(a) The first attestation element shall be satisfied when the
employer signs Form ETA 9033-A, attesting that, before using alien
crewmembers to perform longshore work during the validity period of the
attestation, the employer will make a bona fide request for United
States longshore workers who are qualified and available in sufficient
numbers to perform the specified longshore activity from the parties to
whom notice is provided under Sec. 655.537(a)(1) (ii) and (iii).
Although an employer is required to provide notification of filing to
labor organizations recognized as exclusive bargaining representatives
of United States longshore workers pursuant to Sec. 655.537(a)(1)(i) of
this part, an employer need not request dispatch of United States
longshore workers directly from such parties. The requests for dispatch
of United States longshore workers pursuant to this section shall be
directed to contract stevedoring companies which employ or intend to
employ United States longshore workers at that location, and to
operators of private docks at which the employer will use longshore
workers. An employer is not required to request dispatch of United
States longshore workers from private dock operators or contract
stevedoring companies which do not meet the requirements of section 32
of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932)
or, in the case of contract stevedoring companies, which are not
licensed to do business in the State of Alaska.
(1) Wherever two or more contract stevedoring companies have signed
a joint collective bargaining agreement with a single qualified labor
organization, the employer may request longshore workers from only one
of such contract stevedoring companies. A qualified labor organization
is one which has been recognized as an exclusive bargaining
representative of United States longshore workers within the meaning of
the National Labor Relations Act (29 U.S.C. 141 et seq.) and
which makes available or intends to make available workers to the
particular location where the longshore work is to be performed.
(2) A request for longshore workers to an operator of a private dock
may be made only for longshore work to be performed at that dock.
(3) An employer shall not be required to request longshore workers
from a party if that party has notified the employer in writing that it
does not intend to make available United States longshore workers who
are qualified and available in sufficient numbers to the time and
location at which the longshore work is to be performed.
(4) A party that has provided such written notice to the employer
under paragraph (a)(3) of this section may subsequently notify the
employer in writing that it is prepared to make available United States
longshore workers who are qualified and available in sufficient numbers
to perform the longshore activity at the time and location where the
longshore work is to be performed. In that event, the employer's
obligations to that party under Secs. 655.534 and 655.535 of this part
shall recommence 60 days after its receipt of such notice.
(5) When a party has provided written notice to the employer under
paragraph (a)(3) of this section that it does not intend to dispatch
United States longshore workers to perform the longshore work attested
to by the employer, such notice shall expire upon the earliest of the
following events:
(i) When the terms of such notice specify an expiration date at
which time the employer's obligation to that party under Secs. 655.534
and 655.535 of this part shall recommence;
(ii) When retracted pursuant to paragraph (a)(4) of this section; or
(iii) Upon the expiration of the validity of the attestation.
(b) Documentation. To substantiate the requirement in paragraph (a)
of this section, an employer shall develop and maintain documentation to
meet the employer's burden of proof under the first attestation element.
The employer shall retain records of all requests for dispatch of United
States longshore workers to perform the longshore work attested to. Such
documentation shall consist of letters, telephone logs, facsimiles or
other memoranda to show that, before using alien crewmembers to perform
longshore work, the employer made a bona fide request for United States
longshore workers who are qualified and available in sufficient numbers
to perform the longshore activity. At a minimum, such documentation
shall include the date the request was made, the name and telephone
number of the particular individual(s) to whom the request for dispatch
was directed, and the number and composition of full work units
requested. Further, whenever any party has provided written notice to
the employer under paragraph (a)(3) of this section, the employer shall
retain the notice for the period of time specified in Sec. 655.533 of
this part, and, if appropriate, any subsequent notice by that party that
it is prepared to make available United States longshore workers at the
times and locations attested to.
