(a) This Article VIII shall not apply to any Employer with respect to any employee who does not work in Excursion Vessel Operations.
(b) This Article VIII shall not apply to an Employer if:
(1) The Employer employs fewer than 40 Employees.
(A) The number of Employees shall be determined by calculating the average number of Employees in the June, July, and August immediately preceding the request for a Labor Peace Agreement;
(B) Where the Employer is a Subcontractor, the number of Employees shall be determined by calculating the average number of Employees of the tenant and all Subcontractors operating under a single Excursion Vessel Lease in the June, July, and August immediately preceding the request for a Labor Peace Agreement;
(2) The City has no Proprietary Interest in the Excursion Vessel Lease under which the Employer operates;
(3) The Employer operates under a Pre-existing Lease. This exemption applies to an Employer for the duration of such Pre-existing Lease unless it is amended during its term resulting in a Substantial Amendment;
(4) The Employer is a signatory to valid and binding collective bargaining agreement(s) covering all of its Employees;
(5) The Employer is a governmental agency, and the law would prohibit application of this Article VIII;
(6) The Employer’s Excursion Vessel Operations are between States, or are seaward of the seaward boundary of the Territorial Sea of the United States; or
(7) The Employer is a party to a grant, subvention, or agreement with a governmental agency related to Excursion Vessel Operations, and applying the requirements of this Article VIII would violate the terms or conditions of such agreement or any related rules or regulations.
(b)1
The Agency shall determine the applicability of an exemption under subsection (a) on a case-by-case basis. Any Employer claiming an exemption must submit a written request, including the evidentiary basis for the exemption, to the Agency within five business days of receiving a request to enter into a Labor Peace Agreement. The Employer shall have the burden of proving that an exemption is applicable.
