# Amicus Curiae Brief — Norfolk & Western Railway Co. v. Goode (No. 88-127)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988

## Text

3n e upeme Cou ot

OcToser TERM, 1988

CHESAPEAKE AND OH10 RAILWAY COMPANY, PETITIONER
v.
NANCY J. SCHWALB AND WILLIAM MCOLONE

NORPOLK AND WESTERN RAILWAY COMPANY, PETITIONER
vy.
Rosert T. Goope, Jr.

ON PETITIONS FOR WRITS OF CERTIORARI
TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHA LES PRIED
Solictto Generail
Davin L. SHAPIRO
Deputy Solicitor General

CHRISTINE DESAN HUSSON
Assistant to the Solicitor General

Department of Justice
Washington, D.C. 20530
(202) 633-2217
GEORGE R. SALEM
Solicitor af Labor
ALLEN H. FELOMAN
Associate Solicitor

CHARLES |. HADDEN
Deputy Associate Solicitor

CHRISTINE L. OWENS
Attorney

Deparimeni of Labor
Washington, D.C. 20210

sf

on a covered site who perform work that is an essential element
or integral part of the process of loading or unloading.

TABLE OF CONTENTS
Page
sec aid ddwtecccccescvces l
ES 6
EE ES EE OE 18
TABLE OF AUTHORITIES
Cases:
Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037 (4th
cc eetecccs 16
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) .................. 17
Conti v. Norfolk & W. Ry., 366 F.2d 890 (4th Cir.
Eee. Cee ki eee idbeebeocecceccecccce 16
Director, Office of Workers’ Compensation Programs v.
Perini North River Assocs., 459 U.S. 297 (1983) ...... 6, 8
Garvey Grain Co. v. Director, Office of Workers’ Com-
pensation Programs, 639 F.2d 366 (7th Cir. 1981)... . 14
Harmon v. Baltimore & O.R.R., 741 F.2d 1398 (D.C.
EEE 14, 16
Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985) ..... 5, 10, 13
Hullinghorst Indus., Inc. v. Carroll, 650 F.2d 750 (Sth
Cir. 1981), cert. denied, 454 U.S. 1163(1982)......... 14
Morrison-Knudsen Constr. Co. v. Director, Office of
Workers’ Compensation Programs, 461 U.S. 624
eile a os ciceuine eb cocseccscccce 17
NLRB v. International Longshoremen’s Ass'n, 447 U.S.
a ees ope cere: 10
Newport News Shipbuilding & Drydock Co. vy. Graham,
$73 F.2d 167 (4th Cir.), cert. denied, 439 U.S. 979
ee ks te dmchoocecees 13
Northeast Marine Terminal Co. v. Caputo, 432 U.S.
i mace eansees 5, 6, 8,
9, 10, 11, 12, 17
P.C. Pfeiffer Co. \. Ford, 444 U.S. 69 (1979) .......... 6, 7, 8,
9, 10, 12, 13
Pennsylvania R.R. v. O'Rourke, 344 U.S. 334 (1953) .... 16
Price v. Norfolk & W. Ry., 618 F.2d 1059 (4th Cir.
DPES coueWU ddkcoe seb be AS eS eee 4, 5, 14, 16
(lil)

Cases — Continued: Page

Prolerized New England Co. v. Benefits Review Bd., 637
F.2d 30 (ist Cir. 1980), cert. denied, 452 U.S. 938

GED See docdncvcccescccesceceesesoeses cass tones 14
Prolerized New England Co. v. Miller, 691 F.2d 45 (ist

5 = PPPPPTTITITITITTT LTTE 14
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

ss PPP EPPPTOTITITITIT TTI TETTT TTT TTT 17
Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350

DB. TRO GIIED «cc ccccccvcccscccccccccccesesesons 8

Sea-Land Services, Inc. v. Director, Office of Workers’
Compensation Programs, 685 F.2d 1121 (%h Cir.

SE Gh ndek bode chadhebeodbecbbsdoebethdsvees cece 14, 15
Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) ....... 8
Sun Ship, Inc. v.. Pennsylvania, 447 U.S. 715 (1980) ..... 7
Verderane v. Jacksonville Shipyards, Inc., 20 Ben. Rev.

Bd. Serv. (MB) 62 (1984) .... 2... cece 17
Vogelsang v. Western Maryland Ry., 670 F.2d 1347

i ch ne Shen ck cecgceneeeceoveees 16
Voris v. Eikel, 346 U.S. 328 (1953) . 2... 0 ccc 9
Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (%h Cir.

1975), cert. denied, 429 U.S. 868 (1976).............. 5, 15
White v. Norfolk & W. Ry., 217 Va. 823, 232 S.E.2d

807, cert. denied, 434 U.S. 860(1977).............. 4, 14, 15
Wuellet v. Scappoose Sand & Gravel Co., 18 Ben. Rev.

ee ED oad dunce cbccesodnebonss 17
Zenith Radio Corp. v. United States, 437 U.S. 443

SEE. VeeSenudooenecéecedsscasunveeseeesdseeeess 17

Statutes:

Federal Employers’ Liability Act, 45 U.S.C. 51 ef seg. ... 3
Longshore and Harbor Workers’ Compensation Act, 33

ceca cdc coceneseseebecsescetvens 3
DEED oo oc oevecccrcccccocons 4, 8,9, 17
§ 2(3), 33 U.S.C. 902(3) (Supp. IV 1986) ........... 4,11
SD ED ct naraccsdcvcccetterecece 8
8 8 rere aaron 16

Longshore and Harbor Workers’ Compensation Act
Amendments of 1984, Pub. L. No. 98-426, § 27(d)(1),
Pt MO cscacy canedddsvs tes dunwtenctdesvess 3

H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972) ........ 8,9, 10
H.R. Rep. No. 570, 98th Cong., Ist Sess. (1983) ........ il
S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) ........... 8, 9-10

S. Rep. No. 81, 98th Cong., Ist Sess. (1983) ............ 10

SE Ne SS se eee

In the Supreme Court of the Anited States

OCTOBER TERM, 1988

No. 87-1979
CHESAPEAKE AND OHIO RAILWAY COMPANY, PETITIONER
Vv.

NANCY J. SCHWALB AND WILLIAM MCGLONE la

No. 88-127
NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER
v.
ROBERT T. Goope, JR.

ON PETITIONS FOR WRITS OF CERTIORARI
TU THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court's order in-
viting the Solicitor General to express the views of the United
States.

STATEMENT

1. Petitioners, Chesapeake and Ohio Railway Company
(C&O) and Norfolk and Western Railway Company (N&W),
operate coal loading terminals in the Hampton Roads area of
Virginia. ©&O’s terminal abuts the James River (87-1979 Pet.
7), while N&W’s facility, known as Lambert's Point, adjoins the
Elizabeth River (88-127 Pet. 7). Petitioners’ freight trains
transport coal mined inland for loading onto ships docked at
the terminals’ piers. Upon arrival, the coal-laden railway cars re-

(1)

2

main in the terminals’ “barney” yards until the shiploading proc-
ess begins. Pet. App. 8A-9A, 46A.'

The process of loading coal into ships’ holds is highly mecha-
nized and, in all material respects, identical at both petitioners’
terminals. When shiploading begins, railway cars move one-by-
one from the barney yards and onto “dumpers” at the land end
of the piers. A mechanical device called a “retarder” stops each
loaded coal car at the correct position on the dumper. Next,
other mechanical devices lift and rotate the car, so that its con-
tents drop through a hopper to conveyor belts that feed the coal
directly onto the waiting ships. After unloading, the cars roll
back to the terminals’ holding yards, from which they are even-
tually sent inland. Barring mechanical failure or other incident,
the coal loading process is continuous from the time a car leaves
ihe barney yard until it returns, empty, to the holding yard. Pet.
App. 3A-4A, 46A-48A; 87-1979 Pet. 7-9; 88-127 Pet. 8-9.

The respondents in No. 87-1979, Nancy J. Schwalb and
William McGlone, were laborers employed by C&O to perform
general cleaning at its terminal. Though each had varied duties,
they both were frequently required, during the actual ship-
loading process, to clear away coal that spilled from the con-
veyor belts and the “trunnion rolle>s,” the devices at the ends of
the dumper that enable it to rotate suspended railway cars.
Failure to clear away this “trash coal” results in malfunction of
the shiploading equipment, thus halting the loading process.
Pet. App. 3A-4A, 20A-21A, 23A-24A; 87-1979 Pet. 9. While
Schr alb and McGlone easily could have replaced the trash coal
on the conveyor belts, applicable union agreements prohibited
them from dog so; rather, laborers from a different depart-
ment performed that task (Pet. App. 4A; 87-1979 Pet. 9-10;
87.1979 Br. in Opp. 5).

The respondent in No. 88-127, Robert J. Goode, Jr., was a
machinet for N&W who worked in the Motive Power Depart-

Tike oomcents of Lhe appendioss to the petitions un cach case are essentially
wiewe Oa. Cee foe thew order Therefore, tor case of reference, we refer only
oe Apoeedia @ No. §°-19°9, ced as “Per. App.”

the coal facility, with machinists in the

Schwalb sustained a serious head injury on January | 1, 1983,
when she fell while walking to clear trash coal from the trunnion
rollers (87-1979 Pet. 10-11; 87-19/9 Br. in Opp. 2). McGlone
was injured on February |, 1983, as he was attempting to clear
away trash coal beneath a moving conveyor beit Pei.
10; 87-1979 Br. in Opp. 3). Goode was injured on il,
1985, while repairing the retarder located on one of the dumpers
at Lambert's Point (88-127 Pet. 9-10; 88-127 Br. in Opp. 2-3).
Each respondent brought a timely action under the Federal Em-
ployers’ Liability Act (FELA), 45 U.S.C. 51 ef seg., in the ap-
propriate circuit court of the State of Virginia (Pet. App. 2A,
88-127 Br. in Opp. 2). C&O filed special pleas to the courts’
jurisdiction, conter.ding that the respondents’ exclusive remedy
was under the Longshore and Harbor Workers’ Compensation
Act (LHWCA), 33 U.S.C. 901 ef sey.’ N&W moved to dismiss
on the same basis. Pet. App. I9A, 23A, 45A.

2. The courts for the Third Judicial Circuit (AfcGione),
Fourth Judicial Circuit (Goode), and Seventh Judicial Circuit
(Schwailb) of Virginia each decided that the LHWCA applied to
respondents’ claims, sustained petitioners’ jurisdicticnal
challenges, and dismissed the FELA actions (Pet. App.
31A-34A, 45A). In each case, the court found no serious dispute
that the respondents satisfied the LHWCA's “situs” requirement
by working in a statutorily covered geographical area (Pei. App.
20A, 24A-25A, 56A), and thus focused principally on whether

> N&W employs machinists throughout its rail system, assigning them to
different sates and different jobs on the basis of semorny (Pet. App. 484-494.

88-127 Br. in Opp. 5-6).

* The Longshoremen’s and Harbor Workers’ Compensation Act was re
tuled by the Longshore and Harbor Workers’ Compensation Act Amend
ments of 1984, Pub. L. 98-426, § 27%0G¢N1), 98 Star 1654

a ea ae

4

the respondents were “employee[s]” as defined by Section 2(3)
of the Act, 33 U.S.C. 902(3) (1982 & Supp. IV 1986).

In resolving this issue of employee status, the circuit courts in
the McGlone and Goode cases explicitly acknowledged a con-
flict between the restrictive approach to the question that the >
Virginia Supreme Court followed in White v. Norfolk & W.
Ry., 217 Va. 823, 232 S.E.2d 807, cert. denied, 434 U.S. 860 )
(1977), and the more expansive standard adopted by the federal
courts of appeals in such decisions as Price v. Norfolk & W.
Ry., 618 F.2d 1059 (4th Cir. 1980) (Pet. App. 25A-29A, 53A).
The courts viewed the Virginia Supreme Court’s White standard
as confining LHWCA coverage to those workers on the situs
who were “directly involved” in the loading of cargo (id. at 26A,
52A-53A). By contrast, the courts believed, the prevailing
standard among the federal courts of appeals is considerably
bi oader, encompassing all workers on the situs whose jobs com-
prise “an essential element in the loading and unloading of the
vessels” (id. at 27A-28A, 54A). As the McGlone court inter-
preted it, the federal standard does not require an employee to
be involved “in the actual loading of ships,” if the maintenance
work the employee performed “was essential to the movement
of maritime cargo” (id. at 27A). The McGilone and Goode
courts resolved this conflict between state and federal court in-
terpretations against adherence to the Virginia Supreme Court's
test: in their view, following White “would be to interpret a
Federal law contrary to all of the decisions of the Federal
courts” (id. at 28A), and the test formulated by the federal
courts was, in fact, the proper test (id. at 53A-54A).

Applying the federal courts’ status test, the Virginia circuit
courts concluded that the LHWCA covered the respondents be-
cause they performed tasks essential to the loading of coal at
petitioners’ terminals. McGlone’s cleaning duties were essential
because the failure to clear away coal that had fallen from the
belts “would eventually interfere with the loading operation and
bring it to a halt” (Pet. App. 24A). Similarly, Schwalb’s cleaning
duties conferred LHWCA coverage because “if the spilled coal
was not removed * * * it could have haulted [sic] the process of

ieiiiten din Sean ae

5

loading the coal aboard the vessels” (id. at 21A). And Goode
was an employee under the LHWCA because he maintained and
repaired equipment and machines “directly and solely related to
the loading and unloading operation” (id. at 52A), and was thus
“involved in the essential elements of loading and unloading”
(id. at 51A, citing Herb’s Welding, Inc. v. Gray, 470 U.S. 414,
423 (1985)).*

3. The Supreme Court of Virginia consolidated Schwalb’s
and McGlone’s appeals and reversed (Pet. App. 1A-18A).
Although acknowledging that the United States Court of Ap-
peals for the Foursh Circuit had applied the LHWCA to a
painter who did not actually handle cargo but who had mainte-
nance duties essential to the “entire [loading] process” (id. at
12A (quoting Price, 618 F.2d at 1062 n.4)), and agreeing here
that the failure to remove “trash coal” could interrupt that proc-
ess (Pet. App. 4A), the Virginia court rejected the Price court’s
reasoning and conclusion (id. at 12A, 16A-17A), refused to
adopt the “overall process” standard and adhered, instead, to
the restrictive test set out in White (id. at 16A-17A). Under that
test, the court held, workers must show that their “ ‘own work
and employment’ ” bears “ ‘a realistically significant relation-
ship’ to ‘traditional maritime activity involving navigation and
commerce on navigable waters,’ ” to bring themselves within the
LHWCA (id. at 10A-11A, quoting Weyerhaeuser Co. v.
Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, 429
U.S. 868 (1976)). Reading this Court’s “essential elements of
[loading or] unloading” language in Northeast Marine Terminal
Co. v. Caputo, 432 U.S. 249 (1977), to limit LHWCA coverage
only to those employees actually “engaged in the handling of
cargo” (Pet. App. 14A (quoting 432 U.S. at 267)), the Virginia
Supreme Court corcluded that “the [Northeast Marine Ter-
minal] ‘essential elements’ standard is more nearly akin to the
{ White] ‘significant relationship’ standard * * * than the ‘overall

+ The circuit court in Goode, explicitly concluding that the federal standard
should prevail over the state’s White standard to the extent that the standards
differed, nevertheless held that the activities of Goode qualified him for
coverage under the White test as well (Pet. App. 53A).

6

process’ construction” (Pet. App. at 16A). Without considering
how essential their duties were to the overall loading process,
the court held that since Schwalb and McGlone performed
“purely housekeeping and janitorial tasks,” they “were not
statutory employees as defined in the LHWCA” (id. at 17A). )
Application of the White test thus required reversal of the cir-

cuit courts’ judgments. Subsequently, relying on its opinion in

Schwalb, the Virginia Supreme Court reversed the judgment in

Goode as well (Pet. App. 58A-59A).°

~ 7

DISCUSSION

These cases present this Court with an excellent opportunity
to examine the scope of landward coverage under the “status”
provision of the 1972 amendments to the Longshore and Har-
bor Workers’ Compensation Act. The Court has faced the ques-
tion twice before, see P.C. Pfeiffer Co. v. Ford, 444 U.S. 69
(1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977), each time finding the employees covered because “they
were ‘engaged in longshoring operations,’ and thus fit one of the
categories explicitly enumerated by Congress as part of ‘mari-
time employment.’” Director, Office of Workers’ Compensa-
tion Programs v. Perini North River Assocs., 459 U.S. 297, 318
n.27 (1983). As the Court has recognized (ibid.), in neither case
did it determine that the concept of “maritime employment” re-
quired “an examination into whether the employment had a
‘direct’ or ‘significant relationship to navigation or commerce.’ ”

’ The Court did not consider, as an independent ground on which it could
sustain the lower court’s holding, the fact that Goode’s duties as a pier
mechanic at times involved work “over the water” (88-127 Br. in Opp. 6;
88-127 Pet. App. 26A, 33A), and that such work therefore may have qualified
Goode as a covered employee under Northeast Marine Terminal, 432 U.S. at
273 (post-1972 LHWCA meant to cover “amphibious workers” or those who
spent “at least some of their time in indisputably longshor‘ng operations and
who, without the 1972 Amendments, would be covered for only part of their
activity”) and Director, Office of Workers’ Compensation Programs v. Perini %
North River Assocs., 459 U.S. 297, 311-312 (1983) (workers injured on fy
navigable waters before 1972 covered under LHWCA without regard to duties i
performed; post-1972 Act covers all previously covered). :

The Supreme Court of Virginia has attempted to create a
“significant relationship” test here, one that is severely limited in
scope. The Virginia court’s decisions in White and the instant
cases make that limitation clear: the court’s test essentially re-
quires workers claiming coverage because of stevedoring or
similar activities to demonstrate that they are actually loading or
unloading maritime cargo (either by physically hand!:ng the
cargo or by manipulating machinery used for that purpose) in
order to bring themselves within the LHWCA’s ambit. This test
conflicts with the expansive interpretation of the LiHWCA’s
status provision suggested by its statutory language and
legislative history, accorded that provision by this Court, and
uniformly applied by the federal courts of appeals, the Depart-
ment of Labor, and the Benefits Review Board (BRB). The con-
flict creates uncertainty over the proper test for employment
status that invites forum-shopping among injured workers, im-
plicates the Department of Labor’s administration of the
LHWCA program, and potentially impinges on the rights and
interests of employers and employees alike.® These results
frustrate Congress’s intent that “a simple, uniform standard of
coverage” apply under the LHWCA. Pfeiffer, 444 US. at 83.
Given the practical importance of the issue and the disagree-
ment among the lower courts addressing it, review by this Court
is warranted.

1. The language and legislative history of the 1972 amend-
ments to the LHWCA indicate that a broad reading of the

© In this case, because the FELA provides potentially lucrative, albeit uncer-
tain, relief if the LHWCA does not cover respondents, a finding of no
LHWCA coverage may well inure to their immediate financial benefit. The
possible advantage presented by a “no LHWCA coverage” finding to these
respondents, however, does not illuminate the inquiry into the scope of the
LHWCA’s status requirement. In numerous other situations, to preclude
coverage of claimants who, like respondents, perform tasks integral to the
loading and unloading process, would be to consign them to “the paucity of
relief under state compensation laws.” Sun Ship, Inc. v. Pennsylvania, 447
U.S. 715, 723 (1980). That result would be plainly inconsistent with Congress’s
intent in its 1972 landward extension of the LHWCA, to alleviate the problem
of inadequate state remedies (ibid. ).

8

coverage provided by the statute is required. These amendments
were intended to remedy several problems. First, Congress
sought to eliminate circumvention of the LHWCA compensa-
tion system through resort to an action for unseaworthiness.’
See S. Rep. No. 1125, 92d Cong., 2d Sess. 1-2, 5-12 (1972);
H.R. Rep. No. 1441, 92d Cong., 2d Sess. 1-8 (1972); Perini, 459
U.S. at 313; Northeast Marine Terminal, 432 U.S. at 260-261.
In addition, Congress sought to expand the Act’s scope; it
wanted to remedy a coverage anomaly that limited longshore
and harbor workers to recovering LHWCA benefits for work-
related injuries sustained on navigable waters and left those who
sustained similar injuries on the adjoining land without an
LHWCA remedy. See S. Rep. No. 1125, supra, at 1, 12-13;
H.R. Rep. No. 1441, supra, at 10-11; Perini, 459 U.S. at
306-312; Northeast Marine Terminal, 432 U.S. at 256-265;
Pfeiffer, 444 U.S. at 72-73.

Congress effected the coverage change through two specific
amendatory clauses. First, it modified the Act’s “situs” require-
ment, expanding the definition of “navigable waters” under Sec-
tion 3(a), 33 U.S.C. 903(a), to include “ ‘any adjoining pier,
wharf, dry. dock, terminal, building way, marine railway, or
other adjoining area customarily used by an employee in
loading, unloading, repairing, or building a vessel.’ ” Northeast
Marine Terminal, 432 U.S. at 263. This case involves the second
of the amendatory clauses, the new “status” requirement Con-
gress added to Section 2(3), 33 U.S.C. 902(3), “to describe affir-
matively the class of workers [it] desired to compensate.” North-
east Marine Terminal, 432 U.S. at 264. Under the amended
Status test, LHWCA coverage extends to injured workers “en-

’ Prior to the 1972 amendments, a longshoreman or related worker could .

bring an unseaworthiness action for injury incurred on board a ship againsi
the owner of that ship, and could do so even if the condition causing the injury
had been the fault of the longshoreman or his employer. See, e.g., Seas Ship-
ping Co. v. Sieracki, 328 U.S. 85 (1946). The shipowner could then recover the
damages paid to the worker from that worker's employer under theories of ex-
press or implicit warranty of workmanlike performance. See, e.g., Ryan
Stevedoring Co. v. Pan Atlantic $.S. Corp., 350 U.S. 124 (1956).

—— ———

9

gaged in maritime employment,” including specifically “any
longshoreman or other person engaged in longshoring opera-
tions, and any harbor-worker including a ship repairman, ship-
builder, and shipbreaker * * *.” 33 U.S.C. 902(3).

Congress did not define “maritime employment,” “longshore-
man,” or “longshoring operations” in either the Act or its
legislative history. See Northeast Marine Terminal, 432 U.S. at
265.* However, the broad language of the status test itself sug-
gests that the courts should take “an expansive view of [its] ex-
tended coverage.” /d. at 268.

The remedial purpose of the statute reflected in the legislative
history further supports an expansive view of the Act’s
coverage. Northeast Marine Terminal, 432 U.S. at 268 (citing
Voris v. Eikel, 346 U.S. 328, 333 (1953)). As chronicled by this
Court (see 432 U.S. at 268-273), Congress decided to extend the
coverage of the Act shoreward because of two main concerns.
First, pre-1972 benefits under the LHWCA extended only to
those longshore and harbor workers who were injured over
navigable waters; injuries occurring on land were covered by
state workers’ compensation laws. The result was “a disparity in
benefits payable * * * for the same type of injury depending on
which side of the water’s edge and in which State the accident
occurs.” S. Rep. No. 1125, supra, at 12; H.R. Rep. No. 1441,
supra, at 10. Moreover, the disparity between federal benefits
and generally lower state benefits was to widen after the passage
of the federal benefit reforms contained in the 1972 amendments.
S. Rep. No. 1125, supra, at 12-13; H.R. Rep. No. 1441, supra,
at 10; Pfeiffer, 444 U.S. at 83; Northeast Marine Terminal, 432
U.S. at 262. Second, Congress recognized that the realities of
modern shipping practices, including containerization and other
technological innovations, had moved much of the longshoring
work it wished to protect onto the land. S. Rep. No. 1125,

* The Committee reports accompanying the Act posit only a single “typical
example” of the new status requirement, which, though useful in identifying
the outer bounds of coverage, clearly “does not speak to all situations.” North-
east Marine Terminal, 432 U.S. at 266, 267.

10

supra, at 13; H.R. Rep. No. 1441, supra, at 10; Northeast
Marine Terminal, 432 U.S. at 270.°

These concerns support a liberal construction of the Act’s
landward coverage —a construction that focuses on the occupa-
tions of those the Act seeks to protect instead of on the “for-
tuitous circumstance” of where they are injured (S. Rep. No.
1125, supra, at 13; H.R. Rep. No. 1441, supra, at 10; see Pfeif-
fer, 444 U.S. at 78-84; Northeast Marine Terminal, 432 U.S. at
272-273), and that makes allowance for changing technology
(see Northeast Marine Terminal, 432 U.S. at 269-271). As this
Court has articulated the functional approach of the status pro-
vision, all employees “involved in the essential elements of
loading and unloading” meet the status requirement of the Act;
employees are excluded if they are “ ‘not engaged in the overall
process of loading or unloading.’” Herb’s Welding, Inc. v.
Gray, 470 U.S. 414, 423 (1985) (quoting Northeast Marine Ter-
minal, 432 U.S. at 267 (emphasis added)). Coverage thus ex-
tends to any worker “responsible for some portion of” the
loading and unloading activity since he or she is “as much an in-
tegral part of the process * * * as a person who participates in
the entire process.” Pfeiffer, 444 U.S. at 82-83.

In 1984, Congress amended the status provision “to reaffirm
the purposes of the 1972 jurisdictional changes, and in that light
* * * [to exclude] certain fairly identifiable employers and em-
ployees” who, although at work on a covered situs, lack “a suffi-
cient nexus to maritime navigation and commerce.” S. Rep. No.
81, 98th Cong., Ist Sess. 25 (1983).'° The amended provision
excludes only certain narrow categories of employees more
tenuously connected to maritime work than those involved

* The enormity of the change in the longshoring industry effected by con-
tainerization alone, and the difficulties that change engenders when it is
necessary to identify “longshoring tasks” have been documented by this Court.
See NLRB v. International Longshoremen’s Ass'n, 447 U.S. 490 (1980) (con-
cerning appropriate focus of work preservation agreement in longshoring in-
dustry under National Labor Relations Act).

‘© The 1984 amendments and their history are directly relevant to the instant
case involving respondent Goode, who was injured on February 11, 1985
(88-127 Br. in Opp. 7).

2

1]

here,'' but excludes them only if they are eligible for state
workers’ compensation programs. 33 U.S.C. 902(3) (Supp. IV
1986).'2, Moreover, Congress in 1984 indicated that it con-
sidered coverage of employees under the Act appropriate either
“because of the nature of the work which they do, or the nature
of the hazards to which they are exposed.” H.R. Rep. No. 570,
supra, at 4. This broad approach clearly includes workers
facilitating a loading process, who are subject to the same
harbor-side risks as those actually handling cargo.

Thus, both the language of the status provision and the pur-
poses expressed by Congress in 1972 and 1984 support a broad,
functional approach to the landward coverage of the LHWCA,
rather than the restrictive standard applied by the Supreme
Court of Virginia.

2. The state court’s standard is also inconsistent with the
principles of coverage enunciated by this Court and followed by
the lower federal courts.

a. In Northeast Marine Terminal Co. v. Caputo, supra, this
Court first determined the reach of LHWCA coverage under
the status provision of the 1972 amendments. The case involved
two employees, a “checker” (the worker responsible for check-
ing and recording cargo as it is loaded or unloaded) and a long-
shoreman who at the time of injury was working as a “terminal
laborer” helping to load already-discharged cargo into con-
signees’ trucks. After reviewing the history of the LHWCA with
attention to Congress’s continued efforts to provide uniform

'! The amendments exclude from coverage, inter alia, “individuals em-
ployed exclusively to perform office clerical, secretarial, security, or data proc-
essing work, * * * [or] employed by a marina and who are not engaged in con-
struction, replacement, or expansion of such marina (except for routine
maintenance).” 33 U.S.C. 902(3) (Supp. IV 1986). Even these carefully limited
exclusions “are intended to be narrowly construed.” H.R. Rep. No. 570, 98th
Cong., Ist Sess. 5 (1983).

‘2 In the words of the House Report, workers not protected by state pro-
grams would “remain under the coverage of the Longshore Act,” to whatever
extent they were already covered by the Act’s broad definition of maritime
employment. H.R. Rep. No. 570, 98th Cong., Ist Sess. 5 (1983) (emphasis
added).

12

coverage to “amphibious workers” (432 U.S. at 256-265, 273),
the Court concluded that the Act’s status provision should be in-
terpreted broadly and in functional terms. The Court held that
the “checker” satisfied the status requirement because, although
his longshoring functions had been somewhat changed by tech-
nology (the employee was checking the contents of a container
on shore on the day of the accident), his work was “an integral
part of the unloading process as altered by the advent of con-
tainerization.” Jd. at 271. The Court held that the “terminal
laborer” also met the status requirement; since he spent some of
his time in “indisputably longshoring operations” (id. at 273),
the Act’s “focus on occupations and its desire for uniformity”
sdpported continuous coverage under the LHWCA (id. at 276).

The Court explicitly rejected restrictions that would have ar-
tificially curtailed its functional analysis. First, it denied that
union membership should determine eligibility as a “longshore-
man” under the Act, noting that “[t}he vagaries of union
jurisdiction are unrelated to the purposes of the Act.” Northeast
Marine Terminal, 432 U.S. at 268 n.30. Second, the Court re-
jected a limitation not unlike that adopted by the Virginia court
here. The Court held that the “point-of-rest” doctrine — accord-
ing to which “stevedoring” was limited to loading or unloading
operations seaward of the first “point of rest” on a pier or dock
from which cargo is moved into vessels or removed for further
transport ashore — was incompatible with the Act’s objective of
extending uniform coverage on an occupational basis. /d. at
275, 276.

This Court confirmed its expansive interpretation of the land-
ward extension of coverage in P.C. Pfeiffer v. Ford, supra,
where it found coverage for two workers, neither of whom load-
ed or unloaded material directly to or from boats.'? The Court

‘3 Ford was a “warehouseman” injured while fastening military vehicles
(which had been unloaded from a vessel days before) to a railroad flatcar. He
was prohibited from moving cargo either directly from a vessel to a point of
rest in storage or to a railroad car, or directly from a shoreside point of rest
onto a vessel, by union rules reserving such work for longshoremen. Pfeiffer,
444 U.S. at 71. Bryant was a “cotton header” injured while unloading cotton

13

rejected any resurrection of the artificial distinctions imposed
by union labels or the point-of-rest theory (444 U.S. at 81-82)
and also rejected the creation of similar restrictions by employer
“assignment policies” (id. at 83). Rather, the Court focused on
the “nature of the activity” to which a worker could be assigned:
it noted that “{IJand-based workers who do not handle con-
tainerized cargo also may be engaged in loading, unloading,
repairing, or building a vessel” because “[p]ersons moving cargo
directly from ship to land transportation are engaged in mari-
time employment * * * [and one] responsible for some portion
of that activity is as much an integral part of the process of
loading or unloading a ship as a person who participates in the
entire process” Jd. at 80, 82-83 (citation omitted); see also
Herb’s Welding, 470 U.S. at 423.

Consistently with the rationale of these decisions, the courts
of appeals uniformly view the question of whether employees
are “engaged in maritime employment” from a functional
perspective, focusing on the nexus between a worker’s actual
duties and the overall process of loading and unloading cargo.'*
This approach takes into account the reality of conventional
longshoring operations: that maritime employment today is
significantly affected by technology, job specialization, and the
“vagaries of union jurisdiction.” Thus, although using slightly
varying terms, the courts of appeals have extended coverage
under the Act to any employee on a covered situs whose actual
duties comprise an “essential element” or “integral part” of the
overall loading and unloading process, even if those duties do
not themselves include physically or mechanically loading or un-
loading maritime cargo. This test specifically encompasses
workers who, like respondents, engage in cleaning, mainte-

from its land transport by wagon into a pier warehouse. His loading activities
were limited by union rules similar to those applied to Ford. /d. at 71-72.

'4 The courts take an identical tack in determining whether employees are
“harbor-workers” engaged in ship repair, shipbuilding, and shipbreaking. See,
e.g., Newport News Shipbuilding & Drydock Co. v. Graham, $73 F.2d 167
(4th Cir.), cert. denied, 439 U.S. 979 (1978).

14

nance, and repair of equipment used to load ships.'*

b. In holding that respondents were not employees under
the LHWCA, the Virginia Supreme Court expressly rejected the
courts of appeals’ functional test ar - adhered, instead, to its
earlier decision in White v. Norfolk & W. Ry., supra. Pet. App.
17A. White limited coverage under the Act to those employees
having a “ ‘realistically significant relationship’ to ‘traditional
maritime activity involving navigation and commerce on
navigable waters.’ ” 217 Va. at 832, 232 S.E.2d at 812 (quoting

'S See, e.g., Harmon v. Baltimore & O.R.R., 741 F.2d 1398, 1404 (D.C.
Cir. 1984) (railroad worker injured while repairing coal loading equipment is
covered employee because his “functions were an integral part of the process
of unloading and loading vessels and were vital to the movement of maritime
cargo”); Prolerized New England Co. v. Miller, 691 F.2d 45, 47 (Ist Cir. 1982)
(worker performing maintenance of ship loading equipment plays “integral
part” in loading process); Sea-Land Services, Inc. v. Director, Office of
Workers’ Compensation Programs, 685 F.2d 1121, 1123 (9th Cir. 1982)
(LHWCA applies to mechanic responsible for repairing equipment used to
load cargo onto ships and move it within terminal area because “repair and
maintenance of equipment necessary to loading and unloading ships is integral
to the process and is therefore ‘maritime employment’ ”); Hullinghorst Indus.,
Inc. v. Carroll, 650 F.2d 750, 755-756 (Sth Cir. 1981) (carpenter building scaf-
folding for repairs to loading pier engaged in “maritime employment,” since
“the maintenance and repair of tools, equipment, and facilities used in in-
disputably maritime activities lies within the scope of ‘maritime employment’ ”
under the Act and such work is “an integral part * * * an essential and in-
dispensable step in the [pier] repairs to be effected”), cert. denied, 454 U.S.
1163 (1982); Garvey Grain Co. v. Director, Office of Workers’ Compensation
Programs, 639 F.2d 266, 370 (7th Cir. 1981) (millwright responsible for main-
tenance and repair of shiploading equipment is employee under LHWCA,
since these “functions are an integral part of the loading and unloading” pro-
cess and “are directly connected with and are vital to the movement of mari-
time cargo”); Prolerized New England Co. v. Benefits Review Bd., 637 F.2d
30, 37 (ist Cir. 1980) (coverage extends to employee whose duties include
shortening scrap steel for shipment because “[vJiewed in terms of this func-
tional analysis * * * {the claimant's] repair, maintenance and occasional
operation of the varied elements of Prolerized’s integrated loading system
qualify as peculiarly maritime services”), cert. denied, 452 U.S. 938 (1981);
Price v. Norfolk & W. Ry., 618 F.2d 1059, 1061 (4th Cir. 1980) (railroad
worker injured while painting “gallery” used for loading grain into ships falls
within LHWCA's ambit because “[t}he gallery, and its maintenance, are essen-
tial to the loading and unloading of all vessels”).

ne

15

Weyerhaeuser Co. v. Gilmore, 528 F.2d at 961).'* The White
decision makes clear that the court views the “realistically
significant relationship” test as requiring direct involvement in
the physical process of loading and unloading cargo. Thus,
although White’s duties required him to maintain electrical
equipment essential to the coal loading process, the court con-
cluded that he lacked the requisite “realistically significant rela-
tionship to the loading of cargo on ships,” because he was “not
actually handling any cargo, either manually or mechanically,”
and “was not manipulating * * * any of the controls of the elec-
trical mechanism, which furnished the power for this automated
loading process.” 217 Va. at 832-833, 232 S.E.2d at 813. Apply-
ing White, the court concluded here that respondents Schwalb
and McGlone were not statutory employees because they also
were not actually “ ‘engaged in the handling of cargo’ ” (Pet.
App. 14A), notwithstanding that failure to clean trash coal
from the rollers and belts would halt the loading process (id. at
4A) and that only the “vagaries of union jurisdiction” —
specifically, union agreements covering various groups of
workers at the terminal—prohibited Schwalb and McGlone
from placing the coal back on the belts (id. at 4A). The court
applied its narrow approach again when it ruled that respondent
Goode was not an employee under the Act, although Goode’s
duties consisted largely of maintenance and repair of machinery
and equipment used exclusively for coal loading in a terminal
where loading apparently is almost entirely automated (see id. at
46A-48A).

We believe that the Supreme Court of Virginia erred in
reading this Court’s opinions to direct so restrictive a standard
for landward coverage under the LHWCA. The Virginia court

\6 The Virginia Supreme Court’s continued reliance on Weyerhaeuser Co. v.
Gilmore is misplaced. The Ninth Circuit has made it clear that it reads Weyer-
haeuser’s “realistically significant relationship” language to mean that “repair
and maintenance of equipment necessary to loading and unloading ships is in-
tegral to the process and is therefore ‘maritime employment’ covered by the
Act.” Sea-Land Services, Inc., 685 F.2d at 1123. Thus, the Ninth Circuit ap-
plies its Weyerhaeuser formulation in harmony with authority in the other
federal circuits.

7

16

reads the “essential elements” and “overall process” language in
Northeast Marine Terminal and Pfeiffer in far too cramped a
manner (Pet. App. 13A-16A), giving no effect to the directive in
those cases that the Act’s coverage be viewed expansively, and
making no accommodation for the impact of modern tech-
nology on cargo handling techniques, for the high degree of job
specialization, or for the extent of uniorization within the
longshore industry.'’ In addition, the conflict between the state
court’s decision and the weight of federal authority in and of
itself offends Congress’s goal of applying a “simple, uniform
standard of coverage” to LHWCA claizis.'*

3. A restrictive interpretation of landward coverage under
the LHWCA conflicts with the Department of Labor’s inter-

‘7 Thus, for example, but for the union contracts that prohibited them from
placing the trash coal that they had cleared away back on the conveyor belts,
Schwalb and McGlone indubitably would have done so. They would then have
been involved directly in the actual loading process.

'®§ Goode also makes an unpersuasive argument that the state court’s exclu-
sion of him from LHWCA coverage is not at odds with the overwhelming
weight of federal case law because, until the “unloading process had been com-
pleted, the coal was still in land transportation and was not in the process of
being loaded aboard a ship” (88-127 Br. in Opp. 20-21). The circuit court
specifically found that “the process of loading the coal into vessels begins”
once the rail cars leave the barney yard (Pet. App. 46A), and Goode has not
even suggested that this finding should be set aside. Additionally, although the
decision of the Fourth Circuit in Conti v. Norfolk & W. Ry., 566 F.2d 890
(1977) (brakemen injured at Lambert’s Point were not employees under the
LHWCA) supports Goode’s argument, we agree with the observation of the
Court of Appeals for the District of Columbia Circuit that the Fourth Circuit
has “moved away from using the distinction between ‘traditional railroading
tasks’ and ‘traditional maritime tasks’ as the sole inquiry, or the dispositive
issue in LHWCA cases.” Harmon v. Baltimore & O.R.R., 741 F.2d 1398, 1404
(1984) (citing Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037, 1050 (4th
Cir. 1980) (Conti cited only for “integral part” language); Price, supra (draw-
ing no Conti-like distinction between “traditional railroading” as opposed to
“traditional maritime” tasks), and Vogelsang v. Western Maryland Ry., 670
F.2d 1347, 1348 (4th Cir. 1982) (distinguishing Conri)). This and other courts
have, of course, found railroad workers covered by the LHWCA despite the
parallel coverage of the FELA, see, e.g., Pennsylvania R.R. v. O'Rourke, 344
U.S. 334 (1953); Harmon, supra; Vogelsang, supra; Price, supra, and in such
circumstances LHWCA coverage is excluSive under 33 U.S.C. 905.

17

pretation of the Section 2(3) status requirement, which it has
consistently applied since 1972 in administering the LHWCA
workers’ compensation program. See Northeast Marine Ter-
minal, 432 U.S. at 272 (Director’s view that “ ‘maritime employ-
ment * * * include{s] all physical tasks performed on the water-
front, and particularly those tasks necessary to transfer cargo
between land and water transportation’ ”). Review is warranted
because, at the very least, the Department’s interpretation is
“based on a permissible construction of the statute”; hence it is
entitled to deference and should be given effect. Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843 (1984); see, e.g., Morrison-Knudsen Constr. Co.
v. Director, Office of Workers’ Compensation Programs, 461
U.S. 624, 635 (1983) (consistent practice of those charged with
enforcement and interpretation of LHWCA entitled to defer-
ence); Zenith Radio Corp. v. United States, 437 U.S. 443, 450
(1978) (great deference due interpretation of officers or agency
administering statute); Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 381 (1969) (construction of statute by those charged
with executing it should be followed “unless there are compell-
ing indications that it is wrong”).

Further, a restrictive interpretation is also inconsistent with
the view of the Benefits Review Board. See, e.g., Wuellet v.
Scappoose Sand & Gravel Co., 18 Ben. Rev. Bd. Serv. (MB)
108, 110-111 (1986) (welder/mechanic injured while repairing
conveyor belt at barge-loading facility is covered under
LHWCA since “the repair of equipment at employer’s barge
facility is an integral part of the loading process * * * and
therefore is a maritime activity”); Verderane v. Jacksor.ville
Shipyards, Inc., 20 Ben. Rev. Bd. Serv. (MB) 62, 64 (1984)
(manager of shipyard’s Medical, Safety and Security Depart-
ment, whose duties required inspecting certain shipbuilding
equipment and assuring compliance with safety regulations, was
covered employee since he “performed an integral role in assur-
ing” shipyard workers’ safety and his duties “were important to
the overall progress of maritime construction”).

4. The Virginia Supreme Court’s interpretation of the
LHWCA’s status requirement creates a wide rift between the
state court, on the one hand, and the federal courts, the Depart-
ment of Labor, and the BRB, on the other. While normally a
single aberrational decision would not warrant this Court’s
review, we agree with petitioners that the potential impact of the
conflict here is substantial, especially in view of the vagaries of
Virginia’s venue statute (see 87-1979 Pet. 38-39; 88-127 Pet.
42-43). The decision invites forum-shopping among injured
workers, including many who reside out-of-state. Workers with
potentially strong FELA claims will opt for state court actions,
while those confronted with the choice between inadequate or
uncertain state remedies and LHWCA benefits will sue in
federal court. This result plainly frustrates Congress’s intent
that a single uniform standard of coverage apply to LHWCA
claims. Accordingly, review by this Court is warranted to
resolve this conflict.

CONCLUSION
The petitions for writs of certiorari should be granted and the
cases consolidated for oral argument.
Respectfully submitted.

CHARLES FRIED
Solicitor General

DAVID L. SHAPIRO

GEORGE R. SALEM Deputy Solicitor Generai
Solicitor of Labor CHRISTINE DESAN HUSSON
ALLEN H. FELDMAN Assistant to the Solicitor General

Associate Solicitor

CHARLES I. HADDEN
Deputy Associate Solicitor

CHRISTINE L. OWENS
Attorney
Department of Labor
JANUARY 1989

“: US. GOVERNMENT PRINTING OFFICE 1989—241-699/00050

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0234%3A04. Public record. Not legal advice.