In the Matter of the Application of Anthony Furina Sr., Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules
Waterfront Commission of New York Harbor, RONALD GOLDSTOCK as Commissioner of the Waterfront Commission of New York Harbor, BARRY EVENCHICK, as Commissioner of the Waterfront Commission of New York Harbor, JEFFREY R. SCHOEN, as Director of Law, Licensing and EIC of the Waterfront Commission of New York Harbor, Respondents.
For Petitioner Kathy Huang Esq.
For Respondents Phoebe S. Sorial, General Counsel Jason Szober, Assistant Counsel.
Lucy Billings, J.
On March 20, 2009, petitioner Anthony Furina was working as a pier superintendent, overseeing the loading of freight onto the ship Asian Trust in Bayonne, New Jersey. On that day, officers of the Waterfront Commission of New York Harbor, Division of Police, staked out and observed petitioner drive two trucks onto the Asian Trust. The police officers then arrested petitioner for working as a longshoreman without being on the longshoremen's register. After an administrative hearing, respondents revoked petitioner's temporary pier superintendent permit and denied his application for a permanent pier superintendent permit, on the ground that his loading of the two trucks constituted an offense under the Waterfront Commission Compact, NY Unconsol. Laws § 9827, that demonstrated his poor character and unfitness for the permits. V. Answer Exs. D, at 2, and E, at 2. Petitioner now seeks reversal of that determination. C.P.L.R. § 7803(3) and (4).
After oral argument and careful review of the voluminous record, the court grants the petition for the reasons explained below. Respondents shall reinstate petitioner's temporary pier superintendent license and grant his application for a permanent pier superintendent license. C.P.L.R. § 7806. The order of July 19, 2010, by respondent Waterfront Commission of New York Harbor, and the Administrative Judge's Report and Recommendation of June 17, 2010, on which respondent Waterfront Commission relied, were arbitrary and contrary to law. C.P.L.R. § 7803(3).
II. THE APPLICABLE LAW
Petitioner admits driving two vehicles onto the ship Asian Trust while working as a pier superintendent and without being registered as a longshoreman. Respondents have not provided, nor has the court found, any statute or regulation forbidding a pier superintendent from minimal physical loading of freight as part of the superintendent's supervisory responsibilities. The record from the agency hearing includes testimony that a longshoreman might have had a "problem" with petitioner's loading of the two trucks, V. Answer Ex. B, at 602, but a longshoreman's simple disapproval does not equate to the force of a statute or regulation. Few activities or restraints from activity bother no one at all.
Respondents emphasize that a pier superintendent may not join a longshoremen's union, NY Unconsol. Laws § 9818, and that a pier superintendent is defined as distinct from a longshoreman. NY Unconsol. Laws § 9806. Respondents have not charged petitioner, however, with unlawful union membership. Without more, a prohibition on union membership by persons holding a particular job title does not translate into a prohibition on particular job duties or actions in furtherance of those duties or otherwise in the course of the job.
The Waterfront Commission Compact provides that "no person shall act as a longshoreman within the Port of New York District unless at the time he is included in the longshoremen's register." NY Unconsol. Laws § 9827. The Compact does not define "act as a longshoreman." Although loading freight is among the duties within the definition of a longshoreman, NY Unconsol. Laws § 9806, the inclusion of that duty there does not definitively exclude it from either the duties or the activities of a pier superintendent, nor transform any freight loading activity, however occasional or minimal, into "act[ing] as a longshoreman." Supervision naturally and reasonably involves occasional assistance with a subordinate's duties, to show a subordinate how to perform a task or because the subordinate is unable to perform it, for example.
To hold instead that to "act as a longshoreman" is to engage in any activity that overlaps to any extent with a longshoreman's duties under § 9806 would render the necessary and inevitable duties of pier superintending inherently criminal, because the very definitions of a longshoreman and a pier superintendent include functions that overlap. The definition of a longshoreman includes a person employed "to supervise directly and immediately" other longshoremen. A pier superintendent, by comparison, means a "person other than a longshoreman... whose work... includes the supervision, directly or indirectly, of the work of longshoremen, " explicitly recognizing that the work of a longshoreman and of a pier superintendent do coincide. NY Unconsol. Laws § 9806 (emphasis added).
Concomitantly, the statutes and the Waterfront Commission Rules and Regulations recognize that the positions also entail distinct forms of employment. Rule § 4.2(a)(5) requires that "any person" be registered as a longshoreman "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." This regulation does not apply to a pier superintendent, because a pier superintendent is by definition employed "by a carrier of freight by water or by a stevedore." NY Unconsol. Laws § 9806. Otherwise, however, like the statute, Rule § 4.2(a)(5) gives longshoremen and pier superintendents overlapping functions, because even a superintendent who stood completely still and imparted solely verbal instructions would "perform... services involving or incidental to the movement of freight."
In sum, the statutes and regulations expressly provide for the parallel employment, with overlapping functions, of longshoremen and of pier superintendents not on the longshoremen's registry. E.g., NY Unconsol. Laws § 9806; Waterfront Comm'n R. §§ 2.1, 4.2(a)(5). These laws therefore permit pier superintendents to "act as a longshoreman" insofar as those terms may be interpreted to include "services involving or incidental to the movement of freight" or ...