any replacement or addition thereto, was not made in conformance
with this Part or in accord with the Act.
Historical Note
Sec. renum. 5.28, new added by renum. 5.24, filed Sept. 18,
1985; amd. filed July 2, 1993 eff. July 2, 1993.
5.27 Removal from lists.
Any person may be removed from a list:
(a) At their own request:
(b) At the request of the employer who
applied for his listing:
(c) Upon
the suspension or revocation of his license:
(d) Where the commission determines that he
was not listed in conformance with this Part, or that such removal will further
the purposes of the Act.
Historical Note
Sec. renum. 5.29, new added by renum. and amd. 5.25, filed
Sept. 18, 1985; amd. filed July 2, 1993 eff. July 2, 1993. Amended (c) -
(e).
Sec. amds filed July 15, 2004 eff. July 15, 2004. Repealed
(e).
5.28 Corrections and restoration to lists.
Any person eligible for inclusion in any list filed with the
commission who was omitted or who was subsequently removed from such list,
pursuant to section 5.27 of this Part, may be included or restored to such list
upon application by the employer if the commission determines that sufficient
cause exists for such inclusion or restoration.
Historical Note
Sec. renum. 5.30, new added by renum. and Amd. 5.26, filed
Sept. 18, 1985.
5.29 Reporting employment opportunities.
Each employer shall each day provide the appropriate employment
information center with general information of employment opportunities
expected to be available the following work day for casual security officers.
Such information shall be maintained in the appropriate employment information
center.
Historical Note
Sec. renum. 5.31, new added by renum. 5.27, filed Sept. 18,
1985; amd. filed July 2, 1993 eff. July 2, 1993. Sec. amds filed July 15, 2004
eff. July 15, 2004.
5.30 Ordering from lists.
An employer may employ security officers and supervisory
security officer from his regular and extra security officer lists filed with
the commission in accordance with sections 5.35 through 5.41 of this part,
inclusive.
Historical Note
Sec. renum. 5.32, new added by renum. and amd. 5.28, filed
Sept. 18, 1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.31 Filing employment reports.
Each employer shall file on Tuesday of each week with the
appropriate employment information center, on forms furnished or approved by
the commission, an employment report, setting forth for each pier or terminal
the names, license numbers and dates and hours of employment of all security
officers and supervisory security officers hired during the preceding week
ending on twelve (12) midnight on Sunday, and indicating thereon those security
officers hired as casual security officers.
Historical Note
Sec. renum. 5.33, new added by renum. 5.29, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.32 Employment of casual security officers.
(a) All casual security officers (as
defined by section 5.22 of this part) must be employed through the appropriate
employment information center.
(b)
A casual security officer may notify the appropriate employment information
center prior to 1 p.m. of his availability for employment for a 4:00 p.m. to
12:00 midnight tour that day, and prior to 3:00 p.m. of his availability for
employment for a 12:00 midnight to 8:00 a.m. or an 8:00 a.m. to 4:00 p.m. tour
the following day. Between 1:00 p.m. and 2:30 p.m. a representative of an
employer shall select in accordance with sections 5.35 through 5.41 of this
Part, inclusive, casual security officers for the 4:00 p.m. to 12:00 midnight
tour that day and between 3:00 p.m. and 5:00 p.m. casual security officers for
the 12:00 midnight to 8:00 a.m. or 8:00 a.m. to 4:00 p.m. tours the following
day, from among casual security officers who have previously notified the
appropriate employment information center of their availability.
(c) A casual security officer may notify the
appropriate employment information center from 12:00 noon to 3:00 p.m. on
Friday of his availability for employment on Saturday, Sunday or the 12:00
midnight to 8:00 a.m. tours on Monday. After 3:00 p.m. on Friday a
representative of an employer shall select, in accordance with sections 5.35 to
5.41 of this part, inclusive, casual security officers for Saturday, Sunday or
for the 12:00 midnight to 8:00 a.m. or 8:00 a.m. to 4:00 p.m. tours on Monday,
from among casual security officers who have previously notified the
appropriate employment information center of their availability.
(d) If Monday is a holiday, a casual security
Officer may notify the appropriate employment information center from 12:00
noon to 3:00 p.m. on Friday of his or her availability for employment for a
4:00 p.m. to 12:00 midnight tour on Monday or the 12:00 midnight to 8:00 a.m.
or 8:00 a.m. to 4:00 p.m. tours on Tuesday, For holidays falling on other
weekdays, a casual security officer may notify the appropriate employment
center prior to 3:00 p.m. on the day prior to the holiday of his availability
for employment on the holiday or for the 12:00 midnight to 8:00 a.m. or 8:00
a.m. to 4:00 p.m. tours for the day after the holiday. After 3:00 p.m. on
Friday, if the holiday is on Monday or after 3:00 p.m. on the day before the
holiday, if the holiday falls on another weekday, a representative of an
employer shall select, in accordance with sections 5.35 to 5.41 of this Part,
inclusive, casual security officers for employment on the holiday for the 12:00
midnight to 8:00 a.m. or 8:00 a.m. to 4:00 p.m. tours on the day after the
holiday from among the casual security officers who have previously notified
the appropriate employment information center of the availability.
(e) A casual security officer may also make
himself available for work at other times in which case he will be added to the
availability list in proper seniority order for subsequent hiring.
Representatives of employers may select casual security officers for employment
in accordance with sections 5.35 to 5.41 of this Part, inclusive, at other
times to meet unforeseen needs.
Historical Note
Sec. renum. 5.34, new added by renum. and amd. 5.30, filed
Sept. 18, 1985; repealed, New filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed July 15, 2004 eff. July 15,
2004.
5.33 Extension of employment for casual security
officers.
The employer may extend the employment of a casual security
officer on a day-to-day basis to complete his original assignment on successive
days by notifying the appropriate employment information center.
Historical Note
Sec. renum. 5.35, new added by renum. 5.31, filed Sept. 18,
1985; amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.34 Emergency hiring.
When an emergency situation exists which makes it impossible
for an employer to comply with the provisions of these regulations for the
employment of a casual security officer, such employer may employ the casual
security officer without complying with such section, provided he immediately
thereafter notifies, in writing, the appropriate employment center of such
hiring and state in detail the circumstances requiring such emergency hiring
and the name and license number of any casual security officer so
employed.
Historical Note
Sec. renum. 5.36, new added by renum. 5.32, filed Sept. 18,
1985; filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
PRIORITIES
5.35 Construction of priorities.
In accordance with the provisions of Article XV of the
Waterfront Commission Act, the following priorities of employment are designed
to be consistent with the priorities established in the seniority article of
the collective bargaining agreement between the New York Shipping Association
and the Port Police and Guards Union. The listing of these priorities shall not
be construed to limit in any way the right of the parties to the collective
bargaining agreement to alter, modify, amend or otherwise change such
priorities or agree upon any other method for the selection of licensed
employees by way of seniority, experience, or otherwise.
Historical Note
Sec. renum. 5.37, new added by renum. 5.33, filed Sept. 18,
1985; amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.36 Ordering from regular security officer
lists.
Qualified employees from regular security officer lists shall
be selected in accordance with their seniority classification with the
employer.
Historical Note
Sec. renum. 5.38, new added by renum. 5.34, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.37 Ordering from extra security officers lists.
After all individuals on the regular security officer lists are
employed, the company shall employ qualified individuals from the extra
security officer list in accordance with their seniority classification with
the employer.
Historical Note
Sec. renum. 5.39, new added by renum. 5.35, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.38 Selection of casual security officers.
Qualified casual security officers shall be selected in
accordance with their seniority classification in the industry. For purposes of
section 5.31 of this Part, if two or more casual Security Officers have the
same seniority, the casual Security Officer with the lower commission license
number will be entitled to priority in hiring.
Historical Note
Sec. renum. 5.40, new added by renum. 5.36, filed Sept. 18,
1985; amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.39 Additions to regular security officer lists.
Additions to regular security officer lists shall be selected
in the following order from:
(a)
Qualified individuals on the employer's extra security officers list:
or
(b) From available qualified
individuals on the basis of seniority in the industry.
Historical Note
Sec. renum. 5.41, new added by renum. 5.37, filed Sept. 18,
1985.
Sec. amds filed July 15, 2004 eff. July 15,
2004.
5.40 Additions to extra security officer lists.
Additions to extra security officer lists shall be made from
among available qualified individuals on the basis of seniority in the
industry.
Historical Note
Sec. added by renum. 5.38, filed Sept. 18, 1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
5.41 Ordering by special agreement.
Where there exists a special agreement concerning the
preferential order of hiring of security officers or supervisory security
officers, such agreement shall be submitted in writing to the commission by the
parties thereto. If the commission determines that such agreement is not
inconsistent with the laws of the United States, the laws of the States of New
York and New Jersey and the objectives of the Waterfront Commission Act, such
preferential order of hiring may be instituted in the appropriate employment
information centers.
Historical Note
Sec. added by renum. 5.39, filed Sept. 18, 1985.
Sec. amds filed July 15, 2004 eff. July 15, 2004.
PART 6
APPLICATION AND REVOCATION PROCEEDINGS
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
| Section |
| 6.1 |
Opportunity to be heard; institution of
proceedings |
| 6.2 |
Notice of hearing |
| 6.3 |
Service of notice of hearing, orders and
other communications |
| 6.4 |
Personal appearance; representation by
attorney |
| 6.5 |
Hearing officers; assignment of hearings |
| 6.6 |
Hearings to be public; stenographic records
of hearings |
| 6.7 |
Application for adjournment |
| 6.8 |
Amendment of notice of hearing |
| 6.9 |
Conduct of hearing; powers of administrative
judge |
| 6.10 |
Opportunity to testify and cross-examine;
issuance of subpoenas |
| 6.11 |
Affidavits, sworn statements and
interrogatories |
| 6.12 |
Oral arguments; briefs |
| 6.13 |
Administrative judge's report; exceptions to
report |
| 6.14 |
Final determination made by commission |
| 6.15 |
Petition to reopen hearing |
| 6.16 |
Commission orders |
| 6.17 |
Petition for rehearing |
| 6.18 |
Petition for reconsideration |
| 6.19 |
Petition for restoration of license or
registration |
| 6.20 |
Petition for leave to reapply |
Section 6.1 Opportunity to be heard; institution of
proceedings.
(a) The
commission shall not deny any application for a license or registration nor
revoke, cancel or suspend any license or registration without giving the party
in interest an opportunity to be heard.
(b) Proceedings to revoke, cancel or suspend
a license or registration may be instituted by the commission on its own
initiative or on complaint of any person, including any public official or
agency.
6.2 Notice of hearing
The notice of the hearing shall be in writing and shall state
the time and place of and the matters to be considered at the hearing and shall
be served at least 10 days prior to the date of the hearing upon the party in
interest.
6.3 Service of notice of hearing, orders and other
communications.
The notice of hearing and all other notices, orders and
communications from the commission shall be duly served if enclosed in a
properly postpaid wrapper addressed to the person to be notified or
communicated with at the address last given by him in writing to the commission
and deposited, as ordinary mail, in a post office, post-office box, or mail
chute maintained by the United States government, or if such notice, order or
communication addressed to such person is delivered to such address by telegram
or by registered or certified mail or by an employee or agent of the
commission. A certificate by an employee or agent of the commission that such
notice, order or communication has in the regular course of the business of the
commission been duly dispatched or delivered, in a manner authorized by this
section, shall be presumptive evidence of proper service. For the purpose of
calculating the time of notice, service shall be considered effected upon the
date of delivery to such address; provided that, where service is by ordinary
mail, service shall be considered effected the third day after the
mailing.
6.4 Personal appearance; representation by
attorney.
Any party in interest who intends to avail himself of the
opportunity to be heard, shall personally appear on the date set forth in the
notice of hearing or on any adjourned date and shall be prepared to proceed.
Any such party may be represented at the hearing by an attorney who is a member
in good standing of the Bar of the State of New York or the Bar of the State of
New Jersey. Any such attorney shall file a written notice of appearance on a
form furnished by the commission. After an attorney has so appeared, all
further notices, orders and other communications from the commission may be
served upon such attorney and such service shall be deemed to be service upon
the party in interest.
6.5 Hearing officers; assignment of hearings.
Where the commissioners themselves do not conduct a hearing, it
shall be conducted by a hearing officer to be known as an administrative judge
appointed by and directly responsible to the commissioners who shall be an
attorney at law in either the State of New York or New Jersey. Hearings shall
be assigned to a particular administrative judge by the commission or by a
designee of the commission.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.6 Hearings to be public; stenographic records of
hearings.
Unless otherwise ordered by the commission in the public
interest, application and revocation hearings held by the commission shall be
open to the public. Stenographic records of hearings shall be made and
transcripts thereof may be furnished to any person after the conclusion of the
hearing upon payment to the commission of the reproduction costs thereof as
established by section 1.23(f).
6.7 Application for adjournment.
Any application for an adjournment made on or after the date
fixed for hearing shall be made to the administrative judge and shall set forth
in detail the grounds therefor.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.8 Amendment of notice of hearing.
The notice of hearing may be amended upon application by
commission staff counsel to the administrative judge at any time prior to the
conclusion of the hearing. If such application is granted, the administrative
judge may, in his discretion, grant additional time to the party for further
preparation.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.9 Conduct of hearing; powers of administrative
judge.
The administrative judge shall not be bound by common law or
statutory rules of evidence or by technical or formal rules of procedure in the
conduct of hearings. He shall have authority to administer oaths, issue
subpoenas, rule upon offers of evidence and otherwise so regulate the course of
the hearing as to preserve fundamental concepts of fairness and to effectuate
the purposes and provisions of the Act.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.10 Opportunity to testify and cross-examine; issuance
of subpoenas.
A party shall be afforded reasonable opportunity to present
testimony under oath or other evidence relevant and material to the subject
matter of the hearing and to cross-examine any witnesses who testify at such
hearing. At the request of a party, the administrative judge shall issue
subpoenas to compel the attendance of witnesses and the giving of testimony or
production of other evidence upon behalf of such party, provided such party
shall effect his own service.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.11 Affidavits, sworn statements and
interrogatories.
(a) If at the
time of hearing a witness is outside the States of New York or New Jersey or is
deceased, commission counsel or a party may offer as evidence at the hearing an
affidavit or sworn statement of such witness. Such affidavit or sworn statement
shall be admissible into evidence as an exhibit, if the statements therein are
otherwise competent, relevant and material. The administrative judge shall give
the exhibit such weight as the administrative judge, in his discretion,
determines that it warrants in the light of all the evidence.
(b) Where it has been determined that a
witness who is outside the States of New York or New Jersey will voluntarily
answer interrogatories, commission staff counsel or a party may propound
interrogatories to be answered by such witness and the other side shall have
the opportunity to propound cross-interrogatories as prescribed
herein.
(c) The interrogatories and
cross-interrogatories shall be settled and forwarded by the administrative
judge to be answered in writing and subscribed to under oath by such witness.
Upon application to the commission, the commission may make an order providing
for the taking of such witness' oral testimony pursuant to the settled
interrogatories by a person designated by the commission. The expenses of
taking such testimony shall be borne by the applicant therefor unless the
commission provides otherwise.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31,
1974.
6.12 Oral argument; briefs.
Oral argument shall be made only before the administrative
judge and shall be included in the record of the hearing. Briefs as to fact or
law may be received and may be required to be submitted. The administrative
judge may fix the time within which briefs shall be filed. Briefs received
subsequent to such time need not be considered.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.13 Administrative judge's report; exceptions to
report.
Upon the conclusion of a hearing the administrative judge
shall, by written memorandum to the commission, set forth his findings and
recommendations for action by the commission thereon. A copy of such findings
and recommendations shall be served on the parties in interest and furnished to
commission counsel, and each may submit written exceptions thereto and written
argument thereon within 10 days after service of such findings and
recommendations. A copy of the exceptions and arguments shall be served upon
each of the other parties in interest or commission counsel, as the case may
be. Replies to exceptions and argument may be served in like manner within five
days after service of such exceptions and arguments. Unless the commission
grants an extension of time, exceptions, argument or replies submitted after
the prescribed time need not be considered by the commission.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.14 Final determination made by commission.
The record of the hearing, together with the memorandum of the
administrative judge and any exceptions or argument duly submitted, shall be
transmitted to the commission for final determination and order.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.15 Petition to reopen hearing.
After the conclusion of a hearing but prior to the making of an
order by the commission, a hearing may, upon petition and in the discretion of
the administrative judge, be reopened for the presentation of new or additional
evidence. Such petition to reopen the hearing shall state in detail the nature
of the new or additional evidence, together with the reasons for the failure to
submit such evidence prior to the conclusion of the hearing. The commission may
upon its own motion and upon reasonable notice reopen a hearing for the
presentation of new or additional evidence.
Historical Note
Sec. amd. filed Nov. 4, 1974 eff. Oct. 31, 1974.
6.16 Commission orders.
All orders of the commission shall be in writing and shall be
filed with the secretary of the commission who shall cause certified copies
thereof to be served upon the parties.
6.17 Petition for rehearing.
Upon petition, after the making of an order by the commission
following a hearing, rehearing may be granted in the discretion of the
commission. A petition for rehearing shall state in detail the grounds upon
which it is based and shall separately set forth each error of law and fact
alleged to have been made by the commission in its determination, together with
facts and arguments in support thereof. Such petition shall be filed with the
commission not later than 30 days after service of the order of the commission
upon the parties, unless the commission for good cause shown shall otherwise
direct. The commission may upon its own motion grant a rehearing after the
making of an order following a hearing.
6.18 Petition for reconsideration.
Within 90 days after the service of an order of the commission
following a hearing or rehearing, which order shall be considered as a final
determination of the commission in a proceeding for judicial review, the
applicant or respondent may petition the commission to exercise its discretion
to reconsider its determination. Such petition shall be in writing and shall
state in detail the grounds upon which it is based. Any order made by the
commission upon such petition shall not extend any limitation of time imposed
by law to commence a proceeding to review the final determination of the
commission.
Historical Note
Sec. added filed July 10, 1972 eff. immediately.
6.19 Petition for restoration of license or
registration.
(a) Any person
having been issued a temporary permit or registration or permanent license or
registration by the commission and whose temporary permit or registration has
been revoked or annulled by an order of the commission denying an application
for a permanent license or registration after a hearing or rehearing or whose
permanent license or registration has been revoked by order of the commission
after a hearing or rehearing may petition the commission for restoration of his
permit, license or registration. Such petition shall be in writing on a form to
be furnished by the commission and shall be filed with the commission not less
than six months after the final determination of the commission made after the
hearing or rehearing and not more often than once each year following the said
final determination, unless the commission for good cause shown shall otherwise
direct. Any registration, permit or license issued by the commission after a
grant of a petition under this section may be subject to the provisions of
subdivisions (b) through (i) of section 1.21.
(b) No petition for restoration shall be
accepted from any person seeking restoration unless the person is sponsored for
employment by a stevedore or by any person, within the meaning of those terms
contained in the Act, who is an employer of individuals requiring a
registration or a license under the Act, and where proof of sponsorship has
been received by the Commission, prior to submission to the Commission of said
petition, in the form of a letter submitted by the sponsoring employer.
Historical Note
Sec. added filed July 10, 1972 eff. immediately.
Sec. amd. filed May 1, 2007 eff. May 1, 2007.
6.20 Petition for leave to reapply.
Any applicant, not having been issued a temporary permit or
registration, who has been denied a license or registration by order of the
commission after a hearing or rehearing, and who has not been granted leave to
reapply in the said order of denial, may petition the commission for leave to
reapply for such license or registration. Such petition shall be in writing on
a form to be furnished by the commission and shall be filed with the commission
not less than six months after the final determination of the commission made
after the hearing or rehearing and not more often than once each year following
the said final determination, unless the commission for good cause shown shall
otherwise direct. A grant by the commission of a petition submitted under this
section for leave to reapply for inclusion in the "deep-sea" register as a
longshoreman or checker during any period of time the acceptance of such
applications has been suspended under section 5-p of the Act shall not take
effect until such time as the commission shall determine to accept such
applications under said section 5-p and shall not entitle the petitioner to any
preference or priority in obtaining any such application or in having it
processed.
Historical Note
Sec. added filed July 10, 1972 eff. immediately.
PART 7
HIRING REGULATIONS FOR REGISTRANTS
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
GENERAL PROVISIONS
| Section |
| 7.1 |
Construction |
| 7.2 |
Definitions |
| 7.3 |
Employers and employees subject to
regulation |
| 7.4 |
Longshoremen's register |
| EMPLOYEE LISTINGS |
| 7.5 |
Establishment of regular lists |
| 7.6 |
Voluntary gangs |
| 7.7 |
Additions to regular lists |
| 7.8 |
Replacements for voluntary gangs |
| 7.9 |
Rejection of lists, replacements and
additions |
| 7.10 |
Removal of persons from lists; removal of
gangs from register |
| 7.11 |
Corrections and restorations to lists |
| HIRING PROCEDURES |
| 7.12 |
Establishment of telephonic hiring
system |
| 7.13 |
Reporting employment opportunities |
| 7.14 |
Prevalidation ordering from regular
lists |
| 7.15 |
"Quick registration"; weekend casual
checkers; limitations. |
| 7.16 |
Recall of regular and regular-extra
gangs |
| 7.17 |
Ordering of additional gangs |
| 7.18 |
Extension of employment; use, procedure and
prohibited practices |
| 7.19 |
Prior day ordering (PDO) of registrants not
otherwise prevalidated |
| 7.20 |
Obtaining employment information,
availability for employment; hiring |
| (regular working days) |
| 7.21 |
Other Weekday Availability and Hirings |
| 7.22 |
Availability for weekend and holiday
employment; weekend and holiday |
| hirings; obtaining holiday employment information |
| 7.23 |
Reporting absenteeism |
| 7.24 |
Register and Data Base Validation and
Certification |
| REACTIVATED AND NEW PIERS |
| 7.25 |
Notice for establishing regular lists for
reactivated and new piers |
| 7.26 |
Publication of prior lists for reactivated
piers |
| 7.27 |
Regular lists for reactivated piers |
| 7.28 |
Regular lists for new piers |
| PRIORITIES |
| 7.29 |
Construction of priorities |
| 7.30 |
Regular employee lists for reactivated
piers |
| 7.31 |
Regular gang lists for reactivated
piers |
| 7.32 |
Regular employee lists for new piers |
| 7.33 |
Regular gang lists for new piers |
| 7.34 |
Replacements and additions to regular
employee lists |
| 7.35 |
Replacements and additions to checker and
clerk lists |
| 7.36 |
Replacements in gangs and formation of new
gangs |
| 7.37 |
Replacements in voluntary gangs |
| 7.38 |
Ordering employees at the centers through
the THEIC |
| 7.39 |
Ordering by special agreement |
| 7.40 |
Sections |
| MAINTAINING AND AVAILABILITY OF RECORDS:
MAINTAINING |
| 7.41 |
Availability of documents, tapes, disks and
other data; data base to |
| reflect commission eligibility status |
| 7.42 |
Recording of Telephone Calls; Monitoring by
Commission |
| PROHIBITED CONDUCT |
| 7.43 |
Unauthorized hiring and solicitation of
employment |
| 7.44 |
Unauthorized participation in hiring |
| 7.45 |
Unauthorized conduct in employment
information centers |
| 7.46 |
Tampering with THS |
GENERAL PROVISIONS
Section 7.1 Construction.
(a) This Part is designed to effectuate the
purposes of the Act, as amended and supplemented, and to prevent the
circumvention and evasion thereof. In particular, it is designed to improve the
conditions under which waterfront labor is employed, to eliminate irregularity
of employment, fear and insecurity, and, in accordance with the public policies
of the States of New York and New Jersey, to provide fair and equal employment
opportunities, by establishing a systematic method of hiring and providing
adequate information to waterfront workers as to the availability of employment
opportunities and to waterfront employers as to the available labor supply
within the port.
(b) This Part
contains provisions which give waterfront employers the privilege of ordering
employees for hire without the personal appearance of such employees at the
commission employment information centers, on condition that the employers file
with the commission lists of persons they regularly employ on their piers and
follow the procedures set forth in this Part for the ordering of their regular
and casual employees.
(c) This Part
is not designed and should not be construed to be in conflict with the
provisions of article XV of the Act.
7.2 Definitions.
As used in this Part:
(a) Regular employees shall mean employees
who, as individuals, are entitled to receive first priority of employment at a
particular pier or waterfront terminal or with a particular employer.
(b) Supervisory employees shall mean
employees who lead, manage and/or supervise other employees, and shall include
but are not limited to foremen, assistant foremen, hatch foremen (also known as
hatch bosses), dock foremen, stevedore foremen and gangwaymen. Supervisory
employees at passenger ship terminals shall include clerk/checker dock bosses,
chief clerks, baggage masters and/or those who oversee and direct checkers in
the accounting and positioning of baggage for loading and/or
discharge.
(c) Gang shall mean a
group of longshoremen constituted into a working unit.
(d) Regular gang shall mean a gang which is
entitled to receive first priority of employment at a particular pier or
waterfront terminal.
(e)
Regular-extra gang shall mean a gang which is entitled to receive employment at
a particular pier or waterfront terminal after available regular gangs have
been employed.
(f) Extra gang shall
mean a regular or regular-extra gang not employed on a particular day by the
employer listing it as a regular or regular-extra gang.
(g) Voluntary gang shall mean a gang
established by the commission on its own initiative, where, in its opinion,
such action will further the purposes of the Act.
(h) Section shall mean a geographical
division of the port.
(i) Borough
or area shall mean a geographical division of the port consisting of one or
more sections.
(j) New pier shall
mean any pier or terminal which has not regularly been in operation for the
movement of waterborne freight within three calendar years prior to its
opening.
(k) Reactivated pier shall
mean any pier or terminal which has been in operation for the movement of
waterborne freight within three calendar years of its reopening, including a
newly constructed pier or terminal which has replaced one or more piers or
terminals.
(l) Telecommunications
system controller (TSC) shall mean a natural person, who is employed by the New
York Shipping Association, Inc. and the International Longshoremen's
Association, or by a joint board of the New York Shipping Association, Inc. and
the International Longshoremen's Association, and who participates in the
operation of the telecommunications hiring system (THS).
(m) Workday shall mean Monday through Sunday,
for the purposes of the hiring procedures.
(n) Regular working day shall mean Monday
through Friday [or Monday through Saturday, if hiring procedures are
implemented which include Saturday as a "regular work day" in accordance with
Section 7.19 of this Part], exclusive of holidays, for the purpose of the
hiring procedures.
Historical Note
Sec. amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed November 24, 2004 eff. November 24, 2004. Added
(l) and (m).
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
Sec. amd. filed July 13, 2012 eff. July 13,
2012.
7.3 Employers and employees subject to
regulation.
Any person who employs a person included in the "deepsea"
register to perform work in his registered capacity and any person included in
the "deep-sea" register are subject to the provisions of this Part.
7.4 Longshoremen's register.
The longshoremen's register, as referred to in this Part, only
applies to the "deep-sea" register.
EMPLOYEE LISTINGS
7.5 Establishment of regular lists.
(a) Any employer may, in accordance with
section 7.29 through 7.40 of this part, inclusive, file lists on commission
forms designating the pier or waterfront terminal for such list, for:
(1) regular checkers and clerks, terminal
labor, drivers, coopers, marine carpenters, maintenance men and other
classifications of regular employees and supervisory employees; and
(2) regular and regular extra
gangs.
(b) An employer
may employ persons as supervisory employees only if such persons are first made
part of a regular supervisory employee list. No person shall be added to a
regular supervisory employee list unless:
(1)
the selecting employer submits in writing to the commission a detailed,
reasonable basis for the employer's belief that the selected employee best
exhibits the capability to lead, manage and/or supervise other employees, which
shall be the employer's independent determination, not based solely or
primarily on the consultation with and/or input of the affected Local, the
International Longshoremen's Association, and/or any other affected labor
organization representing longshoremen for the purposes of collective
bargaining; and
(2) the selecting
employer certifies that the employer's selection of the person as a supervisory
employee was based on the employer's independent determination, not based
solely or primarily on the consultation with and/or input of the affected
Local, the International Longshoremen's Association, and/or any other affected
labor organization representing longshoremen for the purposes of collective
bargaining, and that the employer has not received any benefit and/or
consideration from any person for the purpose of directly or indirectly
influencing the employer's selection of the supervisory employee.
(c) For a period of five (5)
years, any employer selecting a person to be added to supervisory employer list
shall maintain any and all records evidencing the person's capabilities to
lead, manage and/or supervise other employees, and any and all records
concerning the employer's consultation with and/or input from the affected
Local, the International Longshoremen's Association, and/or any other affected
labor organization representing longshoremen for the purposes of collective
bargaining, regarding the person's capabilities to lead, manage and/or
supervise other employees.
(d)
Unless a variance is granted by the commission, any name on any such list shall
not appear on any other list filed with the commission, except with respect to
supervisory employees whose name may appear on both a supervisory employee list
and on the gang list in which they lead, manage and/or supervise other
employees. No list shall contain names of persons to be employed at more than
one pier or waterfront terminal unless a variance is granted by the
Commission.
(e) If such lists are
accepted by the commission, copies thereof shall be conspicuously posted and
maintained by the employer on a bulletin board at the pier or terminal.
Historical Note
Sec. amd. filed July 13, 2012 eff. July 13,
2012.
7.6 Voluntary gangs.
Voluntary gangs may be established and included in the
commission's register of gangs.
7.7 Additions to regular lists.
(a) Before an employer shall add a gang to or
fill a vacancy on a regular or regular-extra gang list or fill a vacancy on or
enlarge a regular list, the employer shall notify an employment information
center on commission forms and post a copy thereof on the pier or terminal
concerned for a period of not less than seven days. The commission shall also
post a notice of such job opportunity in each employment information
center.
(b) Any prospective
employee seeking such listing shall report to the employer's hiring agent or
pier superintendent at the pier or terminal where the vacancy exists and apply
on an application form supplied by the employer and approved by the commission.
At the end of the seven-day period of posting, the employer shall forward to
the commission copies of all applications received during that period, together
with a commission form upon which shall be entered the names and seniority
classifications of all persons who applied during that period and a
certification by the employer's hiring agent to the effect that all persons who
sought such listing were furnished applications and that all applications
received have been forwarded to the commission.
(c) All applications received by the employer
after the seven-day period of posting shall be forwarded immediately to the
commission, together with a similar listing and certification. At the time of
forwarding applications to the commission, the employer shall also post at the
pier or waterfront terminal copies of the forms listing the applicants. Copies
of the forms listing the applicants shall also be posted in the appropriate
employment information center by the commission. The employer may, after the
seven-day period of posting, file to add a gang or fill a vacancy or add to a
list from job applicants who have applied for the particular job opportunity
contained in the notice and who are qualified and able to perform the duties of
the job, in accordance with sections 7.29 through 7.40, inclusive, certifying
compliance with the pier posting requirements of this section. The employer
shall post at the pier or waterfront terminal for a period of 30 days from the
date of filing the names of all persons selected. The commission shall also
post for a similar period of 30 days in the appropriate employment information
center the names of all such persons selected. Such selections may only receive
permanent approval by the commission after the expiration of the 30-day posting
period.
(d) The provisions of this
section shall not apply where an employer makes his selection from persons
properly listed on any regular list previously filed with the commission for
the particular pier or waterfront terminal pursuant to section 7.5, provided
the employer:
1. makes his selection in
accordance with sections 7.29 through 7.40, inclusive, and
2. files his selections at the appropriate
employment information center on forms furnished by the commission.
3. posts at the pier or waterfront terminal
for a period of 30 days the names of all such persons selected. The commission
shall also post for a period of 30 days in the appropriate employment
information center the names of all such persons selected. Such selections may
only receive permanent approval by the commission after the expiration of the
30-day posting period.
7.8 Replacements for voluntary gangs.
Before a vacancy may be filled in a voluntary gang, the foreman
of such gang shall notify an employment information center on commission forms.
The commission shall post a notice of such job opportunity in each employment
information center for a period of not less than one week. Any person seeking
such listing shall apply on commission forms through an employment information
center. After the posting for one week, the commission shall forward all such
job applications to the foreman of the gang. Such vacancy shall be filled by
written request signed by a majority of the members of the gang from such job
applications in accordance with section 7.29 through 7.40, inclusive.
7.9 Rejection of lists, replacements and
additions.
The commission may reject any list, in whole or in part, or any
replacement or addition to any list, if it determines that such list, or part
thereof, or any replacement or addition thereto, was not made in conformance
with this Part, or in accord with the Act.
7.10 Removal of persons from lists; removal of gangs
from register.
(a) Any person
may be removed from a list:
1. at his own
request;
2. at the request of the
employer who applied for his listing;
3. for good cause upon the written request of
the majority of the members of a voluntary gang;
4. upon his suspension, revocation or other
removal from the longshoremen's register for a period of more than thirty (30)
days. A person so removed may be reinstated to his position on said list upon
reinstatement to the longshoremen's register, notwithstanding the provisions of
section 7.7;
5. where the
commission determines that he was not listed in conformance with this Part, or
that such removal will further the purposes of the Act.
(b) A gang may be removed from the register
of gangs:
1. upon the written request of the
majority of its members;
2. upon
the request of the employer who applied for its listing; or
3. where the commission determines that such
gang was not listed in conformance with this Part, or that such removal will
further the purposes of the Act.
7.11 Corrections and restorations to lists.
Any person eligible for inclusion in any list filed with the
commission who was omitted or who was subsequently removed from such list
pursuant to section 7.10 may be included or restored to such list upon
application by the employer if the commission determines that sufficient cause
exists for such inclusion or restoration. Any person removed from a voluntary
gang pursuant to section 7.10 may be restored for good cause to such gang by
the commission.
HIRING PROCEDURES
7.12 Establishment of telephonic hiring system.
In addition to other provisions concerning the ordering of
persons without their personal appearance at an employment information center,
the commission, in the implementation of a telecommunications hiring system
(THS) through which longshoremen and checkers may be hired and accept
employment without any personal appearance, may designate one or more of the
employment information centers it is authorized to establish and maintain under
article VII of the act as a Telephonic Hiring Employment Information Center
(THEIC). Such a THEIC has been established at the commission office located at
333 Thornall Street, Third Floor, Edison, NJ 08837.
Historical Note
Sec. renum. 7.11 filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed November 24, 2004 eff. November 24,
2004.
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
7.13 Reporting employment opportunities.
Each employer shall each workday before 2:30 p.m. provide the
THEIC with a list of the number of gangs and other classifications prevalidated
and general information of employment opportunities expected to be available
the following workday for each classification of registered personnel. Such
information shall be posted or otherwise made available in each employment
information center; when employment is anticipated for a Saturday [if hiring
procedures are not implemented which include Saturday as a "regular work day"
in accordance with Section 7.19 of this Part], Sunday, Monday, or a holiday
falling on any workday, the requirements of this section shall be fulfilled on
the preceding regular working day.
Historical Note
Sec. amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed November 24, 2004 eff. November 24,
2004.
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
7.14 Prevalidation ordering from regular lists.
An employer may order employees on regular lists as
follows:
(a) not later than 1:45 p.m.
each workday, the employer shall notify the THEIC as to which of its regular
and regular-extra gangs and list employees it intends to order during the
following 24-hour period and employees and gangs so ordered may report directly
to the pier or terminal for work;
(b) not later than 4 p.m. each workday, the
employer shall indicate on the bulletin board at the pier or terminal those
employees and gangs ordered for employment during the following 24-period
hours;
(c) when employment is
anticipated for a Saturday [if hiring procedures are not implemented which
include Saturday as a "regular work day" in accordance with Section 7.19 of
this Part], Sunday, Monday, or a holiday falling on any workday, the
requirements of subdivisions (a) and (b) of this section shall be fulfilled on
the preceding regular working day;
(d) when employment is anticipated for a
workday following any holiday, the requirements of subdivisions (a) and (b) of
this section may be fulfilled on the last regular working day preceding the
holiday;
(e) where an employer
cancels the employment of an employee or a gang, it shall notify the THEIC no
later than 7 a.m. on the workday the employee or gang was to report for
employment.
Historical Note
Sec. amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed November 24, 2004 eff. November 24, 2004.
Amended (a) (b) (c) & (d)
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
7.15 "Quick registration"; weekend casual checkers;
limitations.
(a)
After satisfying the requirements of section 7.14(a) of this Part and prior to
2:30 p.m., the employer may order ("quick register") individual members of its
gangs or lists, not previously validated for the following workday, as dock or
terminal employees or as replacements in gangs in accordance with sections 7.29
through 7.40 of this Part, inclusive.
(b) A checker may telephone the THEIC on
Friday between 9 a.m. and 10 a.m. to make himself available on the checker
voluntary list for weekend employment at terminals handling baggage (cruise
ship or passenger ship terminals). A hiring agent may employ by "quick
registering," on Friday before 2:30 p.m., a casual checker who has made himself
so available.
(c) Except for the
provisions of subdivision (b) of this section, the "quick registration"
procedure may only be used to hire list or gang members for employment at their
own pier or terminal. The procedure is not to be used for ordering or extending
other registrants unless written permission is granted by the
commission.
(d) Not later than 4
p.m. each workday, the employer shall indicate on the bulletin board at the
pier or terminal those employees who have been "quick registered" for
employment during the following 24-hours period.
Historical Note
Sec. amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed November 24, 2004 eff. November 24, 2004.
Amended (a) (b) (c) & (d)
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
7.16 Recall of regular and regular-extra gangs.
An employer may retain a regular or regular-extra gang for
employment, even though the gang has been previously released by such employer
and ordered for employment by another employer, provided the regular employer
certifies to the commission that:
(a)
circumstances have arisen which prevent the completion of the work assignment
for the regular employer; and
(b)
the regular employer has notified the prospective employer at least one hour in
advance of the time the gang was to report to the prospective employer that it
intends to retain its gang until the work assignment is completed.
7.17 Ordering of additional gangs.
(a) Each gang not reported pursuant to
subdivision (a) of section 7.14 shall be posted as a gang not previously
ordered and may be ordered as an additional gang (including voluntary or extra
gangs).
(b) Prior to 2:00 p.m. a
hiring agent shall personally order additional gangs from the gangs not
previously ordered through the THEIC and so notify the center staff.
(c) An additional gang may be continued in
employment in the same manner as the employer's regular and regular-extra gangs
pursuant to section 7.14.
7.18 Extension of employment; use, procedure and
prohibited practices.
(a) When
a person employed pursuant to sections 7.19 and 7.20 is required by his
employer for successive days to complete his original assignment, the employer
may extend the employment on a day-to-day basis, but not beyond Friday of the
same week. Where the original assignment is not completed by Friday, the
employer may continue such employment for Saturday, and, if necessary, from
Saturday to Sunday only by receiving specific written permission of the
commission for each said day.
(b)
Not later than 3:00 p.m. each day the employer shall, on commission forms
posted on the bulletin board at the pier or terminal, indicate those persons
whose employment it is extending for the following 24 hours and shall furnish
such names to the employment information center by 3:00 p.m.
(c) Any such extension shall be accomplished
in the following manner: for each person to be extended, the employer, through
its hiring agent, shall certify on a commission form, the name, registration
number, classification and seniority of the registrant to be extended, the
specific duty assignment performed and to be performed by the registrant and
the location of said duty assignment performed and to be performed.
7.19 Prior day ordering (PDO) of registrants not
otherwise prevalidated.
An employer may prior day order (PDO) any registrant for
employment, except for employment as a supervisory employee, who was not
otherwise prevalidated in the following manner:
(a) Between 2:30 p.m. and 3:30 p.m. on the
prior regular working day, waterfront employers, through hiring agents and
through the THEIC, may order casuals for employment the next workday.
(b) Between 2:30 p.m. and 3:30 p.m. on Friday
afternoon [or Saturday afternoon, if hiring procedures are implemented which
include Saturday as a "regular work day" in accordance with this Section],
waterfront employers, through hiring agents and through the THEIC, may order
longshore casuals for any shift on Saturday [if hiring procedures are not
implemented which include Saturday as a "regular work day" in accordance with
this Section], Sunday or Monday, and may order checker casuals for any shift on
Monday.
(c) Between 2:30 p.m. and
3:30 p.m. on the last regular working day prior to a holiday, waterfront
employers, through hiring agents and through the THEIC, may order casuals for
any shift on the holiday or the workday following the holiday.
(d) Such selection shall be made from a
complete list of available registrants possessing the particular qualification
needed.
(e) Such selection shall be
made in accordance with the seniority priorities as contained in sections 7.29
through 7.40 of the Part, inclusive.
(f) A list of registrants so selected shall
be posted at the pier or terminal and the appropriate employment information
center.
Historical Note
Sec. amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed November 24, 2004 eff. November 24, 2004.
Amended (a) (b) & (c)
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
Sec. amd. filed July 13, 2012 eff. July 13, 2012.
7.20 Obtaining employment information, availability for
employment; hiring (regular working days).
(a) Between 4 p.m. and 8 p.m. on Mondays
through Thursdays [or Fridays, if hiring procedures are implemented which
include Saturday as a "regular work day" in accordance with Section 7.19 of
this Part] (except on holidays), longshoremen and checkers may telephone the
THEIC to ascertain if they have been ordered for work that evening or at any
time during the next workday. Between 4 p.m. and 8 p.m. on Fridays [or
Saturdays, if hiring procedures are implemented which include Saturday as a
"regular work day" in accordance with Section 7.19 of this Part] (except on
holidays), longshoremen and checkers may telephone the THEIC to ascertain if
they have been ordered for work that evening or at any time on Saturday [if
hiring procedures are not implemented which include Saturday as a "regular work
day" in accordance with Section 7.19 of this Part], Sunday and/or Monday,
and/or Tuesday if Monday is a holiday. Any such telephone call, shall make the
individual caller, who has no orders for the next weekday, regular working day,
available for employment at the 7 a.m. or 8 a.m. hiring on the next weekday
regular working day. During such call, individuals who do not have orders for
the next weekday regular working day shall designate a telephone number where
they may be reached between the hours of 8 a.m. and 9 a.m. during the next
weekday regular working day morning, if that telephone number is different from
the individual's usual telephone number maintained in the THS data
base.
(b) Between 8 a.m. and 9 a.m.
on the next weekday regular working day morning, those individuals who made
themselves available for work on the prior weekday regular working day between
4:00 p.m. and 8 p.m., may be hired by hiring agents, in accordance with
seniority (sections 7.29 through 7.40 of this Part), except for employment as a
supervisory employee, by qualification to fill in for absentees or to fill
emergency requirements. Said individuals may be advised of such employment by
telecommunications system controllers by telephone provided that said advice is
made in registration number sequence by seniority and qualifications and is in
accordance with section 7.44 of this Part.
(c) Prior to selecting any such longshoreman
or checker for employment, each hiring agent shall notify the THEIC of the
number of longshoremen and checkers he intends to employ. This number may be
revised by the hiring agent at any time prior to the time he commences hiring
according to seniority in the industry, as stated in sections 7.29 through 7.40
of this Part, inclusive. The hiring agent may employ only such number of
longshoremen and checkers he has stated he intends to employ, as revised. In
the event additional persons are needed after the hiring agent has commenced
hiring according to seniority in the industry, the hiring agent shall notify
the THEIC of such additional needs. He may then hire such additional
longshoremen and checkers he has declared as needed only after all other hiring
agents have had an opportunity to select the number of longshoremen and
checkers they have declared as needed before they commenced hiring according to
seniority in the industry and only if permitted under the applicable collective
bargaining agreement. To fill his employer's requirements, a hiring agent shall
make his selection from among such persons who have made themselves available
in accordance with this section and in accordance with sections 7.29 through
7.40 of this Part inclusive, during the designated hiring period.
(d) No hiring agent shall knowingly hire, or
attempt to hire, any person registered by the commission under any
circumstances or at any time during the hiring process when such person's
seniority classification would not ordinarily entitle him to receive said
employment.
Historical Note
Sec. amd. filed July 2, 1993 eff. July 2, 1993.
Sec. amds filed November 24, 2004 eff. November 24, 2004.
Amended (a) & (b)
Sec. amd. filed September 8, 2011 eff. September 8,
2011.
Sec. amd. filed July 13, 2012 eff. July 13,
2012.
7.21 Other weekday regular working day availability and
hirings.
(a) From 9 a.m. to
12:45 p.m. Monday through Friday (except on holidays) longshoremen and checkers
may telephone the THEIC to voluntarily make themselves available for employment
at 10 a.m., 1 p.m. and 3 p.m. on that day. Said individuals shall leave a
telephone number where they can be reached, if that telephone number is
different from the individual's usual telephone number maintained in the THS
data base.
(b) From 4:00 p.m. to
6:45 p.m. Monday through Friday (except on holidays) longshoremen and checkers
may telephone the THEIC to voluntarily make themselves available for employment
at 7 p.m. and 11 p.m. on that day. Said individuals shall leave a telephone
number where they can be reached, if that telephone number is different from
the individual's usual telephone number maintained in the THS data
base.
(c) A hiring agent may fill
his employer's requirements, except for requirements for supervisory employees,
from those registrants who made themselves available for 10 a.m., 1 p.m., 3
p.m., 7 p.m. or 11 p.m. employment, by selecting said registrants in accordance
with seniority and by qualifications through the telephonic hiring system.
Telecommunications system controllers may advise registrants of such employment
in accordance with section 7.20(b) of this Part.
Historical Note
Sec. amd. filed July 13, 2012 eff. July 13, 2012.
7.22 Availability for weekend and holiday employment;
weekend and holiday hirings; obtaining holiday employment information.
(a) Between 7 a.m. and 8
a.m. on Saturday, a longshoreman may telephone the THEIC to volunteer for any
shift on Saturday and/or Sunday and shall leave a telephone number where he may
be reached, if that telephone number is different from the longshoreman's usual
telephone number maintained in the THS data base.
(b) Between 4 p.m. and 8 p.m. on the last
regular working day before a holiday, longshoremen may telephone the THEIC for
work orders for any shift on the holiday or the day following the holiday. A
longshoreman who has not received any such orders may, between 7 a.m. and 8
a.m. on the day of a holiday when casual hiring will be conducted, may
telephone the THEIC to volunteer for any shift on the holiday and shall leave a
telephone number where he may be reached, if that telephone number is different
from the longshoreman's usual telephone number maintained in the THS data
base.
(c) A hiring agent may fill
his employer's requirements, except for requirements for supervisory employees,
from those longshoremen who made themselves available for weekend or holiday
employment, by selecting such longshoremen in accordance with seniority and by
qualification through the telephonic hiring system. Telecommunications system
controllers may advise registrants of such employment in accordance with
section 7.20(b) of this Part.
(d)
With respect to casual checker weekend employment between 9 a.m. and 11 a.m. on
Friday, or Thursday if Friday is a holiday, a checker may telephone the THEIC
to make himself available on the checker voluntary list for employment on
Saturday and/or Sunday. In the event of an emergency, a hiring agent, for
weekend work, may order a checker on his employer's list, and shall
post-validate the hiring at an employment information center on the next
regular working day stating, in writing, on a commission form, the nature of
the emergency.
Historical Note
Sec. amd. filed July 13, 2012 eff. July 13,
2012.
7.23 Reporting absenteeism.
(a) The employer, through its hiring agent,
shall notify the employment information center in writing on the appropriate
commission form of and shall record in the telephone hiring system data base,
by 9:00 a.m. of the same day, the failure of any person or gang to report for
work as ordered for 7:00 a.m. or 8:00 a.m. employment; and shall further notify
the employment information center in writing on the appropriate commission form
within 24 hours of the failure of any person or gang to report for work as
ordered for any other employment.
(b) Registered persons engaged in the
recording or tabulation of the hours worked at piers or other waterfront
terminals shall furnish accurate and timely absentee information to their
employers.
Historical Note
Sec. amd. filed May 15, 1991 to be eff.
immediately.
7.24 Registering and Data Base Validation and
Certification.
The employment of any gang, list or individual pursuant to
sections 7.13 through 7.22 shall be registered by an employer's hiring agent in
the THS data base. Said hiring agent shall also certify to the commission, on
an appropriate form, that any such employment is in accordance with this Part.
Said form shall be submitted to the commission for validation.
REACTIVATED AND NEW PIERS
7.25 Notice for establishing regular lists for
reactivated and new piers.
An employer shall give 30 days notice to the commission prior
to filing regular lists for a reactivated or new pier. The commission may
reduce the time required for such notice. The commission shall post such notice
in each employment information center for a period of not less than one
week.
7.26 Publication of prior lists for reactivated
piers.
Upon receiving such notice with respect to a reactivated pier,
as defined in section 7.2(j), the commission shall furnish the employer with
such prior regular lists as were duly approved by and on file with the
commission at the time the pier's operation terminated and shall post copies of
such lists for not less than one week in each employment information center.
Any prospective employee whose name appears on any such list who seeks to be
included on a regular list at the reactivated pier shall apply to the
employer's hiring agent or pier superintendent on an application supplied by
the employer and approved by the commission. Within five business days from the
end of period of posting, the employer shall forward to the commission copies
of all applications received during that period, together with a commission
form upon which shall be entered the names and seniority classifications of all
persons who apply during that period and a certification by the employer's
hiring agent that all persons who sought such listings were furnished
applications and that all applications received have been forwarded to the
commission.
7.27 Regular lists for reactivated piers.
At the time of filing applications pursuant to Section 7.26,
the employer may select regular employees and members of gangs from job
applicants qualified and able to perform the duties of the job, in accordance
with sections 7.29 through 7.40, inclusive, and file its original lists of
regular employees and gangs in accordance with section 7.5. The employer may
select additional persons to complete its original lists for the reactivation
of the pier in accordance with section 7.7 no later than 10 days after the
initial filing of his lists.
7.28 Regular lists for new piers.
Any prospective employee seeking inclusion in a regular list
for a new pier shall apply to the employer's hiring agent or pier
superintendent on an application supplied by the employer and approved by the
commission. Within five business days from the end of the period of posting,
the employer shall forward to the commission copies of all applications
received during that period, together with a commission form upon which shall
be entered the names and seniority classification of all persons who applied
during that period and a certification by the employer's hiring agent that all
persons who sought such listings were furnished applications and that all
applications received have been forwarded to the commission. No later than 20
days after giving notice pursuant to section 7.25, the employer may select
regular employees and gangs from job applicants qualified and able to perform
the duties of the job, in accordance with sections 7.29 through 7.40,
inclusive, and file such lists in accordance with section 7.5.
PRIORITIES
7.29 Construction of priorities.
In accordance with the provisions of article XV of the
Waterfront Commission Act, the following priorities of employment are designed
to be consistent with the priorities established in the seniority article of
the collective bargaining agreement between the New York Shipping Association,
Inc. and the International Longshoremen's Association. The listing of these
priorities shall not be construed to limit in any way the right of the parties
to the collective bargaining agreement to alter, modify, amend or otherwise
change such priorities or agree upon any other method for the selection of
registered or licensed employees by way of seniority, experience, regular gangs
or otherwise.
7.30 Regular employee lists for reactivated
piers.
(a) Each list for
regular employees other than coopers, maintenance men and marine carpenters, at
a reactivated pier shall be established from those persons on prior lists for
such category who are available and willing to accept employment, on the basis
of seniority at the pier or terminal. If pier or terminal seniority is equal,
selection shall be made on the basis of seniority in the industry. Additions to
such lists shall be made in accordance with the priorities for additions to the
regular list of such category on existing piers.
7.31 Regular gang lists for reactivated piers.
(a) Regular gang lists at a
reactivated pier shall be established from:
1.
former regular gangs on the basis of gang seniority at the pier, provided the
gang is available for work and substantially intact;
2. former regular-extra gangs on the basis of
gang seniority at the pier, provided the gang is available for work and
substantially intact; or
3. members
of former regular and regular-extra gangs in accordance with their seniority at
the pier or terminal. Where pier seniority is equal, selection shall be made on
the basis of seniority in the industry.
(b) Additions to regular gang lists shall be
selected from the following:
1. regular and
regular-extra gangs in the section, provided they are available for and willing
to accept employment as intact gangs;
2. longshoremen identified with the section
in which the employer's pier or terminal is located on the basis of seniority
in the industry; or
3. regular and
regular-extra gangs from other sections, provided they are available for and
willing to accept employment as intact gangs.
7.32 Regular employee lists for new piers.
Regular employee lists for new piers shall be established from
longshoremen identified with the section in which the employer's pier or
terminal is located on the basis of seniority in the industry.
7.33 Regular gang lists for new piers.
Regular gang lists for a new pier shall be established
from:
(a) regular and regular-extra
gangs in the section, provided they are intact and available for and willing to
accept employment; and, thereafter, from
(b) longshoremen identified with the section
in which the employer's pier or terminal is located on the basis of seniority
in the industry.
7.34 Replacements and additions to regular employee
lists.
Additions and replacements to regular employee lists, except
lists for checkers, clerks, coopers, marine carpenters, and maintenance men,
shall be selected in the following order from:
(a) employees listed on any regular employee
list at such pier or terminal; where such employees have equal status,
selection shall be made on the basis of seniority at the pier or terminal;
where pier or terminal seniority is equal, selection shall be made on the basis
of seniority in the industry;
(b)
employees listed on regular gang lists at such pier or terminal on the basis of
seniority at the pier or terminal;
(c) employees listed on regular-extra gang
lists at such pier or terminal on the basis of seniority at the pier or
terminal;
(d) longshoremen
identified with the section in which the employer's pier or terminal is located
on the basis of seniority in the industry;
(e) longshoremen identified with the borough
or area in which the employer's pier or terminal is located on the basis of
seniority in the industry;
(f)
longshoremen whose seniority classification is identified with any other
section in the port on the basis of seniority in the industry; and
thereafter,
(g) the employer may
select any other longshoreman without regard to any seniority classification.
Additions and replacements for coopers, marine carpenters, and
maintenance men shall be selected in accordance with the rights of such
employees under applicable seniority agreements.
7.35 Replacements and additions to checker and clerk
list.
Replacements and additions to the checker and clerk list,
except for timekeepers, who may be selected without regard to seniority, shall
be selected in the following order from:
(a) employees listed on the same regular
checker and clerk employee list; and, thereafter,
(b) the employer may select any checker or
clerk on the basis of seniority classification in the industry.
7.36 Replacements in gangs and the formation of new
gangs.
Replacements in regular and regular-extra gangs and members of
new gangs shall be selected in the following order from qualified
longshoremen:
(a) employees listed on
any regular gang list at the pier or terminal in accordance with their
seniority at the pier or terminal; where pier or terminal seniority is equal,
selection shall be made on the basis of seniority in the industry;
(b) employees listed on any regular-extra
gang list at the pier or terminal in accordance with their seniority at the
pier or terminal; where pier or terminal seniority is equal, selection shall be
made on the basis of seniority in the industry;
(c) employees listed on any regular employee
list at such pier or terminal; where such employees have equal status,
selection shall be made in accordance with their seniority at the pier or
terminal; where pier or terminal seniority is equal, selection shall be made on
the basis of seniority in the industry;
(d) longshoremen identified with the section
in which the employer's pier or terminal is located on the basis of their
seniority status in the industry;
(e) longshoremen identified with the borough
or area in which the employer's pier or terminal is located on the basis of
seniority in the industry;
(f)
longshoremen whose seniority classification is identified with any other
section in the port on the basis of their seniority status in the industry;
and, thereafter,
(g) the employer
may select any other longshoremen without regard to any seniority
classification. Temporary replacements in gangs shall be selected in the same
order of priority without regard to seniority at the pier or
terminal.
7.37 Replacements in voluntary gangs.
Replacements in voluntary gangs shall be selected from:
(a) longshoremen identified with the section
or sections within the employment information center where the gang is listed,
on the basis of seniority in the industry;
(b) longshoremen identified with the borough
or area in which the employer's pier or terminal is located on the basis of
seniority in the industry;
(c)
longshoremen whose seniority classification is identified with any other
section in the port on the basis of seniority in the industry; and,
thereafter,
(d) any other
longshoremen without regard to any seniority classification.
7.38 Ordering employees through the THEIC.
Persons who have made themselves available through the THEIC
shall be ordered for employment in accordance with the provisions of this Part
for the additions of employees to lists for that category of employment and the
hiring sequence established, and amended from time to time, by the New York
Shipping Association, Inc., and the International Longshoremen's Association,
or by a joint board of the New York Shipping Association, Inc. and the
International Longshoremen's Association.
7.39 Ordering by special agreement.
Where on any pier or terminal or in any area or section there
exists a special agreement concerning the preferential order of hiring of gangs
or of employees as individuals, such agreement shall be submitted in writing to
the commission by the joint board established by the New York Shipping
Association and the International Longshoremen's Association. If the commission
determines that such agreement is not inconsistent with the laws of the United
States, the laws of the States of New York and New Jersey and the objectives of
the Waterfront Commission Act, such preferential order of hiring may be
instituted.
7.40 Sections.
For the purpose of priorities for longshoremen other than
checkers, coopers, maintenance men and marine carpenters, the port shall
consist of the following sections: Section 1 Brooklyn, Sugar Houses in Yonkers
and Long Island City.
Section 7 Piers 97 to 64 North River-Manhattan, NY
Section 9 Piers 62 to 54 North River-Manhattan, NY
Section 10 Piers 51 to 25 North River-Manhattan, NY
Section 11 Pier 15 North River, around the horn to Pier 68 East
River-Manhattan, NY
Section 12 Port Newark, Port Elizabeth, Perth Amboy to
Leonardo, NJ
Section 14 Jersey City and Bayonne, NJ
Section 15 Hoboken, Weehawken and Edgewater, NJ
Section 16 Staten Island, NY
MAINTAINING AND AVAILABILITY OF RECORDS: MAINTAINING
7.41 Availability of documents, tapes, disks and other
data; data base to reflect commission eligibility status.
(a) The records, transaction logs, documents,
tapes, disks, and other data compiled, collected or maintained by the New York
Shipping Association, Inc., the International Longshoremen's Association or by
a joint board of the New York Shipping Association, Inc. and the International
Longshoremen's Association pertaining to the THS shall be available for
inspection, investigation and duplication by the commission, and shall be
furnished to the commission, as required. Said information shall include, but
not be limited to: absentee reports, audit and presentee reports, availability
for hiring and hiring data and transaction logs. Said data shall be maintained
for a period of at least three (3) years.
(b) Any data base list of gangs and
registrants or individual registrants kept and maintained by the management
organization representing employers of longshoremen and checkers in the Port of
New York District, or by the labor organization representing longshoremen and
checkers in the Port of New York District, or by a joint board of the
management and labor organization, must reflect a registrant's waterfront
commission eligibility status. Unless otherwise authorized in writing, said
status shall only be entered into the data base by commission employees at a
data base terminal designated by the commission.
7.42 Recording of Telephone Calls; Monitoring by
Commission.
All telephone calls to and from the THEIC in connection with
all phases of the telephone hiring system operation shall be recorded and all
said recordings made by the New York Shipping Association, Inc., the
International Longshoremen's Association or by a joint board of the New York
Shipping Association, Inc. and the International Longshoremen's Association,
shall be retained for a period of six months under the sole custody and control
of the commission. The commission may review and abstract said recordings in
any manner. The commission may also monitor, in any manner, any and all
incoming or outgoing telephone calls concerning the telephone hiring system
operation.
PROHIBITED CONDUCT
7.43 Unauthorized hiring and solicitation of
employment.
(a) No person
shall, directly or indirectly, hire any person for work as a longshoreman or
checker within the Port of New York District, except through employment
information centers established by the commission. No person shall accept any
employment as a longshoreman or checker within the Port of New York District,
except through such employment information centers.
(b) No person shall report for or solicit
employment at any pier or terminal without having previously been selected and
validated for employment through an employment information center. No gang
foreman or any other person shall instruct or advise any person to report for
or solicit employment at any pier or terminal prior to that person's selection
and validation through an employment information center.
7.44 Unauthorized participation in hiring.
Except as specifically provided in section 7.20(b), no person
shall participate or attempt to participate in any way, directly or indirectly,
in the identification, selection or designation of a person for any list or
roster established by the commission pursuant to these Regulations or for
employment as a longshoreman or checker, or of a gang for employment, except a
licensed hiring agent, his superior or a person for whom permission is granted
by the commission upon application of his employer and for whom appropriate
identification has been issued.
7.45 Unauthorized conduct in employment information
centers.
(a) No persons except
licensed and registered persons shall have access to the employment information
centers without approval from the commission. It shall be the policy of the
commission to grant to representatives of management and the union permission
to observe the hiring.
(b) No
person shall in or upon any area, stairway or other appurtenance of an
employment information center, sell or offer for sale any article of
merchandise; conduct or solicit any business or trade; solicit alms, funds or
contributions for any purpose; or post, distribute or display signs,
advertisements, circulars, printed or written matter.
(c) No person shall gamble, conduct or engage
in any game of chance in or upon any area, stairway or any other appurtenance
of an employment information center.
(d) No person shall deface, mark, break or
otherwise damage any part of a center or any property therein, or create a
disturbance in or about a center or do any act or thing which shall create a
nuisance in or about a center.
(e)
No person who is unable to give a satisfactory explanation of his presence
shall loiter in or about any lavatory area, stairway or other appurtenance or
an employment information center.
(f) Except in any area designated by the
commission as a smoking area, no person shall smoke or carry a lighted
cigarette, cigar or pipe in or upon any area, stairway or any other
appurtenance of an employment information center.
(g) Any permission granted by the commission,
directly or indirectly, expressly or by implication, to any person or persons
to enter upon or use an employment information center or any part thereof is
conditioned upon acceptance of and compliance with the provisions of this
section.
7.46 Tampering with THS.
(a) No person shall directly or indirectly
tamper with or utilize any telephone, computer, monitor, record, transaction
log, document, tape, disk, report, data or equipment pertaining to the THS with
intent to deceive or defraud the commission, the New York Shipping Association,
Inc., the International Longshoremen's Association, a joint board of the New
York Shipping Association, Inc. and the International Longshoremen's
Association or any other person.
(b) No person shall intentionally tamper
with, alter in any manner, or destroy any computer equipment, computer program,
computer data or computer material utilized in connection with the
THS.
PART 8
REGULARIZATION OF EMPLOYMENT OF LONGSHOREMEN AND CHECKERS
(DECASUALIZATION)
(Statutory authority: New York L. 1953, ch. 882, § 7, art.
IV; New Jersey L. 1953, ch. 202; Unconsolidated Laws, § 9810[7])
| Section |
| 8.1 |
Removal from register for failure to work or
be available for work |
| 8.2 |
Audit of availability for work |
| 8.3 |
Notice before final removal |
| 8.4 |
Requirements for reinstatement after removal
from register |
Section 8.1 Removal from register for failure to work or
be available for work.
(a) To
qualify for retention in the commission's "deep-sea" register, a person
included in such register must work as a longshoremen or as a checker, or make
himself available for work in accordance with the provisions of subdivision (b)
of this section, a minimum of 90 days in each half-calendar year, distributed
at least 15 days to each month during at least five of the six months in each
half-calendar year. In administering this section, receipt of compensation by
any such person pursuant to the guaranteed wage provisions of any collective
bargaining agreement relating to longshoremen and/or checkers shall be counted
as constituting actual work, provided that such is received as a result of
compliance with the provisions of subdivision (b) of this section.
(b) A registrant may make himself available
for work by telephoning the THEIC between the hours of 4 p.m. and 8 p.m. on the
prior day for orders. Those registrants who do not receive orders for the next
day shall be available between the hours of 8 a.m. and 9 a.m. on the next day
(except Saturday, Sunday or holidays) for telephone orders.
(c) To qualify for retention in the
commission's "A" register, a person included in such register must appear on
the current roster of an employer of such persons. Any such employer shall
submit to the commission, at least once a year at a time designated by the
commission, a roster of persons it employs or intends to employ.
Historical Note
Sec. amds. filed: June 29, 1966; Oct. 10, 1966; Apr. 29, 1968;
Aug. 22, 1969; Nov. 17, 1969 eff. Nov. 30, 1969. New sec. substituted.
Sec. amds. filed August 13, 2013, eff. August 13,
2013.
8.2 Audit of availability for work.
(a) The commission may conduct audits, daily
or otherwise, to insure that registrants are or have been available for work
within the meaning of section 8.1(b) of this Part. The results of any such
audit may be entered in the THS data base.
(b) The association representing employers of
longshoremen and checkers and the labor organization representing longshoremen
and checkers in the Port of New York District, or a joint board of such
association and labor organization, shall furnish the commission with any and
all information necessary for the commission to properly perform the audits
referred to in subdivision (a) of this section.
(c) Any audit performed by telecommunications
system controllers shall be recorded in writing and furnished to the
commission. The results of any such audit shall be entered into the THS data
base. The audit sheet shall specify the registration number of the particular
registrant contacted, whether the registrant was available or unavailable for
work and any appropriate comments, and shall be signed by the person conducting
the audit.
Historical Note
Sec. amds. filed: Oct. 10, 1966; Nov. 17, 1969 eff. Nov. 30,
1969. New sec. substituted.
Sec. amds. filed August 13, 2013, eff. August 13,
2013.
8.3 Notice before final removal.
(a) No person shall be removed from the
"deep-sea" register pursuant to article IX and section 5-c of the Act and this
Part except upon two weeks' notice of his failure to accrue the minimum number
of days required by this Part.
(b)
No person shall be removed from the "A" register except upon two weeks' notice
of his failure to appear on any current roster of registrants submitted
pursuant to section 8.1(c) of this Part.
Historical Note
Sec. amds. filed: Oct. 10, 1966; Dec 29, 1975 eff.
immediately.
Sec. amds. filed May 1, 2007 eff. May 1, 2007.
Sec. amds. filed August 13, 2013, eff. August 13,
2013.
8.4 Requirements for reinstatement after removal from
register.
(a) Any person
removed from the "deep-sea" longshoremen's register pursuant to article IX and
section 5-c of the act and this Part may seek registration upon fulfilling the
same requirements as for initial inclusion in such register, provided
applications for registration are then being accepted by the commission
pursuant to section 5-p of the act and provided further that at least one year
has expired from the date of removal, except that immediate reinstatement shall
be made upon a proper showing that the registrant's failure to work or apply
for work the minimum number of days required by this Part was caused by the
fact that the registrant was engaged in the military service of the United
States or was incapacitated by ill health, physical injury, or other good
cause. In the event such failure to work or apply for work the minimum number
of days required by this Part was caused by the fact that the registrant was
incarcerated, such registrant may be reinstated provided he applies for such
reinstatement within one year after the termination of such incarceration. Any
reinstatement under this section shall not preclude a proceeding to revoke,
cancel or suspend the registration of any such person reinstated to the
register nor the temporary suspension of such registration under the provisions
of article XI of the act.
(b) No
petition for reinstatement shall be accepted from any person seeking
reinstatement unless the person is sponsored for employment by a "stevedore" or
by any "person", within the meaning of those terms contained in the act, who is
an employer of individuals requiring a registration or a license under the act
and where proof of sponsorship has been received by the commission, prior to
submission to the commission of said petition, in the form of a letter
submitted by the sponsoring employer.
(c) Any person removed from the "A" register
may seek registration upon fulfilling the same requirements as for initial
inclusion in such register except that where reinstatement is sought within one
year of removal from the said "A" register, the commission may, in its
discretion, waive said requirements.
Historical Note
Sec. deleted, filed Oct. 10, 1966 to be eff.
immediately.
New sec. filed August 13, 2013, eff. August 13, 2013.
PART 9
ASSESSMENTS
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
| Section |
| 9.1 |
Gross payroll payments |
| 9.2 |
Filing of assessment returns and payment of
assessments |
| 9.3 |
Computing gross payroll payments paid to
certain licensees |
| 9.4 |
Extension for filing return or paying
assessment |
| 9.5 |
Failure to file return and filing incorrect
return |
| 9.6 |
Notice of deficiency; petition for
hearing |
Section 9.1 Gross payroll payments.
As used in this Part, the term gross payroll
payments shall include all amounts paid or credited to longshoremen, checkers,
pier superintendents, hiring agents or port watchmen, whether as "wages",
"hourly rate", "traveling expense" (other than amounts paid to cover actual
transportation costs, vacation and holiday payments or guaranteed annual income
(GAI) payments.
9.2 Filing of assessment returns and payment of
assessments.
Every employer of persons working as registrants or licensees
shall, on or before the 15th day of January, April, July and October
immediately following any calendar quarter during which such employer has made
any gross payroll payments to such registrants or licensees, file with the
commission at its main administrative offices an assessment return on a form
which may be obtained from the commission and pay the assessment then due,
based upon the rate as fixed by the commission.
9.3 Computing gross payroll payments paid to certain
licensees.
For the purpose of computing gross payroll payments, salaries
and other compensation of corporate officers and other persons of equivalent
managerial authority who hold licenses as pier superintendents or hiring agents
and who perform such licensed functions only in emergency or other unusual
conditions may, upon submission of adequate evidence, be included only to the
extent that such compensation does not exceed $ 10,000 per annum.
9.4 Extension for filing return or paying
assessment
The commission, upon a showing of good cause, may grant a
reasonable extension of time for filing an assessment return or for the payment
of any assessment. Any application for such extension must be made prior to the
due date. As a condition of granting an extension of time for filing a return,
the commission may require the submission of a tentative return and the payment
of the assessment based on such tentative return.
9.5 Failure to file return and filing incorrect
return.
If in the opinion of the commission the return of any employer
is incorrect, the commission may revise such return and may audit and state an
account according to such revised return for the amount due from such employer
for the assessment, penalties and interest. If an employer fails to make a
return, the commission may estimate his gross payroll payments from any
information available to it. For this purpose, the commission may examine the
employer's books and records, take testimony, require other evidence, and audit
and state an account according to such information of the amount due from the
employer for the assessment, penalties and interest. Nothing in this section is
intended to or shall be construed to limit the investigating or auditing powers
of the commission under the Act.
9.6 Notice of deficiency; petition for hearing.
(a) Whenever a deficiency in payment
of the assessment is determined, the commission shall give notice thereof to
the employer. Such determination shall finally and conclusively fix the amount
due, unless the employer shall, within 30 days after the giving of notice of
such determination, petition in writing to the commission for a hearing, or
unless the commission on its own motion shall reduce the same. A petition for
such hearing shall be verified and contain the following information:
1. the name and address of the employer,
license number, if any, the period covered by the deficiency and the date of
the deficiency notice; and
2. the
grounds upon which the petition is based and each error of fact alleged to have
been made by the commission in its determination, together with the facts and
arguments in support thereof.
(b) The commission, or its designated hearing
officer, shall fix the time and place of the hearing on any petition upon at
least five days' notice. The conduct of the hearing shall be governed, in so
far as applicable, by the provisions of Part 6 of these Regulations.
PART 10
PUBLIC LOADING
(Statutory authority: New York L.1953, ch.882, art. IV, §
7; New Jersey L.1953, ch.202)
| Section |
| 10.1 |
Persons permitted to load or unload
waterborne freight for |
| compensation. |
| 10.2 |
Persons not included as employees. |
| 10.3 |
Coercive tactics to require loading and
unloading services prohibited. |
Section 10.1 Persons permitted to load or unload
waterborne freight for compensation.
(a) No person shall solicit, collect, receive
or contract for any fee or other compensation for the loading or unloading of
waterborne freight onto or from vehicles other than railroad cars at piers or
at other waterfront terminals within the Port of New York District unless:
(1) such person, or his employee, shall
actually perform the loading or unloading services; and
(2) such person is
(i) a carrier of freight by water, but only
at piers at which its vessels are berthed; or
(ii) any other carrier of freight (including,
but not limited to, railroads and truckers), but only in connection with
freight transported or to be transported by such carrier; or
(iii) an operator of a pier or other
waterfront terminal (including railroads, truck terminal operators,
warehousemen and other persons), but only at a pier or other waterfront
terminal operated by it; or
(iv) a
shipper or consignee of freight, but only in connection with freight shipped by
such shipper or consigned to such consignee; or
(v) a stevedore licensed under article VI of
the Act, whether or not such waterborne freight has been or is to be
transported by a carrier of freight by water with which such stevedore shall
have a contract of the type prescribed by subdivision (d) of section 3 of
article VI of the Act.
(b) Nothing herein contained shall be deemed
to permit any such loading or unloading of any waterborne freight at any place
by any such person by means of any independent contractor, or any other agent
other than an employee, unless such independent contractor is a person
permitted by this Part to load or unload such freight at such place in his own
right.
10.2 Persons not included as employees.
As used in this Part, the term employee shall
not include a person who:
(a) offers
himself for employment solely to perform such labor, or is employed for the
sole purpose of performing such labor; or
(b) is selected or hired for employment for
such labor at or in the vicinity of piers or other waterfront terminals;
or
(c) is paid other than a weekly,
daily or hourly wage, with appropriate deductions for federal withholding and
social security taxes for such labor; or
(d) shares in fees collected by his employer
for such loading or unloading services; or
(e) is not recorded on the payrolls of the
employer for whom he performs such labor in the same manner as other employees;
or
(f) is not subject to the direct
and immediate supervision of his employer in the performance of such labor;
or
(g) uses or leases to his
employer to perform such loading or unloading services, equipment (such as
escalators, hi-los, fork trucks, cranes, etc.) owned by him, directly or
indirectly, in whole or in part.
10.3 Coercive tactics to require loading and unloading
services prohibited.
No person shall, directly or indirectly, by the use of force,
threats, intimidation or other coercive tactics require or attempt to require
the utilization of his or any other person's services to perform the loading or
unloading services specified in section 10.1.
