Record and brief — Chesapeake & Ohio R. Co. v. Schwalb

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No. 87-1979-CSX

Status: GRANTED

Title: Chesapeake and Ohio Railway Company, Petitioner

Vv.

Nancy J. Schwalb and William McGlone

Docketed: Court: Supreme Court of Virginia

June 2, 1988

. Counsel for petitioner: Prince,William T.

Vide:

88-127 Counsel for respondent: Thompson,c. Gerard

See also Pennsylvania R. Co. Vv.

O'Rourke, 344 U.S. 334 (1952). Congress

has seen fit to amend and change the Act

numerous times as a result of judicial

decisions, however, it has never

excluded railroad employees from cover-

age despite a volume of case law in that

vein. In Caputo, the Court found that

Blundo, who monitored the stripping of

cargo from unloaded containers, was a

maritime employee because his job was

“an integral part of the unloading pro-

cess." Id. at 271. By finding coverage

for Blundo, who was performing essen-

tially clerical duties at a shoreside

loading facility, the Court emphasized

that the critical question is the

purpose of the work, not the type of

work. The Caputo Court also acknowl-

edged that the expansiveness of the 1972

Amendments requires a corresponding

expansive reading of the Act by the

judiciary. Id. at 268. The Court reaf-

firmed this approach to the LHWCA status

test in P.C. Pfeiffer Co. v. Ford, 444

U.S. 69 (1979). Again focusing on the

nature of a worker's general job respon-

sibilities and its relation to the

shiploading process, the Pfeiffer Court

ruled that two pier workers were mari-

time employees because they were

"engaged in intermediate steps of moving

cargo between ship and land transporta-

tion." Id. at 83. Observing that union

rules can fragment the loading process

into several discrete jobs, the Court

ruled that maritime status would not be

defeated because a worker functioned in

only a fraction of the sequence:

A worker responsible for some

portion of that [cargo moving]

activity is as much an inte-

gra Da of the process of

loading or unloading a ship as

a person who participates in

the entire process.

Id. at 82-83. The Pfeiffer Court

stressed that extending LHWCA coverage

to all workers involved in a portion of

the cargo moving process would best

effectuate the congressional goal of "a

simple, uniform standard of coverage.”

Id. at 83.

More recently, in Director,

OWCP v. Perini North River Assoc., 459

U.S. 297 (1983), the Court had an oppor-

tunity to comment on the Caputo and

Pfeiffer cases. The Perini Court clari-

fied that the 1972 amendments intended

to cover all workers previously ~overed

when injured on navigable waters. 459

U.S. at 315-16. The Court noting it

"had no occasion" to determine all the

possible activities which might be cov-

ered on the “expanded landward situs",

459 U.S. at 318, n.27., nevertheless

acknowledged that the Act was to be

“liberally construed *2/

and that the

1972 amendments intended to “extend”

coverage and protect “additional” work-

ers, 459 U.S. at 315-16 (quoting legis-

lative history).

The Court of Appeals for the

Fourth Circuit has held that an employee

whose responsibilities include maintain-

ing and repairing equipment and struc-

tures used in loading and unloading

2/ 33 U.S.C. 920(a) provides a legislative

presumption that any claim under the LHWCA is

within the provisions of the Act.

vessels is engaged in maritime employ-

ment within the terms of the LHWCA. In

Price v. Norfolk & Western Railway, 618

F.2d 1059 (4th Cir. 1980), the court

found that an employee who was injured

while painting a tower supporting the

conveyor belt system that transported

grain to the holds of nearby vessels was

a maritime employee required to seek his

remedy under the LHWCA. The Price

court's finding followed an analysis of

the general nature of the plaintiff's

job, as required under Caputo. Id. at

1060-61. - To reach the conclusion that

this worker was é& maritime employee, the

panel reasoned that:

(1) the equipment being main-

tained by the claimant

was essential to the

loading and unloading of

vessels at the port; and

(2) the maintenance and

repair of longshoring

machinery and equipment

is an essential to the

movement of maritime

cargo as the actual load-

ing anty unloading of

ships. |

Id. at 1061. In Price the Fourth Cir-

cuit expressly disagreed with the Vir-

ginia Supreme Court's pre-Caputo deci-

sion in White v. Norfolk & Western Rail-

way, supra. |

The Price court relied on its

earlier decision, Newport News Ship-

building & Dry Dock Co. .v. Graham, 573

F.2d 167 (4th Cir.), cert. denied, 439

U.S. 979 (1978), which held that a

mechanic injured while oiling shipbuild-

ing machinery had the status of a mari-

time employee. Both Price and Graham

found language persuasive from a Bene-

fits Review Board decision that stated:

Merely because a waterfront

mechanic is not directly

involved in the actual loading

or unloading of cargo does not

cemove him from the coverage

of the amended Act. The main-

tenance and repair of long-

shoring machinery and equip-

ment is essential to the move-

ment of maritime serge and,

thus, such an oyee's

duties are included in the

broad concept of maritime

employment.

Bradshaw _v. McCarthy, 3 BRBS 195, 198

(1976) (emphasis supplied), petition for

review denied, 547 F.2d 1161 (3d Cir.

1977).

In Harmon v. Baltimore & Ohio

Railroad, 741 F.2d 1398 (D.C. Cir.

1984), the Court of Appeals for the D.

C. Circuit reached the same conclusion

with regard to a railroad carpenter who

was injured while repairing a hopper

through which coal passes during the

loading process. Adopting the Pfeiffer

standard of coverage for employees

"engaged in intermediate steps of moving

cargo,” the Harmon court reasoned that,

since coal-loading equipment is essen-

tial to the movement of maritime cargo

from railcars to ships, “the repair and

maintenance of that equipment must also

be considered as an integral part in the

loading and unloading of ships.” 741

F.2d at 1403-04.?/

Although the Court has never

specifically addressed the issue of

whether such employees are covered it

has acknowledged their significance in

dicta. In Herb's Welding, Inc., v.

Gray, 470 U.S. 406 (1985) the Court

refused to extend LHWCA coverage to a

3/ The Virginia Supreme Court in Goode v.

Norfolk & Western Railway (Norfolk Circuit

Court, Nov. 13, 1986), discussed infra at note 4

and accompanying text, dealt with a factual sit-

uation almost identical to Harmon.

welder working on a fixed off-shore

drilling platform. They did not specifi-

cally reach the issue of situs but noted

that the only maritime situs connection

this worker had was the fact he may have

had to take a boat to get to and from

work. 470 U.S. at 427, n. 13. The

Court felt the platform was no different

than an island. 470 U.S. at 421-22. In

language important to this case the

Court nevertheless found that the

employee's “work had nothing to do with

the loading or unloading process, nor

{was} there any indication he was even

employed in the maintenance of equipment

used in such tasks.” 470 U.S. at 425.

Other circuits have similarly

applied the integral function test in

determining that workers who maintain or

repair equipment or structures essential

to loading vessels are maritime employ-

ees for LHWCA purposes. Illustrative

cases include Sea-Land Services, Inc. v.

Director, Office of Workers' Compensa-

tion Programs, 685 F.2d 1121, 1123 (9th

Cir. 1982) (repair and maintenance of

equipment necessary to loading ships

integral to process, thus “maritime

employment" for LHWCA); Hullinghorst

Industries, Inc. v. Carroll, 650 F.2d

750, 755 (Sth Cir. 1981) (maintenance

and repair of longshoring equipment and

facilities essential and indispensable

step in shiploading process), cert.

denied, 454 U.S. 1163. (1982); Garvey

Grain Co. v. Director, Office of Work-

ers' Compensation Programs, 639 F.2d

366, 370 (7th Cir. 1981) (repair and

general maintenance of conveyors and

other loading equipment integral part of

loading process, conferring LHWCA status

on worker performing these tasks);

Prolerized New England Co. v. Benefits

Review Board, 637 F.2d 30, 37 (lst Cir.

1980) (repair and maintenance of inte-

grated shiploading equipment qualifies

as maritime employment for LHWCA), cert.

denied, 452 U.S. 938 (1981).

In 1977, without the guidance

of Caputo and Pfeiffer, the Supreme

Court of Virginia decided that a rail-

road worker who maintained and repaired

loading equipment at the Norfolk coal

piers was “not directly involved in the

loading of coal." White v. Norfolk &

Western Railway, supra, 322 S.E.2d at

833 (emphasis in original). Relying on

the fact that plaintiff»was “not actu-

ally handling any cargo, either manually

or mechanically,” 217 Va. at 833, and

borrowing language from Weyerhaeuser Co.

v. Gilmore, 528 F.2d 957, 961 (9th Cir.)

("realistically significant relationship

to ‘traditional maritime activity'"),

cert. denied, 429 U.S. 868 (1976) and

Jacksonville Shipyards, Inc. v. Perdue,

539 F.2d 533, 539 (Sth Cir. 1976)

("directly involved"), vacated and

remanded, 433 U.S. 904 (1977), the White

court held that the plaintiff was not a

maritime employee covered by the LHWCA.

217 Va. at 833. See id. (plaintiff “at

least one step removed from a realisti-

cally significant relationship” and from

“direct involvement” in shiploading).

In the decade following White, not one

reported court opinion has acknowledged

White as persuasive authority. Both the

Ninth and Fifth Circuits, relied on by

the White court, have found workers who

repair and maintain shiploading equip-

ment within the scope of the LHWCA.

See, e.g., Sea-Land Services, Inc. and

Hullinghorst Industries, Inc., both

supra. Furthermore, the Weyerhaeuser

opinion is unsubstantial authority for

analyzing the status of workers assigned

to a commercial pier: the Weyerhaeuser

plaintiff who was denied maritime status

was a pondman injured while working on a

sawmill log pond, not a repairman main-

taining shiploading equipment beside a

deep water pier. See 528 F.2d at 961

(pondman's work not maritime employment

in traditional sense; no "realistically

significant relationship” to traditional

maritime activity involving navigation

and commerce on navigable waters). As

pointed out in Boudreaux v. American

Workover, Inc., 680 F.2d 1034, 1049 (5th

Cir. 1982), Weyerhaeuser formulated its

“significant relationship” status test

from Executive Jet Aviation, Inc. v.

City of Cleveland, 409 U.S. 249 (1972),

which addressed the question of federal

admiralty jurisdiction in claims arising

from airplane accidents over navigable

‘

waters. The holding in Executive Jet

does not speak persuasively to the

intended reach of federal jurisdiction

in the context of maritime employment

compensation.

Given the tenuous underpin-

nings of White, and the subsequent clar-

ification of the LHWCA status test in

the federal fora, the lower courts in

Virginia implied that Chey were no

longer bound by the pre-Caputo pro-

nouncement of the state's highest court.

See, e.g., Letter Opinion by Judge

Stephens in Turnista v. Chesapeake &

Ohio Railway (Newport News Circuit Court

May 21, 1984) and Letter Opinion by

Judge Waters in Goode v. Norfolk & West-

ern Railway (Norfolk Circuit Court, Nov.

13, 1986). Nevertheless the Supreme

Court of Virginia accepted review of

Schwalb and McGlone and used these cases

to reaffirm the discredited White ratio-

nale. In its March 4, 1988 opinion, the

Schwalb-McGlone court opined that Con-

gress did not intend the 1972 amendments

to “have such pervasive and preclusive

effects” as had been attributed to them

4/ 60A-75A and 44A-57A respectively. The

Goode decision was reviewed on appeal by the

Supreme Court of Virginia which, citing its rul-

ings in Schwalb and McGlone, reversed the judg-

ment and remanded for trial on the merits.

58A-59A. The Norfolk and Western Railway will

file its petition for a writ of certiorari with

respect to the Goode case next month. The

Turnista judgment was not appealed.

by, for example, the Fourth Circuit

Court of Appeals in its Price opinion.

See 12A. Rejecting again the "“"func-

tional relationship” formula that has,

since White, been the linchpin of the

LHWCA status test, the Supreme Court of

Virginia regressed to an ée illogical

demarcation of coverage (or exclusion)

based upon classification or labeling of

skills where “workers who perform

purely clerical tasks" are indistin-

guishable from workers who perform

5/ The court's passing reference to clerks is

unfortunate and unsupported by the controlling

case law. The Court has recognized perf« ‘mance

of “clerical” duties does not render LHWCA cov-

erage inapplicable. Blundo, in Caputo, was in

reality a pier clerk. See also Levins v. Bene-

fits Review Board, 724 F.2d 4 (lst Cir. 1984)

(imprope. *o assume categorically that clerks

are not en.itled to coverage.) Congress has

also specifically excluded some clerical emp) oy-

ees from coverage who are covered by state

* workmen's compensation statutes. 33 U.S.C. §

902(3) reprinted at 39A.

maintenance tasks "such as painting” (a

clear reference to Price). 16A-17A.

The court recast its status test in

terms of an "essential elements” stand-

ard, which it described as “more nearly

akin to the ‘significant relationship’

standard [it] adopted in White than the

‘overall process' construction invoked

by the defendant.” 16A. Thus clothed

in confusing semantics, the

Schwalb-McGlone court prestidigitated

pierside maintenance laborers, who manu-

ally moved coal during the loading pro-

cess, into non-covered workers who

“perform([ed) purely housekeeping and

janitorial tasks." 17A. The Supreme

Court of Virginia seems to ignore that

all forms of work, regardless of loca-

tion or employer, have types of skills

which may be universal. A ship

carpenter may have the same basic train-

ing and expertise as a residential car-

penter. A longshoreman may employ the

same physical tools as those used by a

loading dock employee. The critical

inquiry is the purpose of the work: to

build ships not houses; to move maritime

cargo not truck stock. See Hullinghorst

Industries, Inc. v. Carroll, supra, 650

F.2d at 756 ("nonmaritime” skills

applied to maritime project are

maritime).

Without apology, the Schwalb- °

McGlone court has ignored a decade of

case law and it's decision to deny

Schwalb and McGlone the status of mari-

time employees is untenable and must be

corrected.

Il. The Schwalb-McGlone decision

offends the congressional goal

of a uniform standard

The Schwalb-McGlone court, in

disdaining the federal courts’ uniform

interpretation of the LHWCA status test,

has simply ignored the congressional

mandate to apply a “simple, uniform

standard of coverage," P.C. Pfeiffer Co.

v. Ford, 444 U.S. at 83. Decisions of

the United States Supreme Court are

final and authoritative with respect to

the construction and application of fed-

eral statutes. Absent clear words to

the contrary construction of the lan-

guage in a federal statute is a federal

question. Western Air Lines v. Board of

Equalization, 480 U.S. _, 94 L.Ed.2d

112, 119 (1987). A state court is not

free to follow its own dictates or prec-

edent, in the face of contrary federal

authority on a federal question.

[Rjecognition of the role of

state courts as the _ final

36 or,

expositors of state law

implies no disregard for the

primacy of the federal judici-

ary in deciding questions of

federal law.

England v. Louisiana Medical Examiners,

375 U.S. 411, 415-16 (1964). See also

Harman v. Forssenius, 380 U.S. 528

(1965). As this Court admonished in an

earlier demonstration of independence by

the Supreme Court of Virginia:

[Tyhe vice of this position is

that, in following its own

prior decision, the court

ignored the decision of this

court to the contrary. This

lawfully it could not do, the

question, as we have shown,

being a federal question to be

determined by the application

of federal law. The determi-

nation by this court of that

question is binding upon the

state courts, and must be fol-

lowed, any state law, deci-

sion, or rule to the contrary

notwithstanding.

Chesapeake & Ohio Railway v. Martin, 283

U.S. 209, 220-221 (1931).

The mischief created by this

aberrant state court decision will not

be limited to the parties in these

actions. The judges in Virginia's trial

courts, as well as those Federal admin-

istrative boards located in Virginia,

must now immediately confront’ the

dilemma of whether to apply Caputo,

Pfeiffer and their progeny, or bow to

stare decisis and “blindly follow” the

Schwalb-McGlone decision. See Opinion

by Chief Judge Schlitz, at 28A. |

An indirect consequence of the

Schwalb-McGlone decision will be “forum

shopping" by, for example, pierside

railroad workers in other states who

seek to avoid compensation under the

LHWCA. Due to the vagaries of

Virginia's venue statue, a resident of

any state can bring an action in

Virginia against his or her employer

doing business in the state of Virginia;

the action is not vulnerable to dis-

missal or transfer even if the plaintiff

and) all witnesses reside in another

state and the accident occurred outside

Virginia. Va. Code § 8.01-265 (1950 as

amended) . If the Schwalb-McGlone

decision remains viable, there is little

doubt that Virginia courts will soon

teem with foreign FELA actions, brought

by maritime plaintiffs escaping federal

and state courts elsewhere that adhere

to the federal standard. This is hardly

the result Congress intended when it

amended the LHWCA to establish a simple,

6/ The Supreme Court of Virginia has recently

agreed to hear argument on the constitutionality

of this statute. Seaboard Systems Railroad,

Inc. v. Caldwell, Record No. 870490 (Va. Sup.

Ct.) (presently pending argument).

uniform standard of coverage. To allow

the Schwalb-McGlone decision to stand

would frustrate the spirit and purpose

of the LHWCA, create a favored class of

maritime employees, and perpetuate a

dichotomous approach to the LHWCA status

test.

CONCLUSION

: For the above reasons, peti-

tioner Chesapeake & Ohio Railway Company

respectfully submits that this petition

should be granted and that the judgments

by the Supreme Court of Virginia should

be reversed.

Respectfully submitted,

CHESAPEAKE & OHIO RAILWAY

COMPANY

By | an as

William T. Prince

John Y- Richardson, Jr.

Joan F. Martin

Williams, Worrell, Kelly & Greer, P.C.

600 Crestar Bank Building

Norfolk, Virginia 23510

CERTIFICATE OF SERVICE

‘1 hereby certify that I have

served three (3) copies of this Petition

for a Writ of Certiorari upon the

Respondent, Nancy J. Schwalb at the

office of her counsel of record, C.

Gerard Thompson, Commerce Bank .uilding,

500 Crawford Street, P. 0. Box 1158,

Portsmouth, Va. 23705, and upon the

Respondent, William McGlone, at the

office of his counsel of record, C.

Gerard Thompson, Commerce Bank Building,

500 Crawford Street, P. 0. Box 1158,

Portsmouth, Va. 23705, pursuant to the

requirements of Rules 28 and 33 of the

Rules of the Supreme Court of the United

States, by depositing same in a United

States mail box, with first class post-

age prepaid, addressed to Respondents as

set forth above, on or before June 2,

1988. —

I further certify that I am a

* member of this Court, and that all par-

ties required to be served have been

served on or before June 2, 1988.

William T. Prince

Of Counsel for

Petitioner

—Fa

APPENDIX

APPENDIX INDEX

SUBJECT

1. Opinion of Supreme Court of

Virginia, dated March 4,

1988, in cases of Schwalb

and McGlone v. Chesapeake &

Ohio Railway Company..........

2. Opinion of Judge Douglas M.

Smith of The Circuit Court

of the City of Newport News,

Virginia, dated August 8,

1984, in case of Schwalb v.

Chesapeake & Ohio Railway

COMPANY... ccccceccesessesesees

3. Opinion of Judge Lester E.

Schlitz of the Circuit Court

of Portsmouth, Virginia,

dated May 29, 1985, in case

of McGlone v. Chesapeake &

Ohio Railway Company....:.....

4. Order of the Circuit Court

of the City of Newport News,

Virginia, dated August 22,

1984, dismissing case of

Schwalb v. Chesapeake & Ohio

Railway Company......+++++ee6.

5. Order of the Circuit Court

of the City of Portsmouth,

Virginia, dated June 13,

1985, dismissing case of

McGlone v. Chesapeake & Ohio

Railway Company.......-.+++++6-.

PAGE

SUBJECT PAGE

6. Order of Supreme Court of

Virginia, dated March 4,

1988, reversing and remand-

ing the case of Schwalb v.

Chesapeake & Ohio Railway

COMPANY... 1. ccc c cece eee eeeeeneees 35A

7. Order of Supreme Court of

Virginia, dated March 4,

1988, reversing and remand-

ing the case of McGlone v.

Chesapeake and Ohio Railway

Company..... Coo eeeeeesereeeseses 37A

8. 33 U.S.C. § GO2Z(3). wc cence neccnes 39A

9. 33 U.S.C. § GOS(A) ween cccccues 42A

10. Opinion of the late Judge

Charles R. Waters, II of the

Circuit Court of the City of

Norfolk, Virginia, dated

November 13, 1986, in the

case of Goode v. Norfolk &

Western Railway Company......... 44A

ll. Order of Supreme Court of

Virginia, dated April 22,

1988, reversing and remand-

ing the case of Goode v.

Norfolk & Western Railway

ee) ee 58A

12. Opinion of Judge J. Warren

Stephens of the Circuit

Court of the City of Newport

News, Virginia, dated May

21, 1984, in the case of

Turnista v. Chesapeake &

Ohio Railway Company. .

iii

PRESENT: ALL THE JUSTICES

OPINION BY JUSTICE RICHARD H. POFF

March 4, 1988

Record No. 841743

NANCY J. SCHWALB

Vv.

THE CHESAPEAKE AND OHIO RAILWAY COMPANY

FROM THE CIRCUIT COURT OF THE

CITY OF NEWPORT NEWS

Douglas M. Smith, Judge

Record No. 850728

WILLIAM MCGLONE

Vv.

THE CHESAPEAKE AND

OHTO RAILWAY COMPANY

FROM THE CIRCUIT COURT OF THE

CITY OF PORTSMOUTH

Lester E. Schlitz, Judge

In this appeal, we review two judg-

ments entered in separate actions, each

sustaining a plea to the jurisdiction.

Claiming damages for personal injuries,

each plaintiff had invoked the Federal

Employers’ Liability Act, 45 U.S.C. §§

51-60 (1982) (FELA). In each appeal,

the sole issue is whether the plaintiff

was a statutory employee as defined in

the Longshoremen's and Harbor Workers'

Compensation Act, 33 U.S.C. §§ 901-956

(1982) (LHWCA or the Act). If so, the

parties agree that the remedy provided

by the Act is exclusive, see 33 U.S.C. §

905(a) (1982), and that we should affirm

the judgments.

The two plaintiffs are Nancy J.

Schwalb and William C. McGlone. Each

was an employee of the defendant, The

Chesapeake and Ohio Railway Company.

Although the accidents resulting in the

plaintiffs’ injuries occurred at differ-

ent times, the facts in the two cases,

insofar as relevant to the issue common

to the two appeals, are substantially

identical. Each plaintiff was employed

as a laborer to perform housekeeping and

janitorial services in the offices,

shops, bathrooms, and other places situ-

ated on the defendant's pier and adja-

cent property in Newport News. This

property is equipped with facilities

designed to transfer coal from railroad

cars to ships moored at the pier. A

"dumper", activated by ‘trunnion roll-

ers", upends railroad cars and dumps the

coal into “hoppers”. The coal falls

from the hoppers onto conveyor belts

that carry it to a “loading tower" from

which it is poured into the hold of a

ship.

Coal spilled on the trunnion roll-

ers can cause the dumpers to malfunc-

tion. Coal falling and accumulating

beneath the conveyor belts eventually

may damage the belts and interrupt the

loading process. As part of the duties

assigned by the defendant, the plain-

tiffs were required to clear away coal

spilled in these areas. Because they

were not members of a longshoremen's

union, the plaintitfs were forbidden to

load that coal onto the conveyor belts.

The plaintiff McGlone was clearing away

coal beneath a conveyor belt at the time

he was injured. The plaintiff Schwalb

was injured in a fall as she was walking

along a “catwalk” approaching the trun-

nion rollers.

;

{

;

The parties in both cases agree

that the defendant railroad is a statu-

tory employer as defined in the LHWCA,

that is, an employer “any of whose

employees are employed in maritime

employment, in whole or in part”. 33

U.S.C. § 902(4) (1982). The plaintiffs’

contention is that the trial courts

erred in ruling that they were statutory

employees as defined in the Act. The

plaintiffs rely upon our decision in

White v. N. and W. Ry. Co., 217 Va. 823,

232 S.E.2d 807, cert. denied, 434 U.S.

860 (1977). Reviewing a judgment based

on such a ruling, we applied the Act as

amended in 1972, Pub. L. No. 92-576, 86

Stat. 1251, to the facts in White.

First enacted in 1927, Pub. L. No.

69-803, 44 Stat. (part 2) 1424, the

LHWCA was the first successful

congressional response to the Supreme

Court's decision in Southern Pacific Co.

v. Jensen, 244 U:S. 205 (1917). There,

the Court had ruled that a state

worker's compensation act could not con-

stitutionally apply to a_ longshoreman

injured in an accident that had occurred

on a gangplank between a pier and a

ship. Initially, Congress sought to

authorize states to extend their work-

ers' compensation statutes seaward of

the Jensen line, but the Court held the

state statutes to be unconstitutional

delegations of congressional power.

Knickerbocker Ice Co. v. Stewart, 253

U.S. 149 (1920); Washington v. W.C.

Dawson & Co., 264 U.S. 219 (1924).

Although the federal Act filled a

workers’ compensation voic, the LHWCA,

as originally enacted, provided coverage

only when "disability or death

result{ed}) from an injury occurring upon

the navigable waters of the United

States”. 33 U.S.C. § 903(a) (1927).

Federal compensation coverage stopped at

the Jensen line; the Act did not apply

to a longshoreman injured at work on a

pier, even though engaged in traditional

longshoremen's functions. Nacirema

Operating Co. v. Johnson, 396 U.S. 212,

218-20 (1969).

The 1972 amendments to the LHWCA

moved the Jensen line landward to

include areas adjoining navigable waters

and “customarily used by an employer in

loading, unloading, repairing, or build-

ing a vessel”. 33 U.S.C. § 903(a)

(1982). Yet, Congress did not extend

federal coverage to every worker injured

in such areas, for it added an amendment

defining a covered employee as “any per-

son engaged in maritime employment.” 33

U.S.C. § 902(3) (1982). The effect of

the two amendments was to create a

two-pronged coverage test -- the situs

of the injury and the status of the

injured worker.

In White, a railroad employee filed

a claim under FELA. He had been injured

on a situs covered by the LHWCA, and

"the critical question presented

(was) whether plaintiff was a ‘person

engaged in maritime employment’ and thus

an ‘employee’ within the meaning of the

Act.” 217 Va. at 827, 232 S.E.2d at 809.

White was hired as an electrician to

maintain and repair the electrical

equipment used at a pier to dump coal

from railroad cars, to move conveyor

belts transporting the coal, and to load

L}.

the coal into ships. Although White did

not operate any of the equipment

employed in the loading process, the

railroad argued that “all of his activ-

ity was ‘functionally related' to the

loading of coal on ships", id. at 831,

232 S.E.2d at 812, and that he was,

therefore, an employee engaged in mari-

time employment and, as such, was lim-

ited to the remedy provided by the

LHWCA.

In White, the railroad had borrowed

the “functional relationship” formula

from the opinion in Sea-Land Service,

Inc. v. Director, Office of Workers’

Compensation, 540 F.2d 629, 637-38 (3d

Cir. 1976). Considering the history of

the Act and construing the congressional

intent underlying the 1972 amendments,

we rejected that formula. We adopted,

instead, the standard articulated in

Weyerhaeuser Co. v. Gilmore, 528 F.2d

957, 961 (9th Cir.), cert. denied, 429

U.S. 868 (1976)?/;:

{[Fjor an injured employee to

be eligible for federal com-

pensation under [the Act], his

own work and employment, as

distinguished from his

employer's diversified opera-

tions, including maritime,

must have a realistically sig-

nificant relationship to ‘tra-

ditional maritime activity

1/ The Supreme Court disapproved

application of a significant relation-

ship standard tu determine the status of

the worker in Director, OWCP v. Perini

North River Associates, 459 U.S. 297,

302 n.8, 318-19 (1983). The Court did

not, however, disapprove a significant

relationship standard as a concept when

applied, as in Gilmore, to post-1972

coverage landward of the Jensen line. As

noted by the majority in Herb's Welding,

Inc. v. Gray, 470 U.S. 414, 424 n.10

(1985) (quoting Perini, 459 U.S. at 299,

324 n.34) the decision in Perini "was

carefully limited to coverage of an

employee ‘injured while performing his

job upon actual navigable waters’...

[and] was, ‘of course,’ limited to work-

ers covered prior to 1972".

10A

involving navigation and com-

merce on navigable waters,’

with the further condition

that the injury producing the

disability occurred on naviga-

ble waters or adjoining areas

as defined in § 903.

Applying the Gilmore standard, we said

that “we do not believe plaintiff's

duties .. . had a realistically signif-

icant relationship to .the loading of

cargo on ships", that “plaintiff was not

a covered ‘employee’ within the meaning

of the Act", and that “the order dis-

missing plaintiff's FELA action will be

reversed". 217 Va. at 832-33, 232 S.E.2d

at 813.

In the appeals at bar, the defen-

dant railroad relies on Price v. Norfolk

& W. Ry. Co., 618 F.2d 1059 (4th Cir.

1980). There, the plaintiff in an FELA

action was a painter employed by the

defendant railroad. He sustained an

11lA

injury while painting the support towers

of a structure housing a conveyor belt

system used in loading grain into the

hold of a vessel. The Price court rea-

soned that, because "the failure to

paint would eventually lead to severe

rusting that would halt the entire

[loading] process", id. at 1062 n.4, the

plaintiff was engaged in maritime

employment and, consequently, “was an

‘employee' within the meaning of the

LHWCA which provides an exclusive rem-

edy", id. at 1062.

We cannot agree that Congress

intended the 1972 amendments to have

such pervasive and preclusive effects.

Nor do we agree with the argument

advanced by the railroad in these

appeals that the Supreme Court implic-

itly has overruled our decision in

12A

White. On brief, the defendant says

that "the U.S. Supreme Court has stated

that one is engaged in maritime employ-

ment if he is ‘engaged in the overall

process of loading and unloading ves-

sels' (emphasis supplied).” For this

proposition, the defendant cites North-

east Marine Terminal Co. v. Caputo, 432

U.S. 249 (1977). The language the

defendant quotes from that decision is

an abbreviated excerpt lifted from a

longer passage, the import of which we

construe differently.

The injuries at issue in Caputo

were sustained during the process of

unloading a_e ship. Considering the

reports of the congressional committees

that initiated the 1972 amendments, the

Court concluded that Congress intended

to cover those workers

involved in the essential

13A

;

‘

elements of unloading a vessel

~- taking cargo out of the

hold, moving it away from the

ship's side, and carrying it

immediately to a storage or

holding area ... . [{PJersons

who are on the situs but are

not engaged in the overall

process of loading and unload-.

ing vessels are not covered.

Thus, employees such as

truckdrivers, whose responsi-

bility on the waterfront is

essentially to pick up or

deliver cargo unloaded from or

destined for maritime trans-

portation are not’ covered.

Also excluded are employees

who perform purely clerical

tasks and are not engaged in

the handling of cargo.

Id. at 267 (emphasis added). As we con-

strue this language, the Court reasoned

that, although clerical employees work-

ing on a covered situs may have respon-

sibilities related to the commercial

process, unless they are "engaged in the

handling of cargo", they are not

"involved in the essential elements ‘of

{loading or] unloading a vessel” and,

14A

therefore, are not statutory employees

for purposes of the LHWCA. Id.

We recognize that the Act is reme-

dial in purpose and, as the defendant

says, that "Caputo requires an expansive

view of LHWCA". We note, however, that

the Court speaks of covered workers as

those “involved in the essential ele-

ments of unloading a vessel", id.; as.

those “directly involved in the loading

or unloading functions", id. at 271

(quoting S. Rep. 1125, 92d Cong., 2d

Sess. 13 (1972) and H.R. Rep. 1441, 92d

Cong., 2d Sess. 11 (1972)); and as those

who “spend at least some of their time

in indisputably longshoring operations",

id. at 273. Two years following Caputo,

the Court said that “workers doing tasks

traditionally performed by longshoremen

are within the purview of the 1972 Act."

15A GQ

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69,

82 (1979). And the Supreme Court,

recalling the language of Caputo, empha-

sized in its most recent analysis of the

status test that che pussees of the mar-

itime employment requirement was "to

cover those workers on the situs who are

involved in the essential elements of

loading and unloading". Herb's Welding,

Inc. v. Gray, 470 U.S. 414, 423 (1985)

(emphasis added).

We believe the "essential elements”

standard is more nearly akin to the

“significant relationship" standard we

adopted in White than the “overall pro-

cess" construction invoked by the defen-

dant. In this respect, we see no logi-

cal difference between workers “who per-

form purely clerical tasks", Caputo, 432

U.S. at 267, and workers who perform

16A

purely maintenance tasks, such as paint-

ing, or workers who, like the plaintiffs

in these appeals, perform purely house-

keeping and janitorial tasks.

Applying the rule in White, we hold

that the plaintiffs were 1 ot statutory

employees as defined in the LHWCA. We

will reverse the judgments dismissing

the plaintiffs' FELA actions and remand

the cases for trials on the merits. ?/

2/ In the Schwalb appeal, the defen-

dant argues that the plaintiff “is

estopped from denying LHWCA coverage"

because she accepted compensation paid

under the _ Act. According to the

defendant's brief, “[{s)he expresses no

agreement to off-set compensation pay-

ments previously received against any

recovery under FELA and, therefore, dou-

ble recovery remains a possibility.”

But, in @ memorandum of law filed in the

trial court, we find that the plaintiff

acknowledged that "any recovery. by

Footnote continued on next page.

17A

‘

Record No. 841743 - Reversed

and remanded.

Record No. 850728 - Reversed

and remanded.

Footnote continued from previous page.

plaintiff on her FELA claim will be

reduced by the amount of LHWCA benefits

she may have already received.” A rail-

road worker who makes such a concession

does not seek a double recovery and is

not precluded from pursuing a remedy

under FELA. Freeman v. Norfolk and

Western Ry. Co., 596 F.2d 1205, 1208

(4th Cir. 1979); accord Caldwell v.

Ogden Sea Transport, Inc., 618 F.2d

1037, 1049 (4th Cir. 1980).

L8A

SEVENTH JUDICIAL CIRCUIT OF VIRGINIA

Newport News, Virginia 23607

August 8, 1984

Ms. Frances S.P. Li

Suite 565

608 2nd Avenue

South Minneapolis, Minnesota 55402

Mr. William W. Nexsen

Stackhouse, Rowe & Smith

P. O. Box 3570

Norfolk, Virginia 23514

Mr. Richard Wright West

West, Stein, West & Smith

P. O. Box 257

Newport News, Virginia 23607

Re: Nancy J. Schwalb v. The

Chesapeake and Ohio Railway

Company At Law No.8827

Dear Counsel:

You will recall that on June

6, 1984, the Court heard argument on a

special plea to jurisdiction in the

above captioned cause. This special

plea was filed by the defendant C&O, in

which they contend that the plaintiff's

sole remedy in this cause is under LHWCA

19A

and consequently this court lacks juris-

diction on the motion for judgment.

The Court heard evidence of

witnesses, stipulations by counsel, has

read the memorandums of law and cases

cited therein and am rendering my deci-

sion by this letter.

The plaintiff and defendant

both agree that. to be covered under

LHWCA an injured employee must meet both

a situs and a status test, both sides

agree that the situs test has been met.

This leaves as the only question

involved whether or not the plaintiff

employee is engaged in maritime employ-

ment and the Court holds that the plain-

tiff Schwalb is so engaged, as her

duties were essential to the loading and

unloading of coal by conveyor belt to

the ships moored at the docks. It is

20A

uncontradicted that if the spilled coal

was not removed that it could have

haulted the process of loading the coal

aboard the vessels. With the liberal

interpretations expressed in decisions

by the United States Supreme Court this

Court has no difficulty in determining

that the plaintiff's remedy is under the

LHWCA. Therefore, the plea to the

jurisdiction is sustained and I am

requesting Mr. West to draw the appro-

priate order, noting plaintiff's excep-

tion and objection and having the order

endorsed by opposing counsel and return-

ing to the Court for entry.

Very truly yours,

Douglas M. Smith

Judge

21A

THIRD JUDICIAL CIRCUIT

Circuit Court of the City of Portsmouth

May 29, 1985

Richard Wright West, Esquire

P.O. Box 257

Newport News, Virginia 23607

Russell N. Brahm, III, Esquire

P.O. Box 1138

Portsmouth, Virginia 23705-1138

Re: William McGlone v. Chesapeake and

Ohio Railway Co. L84-327

Gentlemen:

Thank you for your excellent

and most exhaustive memoranda. I have

reviewed the pleadings, the evidence and

the argument of counsel, and I have read

the memoranda and all of the cases

cited.

William McGlone, plaintiff,

was injured at Newport News, Virginia,

on February 1, 1983, and filed his

22A

Motion for Judgment against the

Chesapeake and Ohio Railway Company,

defendant, on May 31, 1983, under the

Federal Employer's Liability Act (FELA),

45 U.S.C. 51, et. seq. Defendant filed

a special plea to the jurisdiction on

June 24, 1983, on the ground that

plaintiff's sole and exclusive remedy

upon the matters alleged in the Motion

for Judgment is under the Longshoremen's

and Harbor Workers' Compensation Act

(LHWCA), 33 U.S.C. 905(a).

A hearing on the special plea

was heard by this Court on March 29,

1985, evidence taken and a transcript

prepared. It appears from the evidence

that plaintiff and employee of the

Chesapeake and Ohio Railway Company on

the date of the accident was working on

the pier as a laborer cleani..g ip coal

23A

4 . enw e Se eee eS ed ’

which had fallen from a cunveyor belt

which was being used to load coal onto a

ship at the pier. The hopper and con-

veyor belt is an extension of the pier.

If coal is not removed in the area where

the plaintiff was cleaning up, the coal

would eventually interfere with the

loading operation and bring it to a

halt. This work was frequently done by

the plaintiff. Plaintiff was injured by

the conveyor belt while engaged in this

work. The sole action involved here is

whether the plaintiff at the time of his

injury was working in a maritime capac-

ity as defined by the LHWCA.

An injured employee must meet

both a “situs” and a "status" test in

order to be covered under LHWCA. There

seems to be no question here that the

injured [sic] occurred in a covered

24A

situs but we must determine whether

plaintiff occupied a status covered

under LHWCA. Nogueira v. New York,

N.H., and H.R. Company. 281 U.S. 128,

(1930). |

The Court must resolve a con-

flict in the case law between a decision

of the Supreme Court of Virginia, White

v. Norfolk & Western Railway Co., 217

Va. 823 (1977), cert. denied, 434 U.S.

860 (1977) and Price v. Norfolk & West-

ern Railway Company, 618 F2d 105 (1080)

[sic], decided by the Fourth Circuit

Court of Appeals. In White the court

stated at page 832:

"Plaintiff was not actually

handling any cargo either man-

ually or mechanically, as was

the case in the decisions

principally relied on by N &

Ww. Moreover, plaintiff was

not manipulating (except to

test) any of the controlls of

the electrical mechanism,

which furnished the power for

25A

this automated loading pro-

cess. Rather, he was only

maintaining the electrical

device on the shore and

attached to the pier, work

which is not the traditional

work of a ship's service

employee. Plaintiff was at

least one. step removed from a

realistically significant

relationship and from a direct

involvement with the loading

of vessels. The mere fact

that some of the plaintiff's

cumulative injury was sus-

tained out over the Elizabeth

River while he worked inside

the electrial rooms of the

Pier 6 ship loaders, does not

convert his status from that

of a railroad electrician to

that of a maritime worker."

It can thus be seen that the

Virginia Supreme Court held that to

qualify as an employee under LHWCA the

plaintiff must have been directly

involved in the loading of coal. Under

this ruling plaintiff could not have

been held to be an employee under LHWCA.

26A

Price decided three years

after White holds to the contrary.

The Fourth Circuit held that a

railway employee who was injured while

painting towers used in the loading of

ships was an employee under LHWCA. The

court held that merely because the

employee was not directly involved in

the actual loading of ships, this fact

did not remove him from coverage under

LHWCA because the maintenance of the

towers was essential to the movement of

maritime cargo and thus the employee was

included in the broad concept of mari-

time employment.

This view has been upheld in

many Federal court decisions. See:

Newport News Shipbuilding and Drydock

Company v. Graham, 573 F2d 167 (4th Cir-

cuit), cert. denied, 439 U.S. 979, 99

27A

S.Ct. 563 (1978); Northeast Marine Ter-

minal Company v. Caputo, 432 U.S. 249,

97 S.Ct. 2348 (1977).

It will thus be seen that the

Fourth Circuit has adopted a broad con-

cept of maritime employment that mainte-

nance of maritime cargo loading equip-

ment is essential to the loading of

cargo and is, therefore, included in the

meaning of a person engaged in maritime

employment under LHWCA.

White stands alone in contrast

to the federal decisions which were

decided after the decision in White.

Should this court blindly fol-

low White because it is a State court

decision, under the principle of stare

decises? To do so would be to interpret

a Federal law contrary to all of the

decisions of the Federal courts which

28A

have declined to follow White and have

disagreed with its results. It is the

Court's belief that this conflict

between the Supreme Court of Virginia

and the Fourth Circuit Court of Appeals

must be resolved in favor of the latter

decisions of the federal courts and this

Court reluctantly and respectfully

declines to follow White since it feels

the decision in Price is now control-

ling.

The Court is of the opinion

that the plaintiff in this case, unde:

the facts presented, was engaged in

activity which made him an employee

under the meaning of LHWCA, and that he

is precluded from maintaining a FELA

action in this case.

Defendant's special plea to

the jurisdiction of this Court is

29A

sustained, and the plaintiff's Motion

for Judgment will be dismissed from the

docket.

Counsel for the defendant will

prepare and circulate a sketch order in

accordance with this letter and for pre-

sentment to the Court for entry.

Sincerely yours,

Lester E. Schlitz

Chief Judge

30A

VIRGINIA: IN THE CIRCUIT COURT

FOR THE CITY OF NEWPORT NEWS

NANCY J. SCHWALB,

Plaintiff,

vs. | Law No. 8827-S

THE CHESAPEAKE AND OHIO RAILWAY

COMPANY, A CORPORATION,

Defendant.

ORDER

On June 6, 1984 came the par-

ties and their attorneys, and the Court

heard evidence and the argument of coun-

sel upon the defendant's Special Plea To

Jurisdiction. And having further con-

sidered the memoranda of the parties and

having etebatie considered the same, the

defendant's Special Plea to Jurisdiction

is SUSTAINED for the reasons more fully

31A

set forth in the Court's letter opinion ,

of August 8, 1984.

Accordingly, this action is

DISMISSED with prejudice to the plain-

tiff.

DATE :

ENTER: 8-22-84

/s/ D.M. Smith

Judge

I ask for this:

/s/Richard W. West

Counsel for Deferdant

Seen and exception noted:

/s/William W. Nexsen

Counsel for Plaintiff

32A

VIRGINIA: IN THE CIRCUIT COURT

FOR THE CITY OF PORTSMOUTH

ON THE 13TH DAY OF

JUNE, 1985.

WILLIAM C. McGLONE,

Plaintiff,

Vv. LAW NO.: L-83-327

THE CHESAPEAKE AND OHIO

RAILWAY COMPANY,

Defendant.

ORDER

On March 29, 1985 came the

parties and their respective attorneys,

and the Court heard evidence and the

argument of counsel upon the defendant's

Special Plea to Jurisdiction. And having

further considered the Transcript of the

hearing conducted on March 29, 1985, the

memoranda of the parties, and having

maturely considered the same, the

33A

defendant's Special Plea to Jurisdiction

is SUSTAINED for the reasons more fully

set forth in the Court's letter opinion

of May 29, 1985.

Accordingly, this action is

DISMISSED with prejudice to the plain-

tiff. It is further ORDERED that the

Transcipt of the evidentiary hearing be

made part of the Record in this case

pursuant to Rule 5:9 of the Rules of

Court.

DATE:

ENTER: 6-13-85

/s/ W.H.O.

Judge

I ask for this:

/s/Richard W. West

Counsel for Defendan

Seen and exception noted:

/s/Russell N. Brahm lili

Counsel for Plaintiff

34A

Filed March 4, 1988

SUPREME COURT OF VIRGINIA

Record No. 841743

Circuit Court No. L-8827-S

Nancy J. Schwalb, Appellant,

against

The Chesapeake and

Ohio Railway

Company, Appellee.

Upon an appeal from a judgment

rendered by the Circuit Court

of the City of Newport News on

the 22nd day of August, 1984.

For reasons stated in writing

and filed with the record, the Court is

of opinion that the judgment appealed

from is erroneous. Accordingly, the

judgment is reversed and annulled, and

the case is remanded to the said circuit

court for trial on the merits.

35A

This order shall be certified

to the said circuit court.

A Copy,

Teste:

Clerk

36A

Filed March 4, 1988

SUPREME COURT OF VIRGINIA

Record No. 850728

Circuit Court No. L-83-327

William McGlone, Appellant,

against

The Chesapeake and

Ohio Railway

Company, Appellee.

Upon an appeal from a judgment

rendered by the Circuit Court

of the City of Portsmouth on

the 13th day of June, 1985.

For reasons stated in writing

and filed with the record, the Court is

of opinion that the judgment appealed

from is erroneous. Accordingly, the

judgment is reversed and annulled, and

the case is remanded to the said circuit

cout for trial on the merits.

37A

This order shall be certified

to the said circuit court.

A copy,

Teste:

Clerk

33 U.S.C. § 902. Definitions

When used in this chapter--

(3) The term “employee” means ariy

person engaged in maritime employment,

including any longshoreman or other per-

son engaged in longshoring operations,

and any harbor-worker including a ship

repairman, shipbuilder, and ship-

breaker, but such term does not include

(A) individuals employed exclu-

sively to perform office clerical,

secretarial, security, or data pro-

cessing work;

(B) individuals employed by a

club, camp, recreational operation,

restaurant, museum, or retail out-

let;

marina and who are not engaged in

construction, replacement, or

expansion of such marina (except

for routine maintenance) ;

(D) individuals who (i) are

employed by suppliers, transport-

ers, Or vendors, (ii) are temporar-

ily doing business on the premises

of an employer described in para-

graph (4), and (iii) are not

engaged in work normally performed

by employees of that employer under

this chapter;

(E) aquaculture workers;

(F) individuals employed to

build, repair, or dismantle any

40A

recreational vessel under

sixty-five feet in length;

(G) a master or member of a

crew of any vessel; or

(H) any person engaged by a

master to load or unload or repair

any small vessel under eighteen

tons net;

if individuals described in clauses (A)

through (F) are subject to coverage

under a State workers’ compensation law.

41A

33 U.S.C. § 905. Exclusiveness of

liabiiity

(a) Employer liability; failure of

employer to secure payment of

compensation

The liability of an employer

prescribed in section 904 of this title

shall be exclusive and in place of all

other liability of such employer to the

employee, his legal representative, hus-

band or wife, parents, dependents, next

of kin, and anyone otherwise entitled to

recover damages from such employer at

law or in admiralty on account of such

injury or death, except that if an

employer fails to secure payment of com-

pensation as required by this chapter,

an injured employee, or his legal repre-

sentative in case death results from the

injury, may elect to claim compensation

under the chapter, or to maintain an

42A

action at law or in admiralty for dam-

ages on account of such injury or death.

In such action the defendant may not

plead as a defense that the injury was

caused by the negligence of a fellow

servant, or that the employee assumed

the risk of his employment, or that the

injury was due to the contributory neg-

_ ligence of the employee. For puxfeses of

this subsection, a contractor shall be

deemed the employer of a eubcontrector 's

employees only if the subcontractor

fails to secure the payment of compensa-

tion as required by section 904 of this

title.

FOURTH JUDICIAL CIRCUIT OF VIRGINIA

CIRCUIT COURT OF THE CITY OF NORFOLK

November 13, 1986

Eddie W. Wilson, Esquire

2200 Colonial Avenue, Suite 12-B

P. O. Box 11168

Norfolk, Virginia 23517

John Y. Richardson, Jr., Esquire

Williams, Worrell, Kelly & Greer, P.C.

600 United Virginia Bank Building

P. O. Box 3416

Norfolk, Virginia 23514-3416

Re: Robert T. Goode, Jr. vs

Norfolk and Western Railway Co.

. At Law No. L-86-335

Gentlemen:

Thank you for the help that you

have given the court. I have studied

all of the material supplied, including

the opinions cited in your excellent

briefs.

If this case were one of first

impression, I would be tempted to rule

that Congress, by enacting the

Longshoremen's and Harbor Workers’ Com-

pensation Act (L.H.W.C.A), did not

intend to strip a railroader of any of

his benefits under the Federal

Employer's Liablility Act (F.E.L.A.)

under any circumstances so long as he

was working for the railroad at the time

of injury, a narrow, unintellectual

approach which makes good sense.

The duty of this court, however, is

not to make law but to interpret and

follow the law as set forth by courts of

higher dignity. In following that duty,

I feel that I am directed by the exist-

ing law to rule that, under the particu-

lar facts of this case, the motion for

judgment must be dismissed for reason

that exclusive jurisdiction lies within

the ambit of the L.H.W.C.A.

45A

Railroad cars filled with coal come

cross country in both interstate and

intrastate commerce and come to rest in

what is called the barney yard located

near pier 6 at the Lambert's Point ter-

minal in Norfolk, Virginia. After the

coal has come to rest in the barney

yard, the process of loading the coal

into vessels begins. The loaded cars

are moved from the barney yard through a

thawing shed, and are then pushed up a

raised track by small locomotives called

pushers onto the dumper located near the

piers. As these loaded cars are pushed

on to the dwaper, their progress is

slowed or stopped by equipment known as

a retarder. The cars revolve, dumping

the coal onto conveyor belts which

deliver the dumped coal directly into

the holds of waiting vessels docked at

46A

the piers. The empty cars are pushed to

the apex of the raised track and then,

through the force of gravity, are

returned to a holding yard from where

they will again be dispatched to coal

fields located in various parts of the

country.

The plaintiff was a machinist who

was injured while repairing the retarder

on the dumper located near pier 6. The

dumper and retarder on which the plain-

tiff was working are located 500 to 550

feet from the water. Retarders are

located throughout the raili.cad system;

however, the sole purpose of this

retarder was to stop the loaded cars on

the dumper to facilitate the transporta-

tion of coal from shore to vessel by

dumping the coal on conveyor belts which

feed the coal into the belly of docked

47A

vessels at pier 6. The entire loading

operation at pier 6 must cease when the

retarder is inoperative or is being

repaired, and the loading operation had

in fact ceased at the time of the injury

to the plaintiff.

Machinists may be assigned to what

is known as the Motive Power Department

which has the function of maintaining

and operating the coal dumping facility

of the railroad. Machinists may be

assigned to different locations such as

the 38th Street car shop or the round-

house, which may be miles away from the

water, or they may be assigned to

Lambert's Point. The location is deter-

mined by seniority, and a machinist

working at the pier at Lambert's Point

may be forced to work at another loca-

tion Lecause of the electing of a more

48A

senior machinist to work at the pier.

At the time of the accident, the plain-

tiff had been assigned for some time to

work at Lambert's Point. While assigned

to Lambert's Point, machinists spend the

overwhelming portion of their working

time maintaining and repairing machines

and equipment essential to the coal

dumping operation. Machinists do not,

for example, regularly repair cars for

that is the job of the trainmen. The

great majority of the working time of a

machinist while assigned to Lambert's

Point is spent on the maintenance and

repair of machinery which facilitates

the dumping operation after the cars

have left the barney yard. The machin-

ists are required to pay into the rail-

road retirement plan and are subject to

the Railway Labor Act.

49A

Under the facts of this case, the

railroad is an employer within the mean-

ing of the L.H.W.C.A., Noqueira v. New

York, N.H. & H.R. Co., 281 U.S. 128,

132, 44 L.Ed. 754, 50 S.Ct. 303 (1930),

and the plaintiff is an employee within

the meaning of the L.H.W.C.A., Northeast

Marine Terminal Co. v. Caputo, 432 U.S.

249, 53 L.Ed. 2d 320, 97 §.Ct. 2348

(1977); P.C. Pfeiffer Co. v. Ford, 444

U.S. 69, 62 L.Ed. 2d 255, 100 S.Ct. 328

(1979), and he cannot walk in and out of

coverage because, I believe, that the

overwhelming portion of his work is

essential to the loading and unloading

operation.

The Supreme Court in Herb's Welding

v. Gray, U.S. , 84 L.Ed. 2d 406

(1985), while holding that a welder

working on a fixed offshore oil-drilling

50A

platform was not engaged in maritime

emp loyment within the meaning of

L.H.W.C.A., has stated:

But Congress did not seek to

cover all those who breathe

salt air. Its purpose was to

cover those workers on the

situs who are involved in the

essential elements of loading

and unloading. . (Emphasis

added).

We have never read ‘maritime

employment’ to extend so far

beyond those actually involved

in moving cargo tween ship

and land transportation.

(Emphasis a ).

On the facts of this case, I hold

that the plaintiff was involved in the

essential elements of loading '= and

unloading and that he was actually

involved in moving cargo between ship

and land transportation. After all, the

entire loading operation ceased during

the repair of the retarder on which the

plaintiff was working when injured. The

51A

location of the retarder was on the

dumper, and the sole purpose of this

particular retarder was to stop

coal-loaded cars so that the coa! could

be dumped onto the belts feeding the

vessel. It must be remembered that

plaintiff's supervisors testified that

99 percent of the work of a machinist

assigned to Lambert's Point was the

maintenance and repair of machines and

equipment directly and solely related to

the loading and unloading operation.

Even the most biased witnesses could not

seriously testify that less than 50 per-

cent of the work was not so related,

while the machinist was assigned to

Lambert's Point.

The plaintiff places a great deal

of emphasis on White v. N & W. Ry. Co.,

217 Va. 832 (1977), decided in the same

52A

year as Conti v. N. & W. Ry. Co., 566

F.2d 890 (4th Cir.).

It is my belief that, under the

facts of this case, the plaintiff did

have “a realistically significant rela-

tionship to the loading of cargo on

ships” and that he was cirectly involved

in the process of loading coal on the

vessels within the meaning of the White

test. Furthermore, this case does

involve a federal question, the federal

authorities are therefore the more per-

suasive, and to the extent that White

differs from significant federal deci-

sions, the White court, in my opinion

must yield.

As counsel well know, there have

been a number of significant decisions

subsequent to White, one of the leading

decisions being Price v. Norfolk &

53A

Western Ry. Co., 618 F.2d 1059 (4th Cir.

1980). In my opinion, the Price court

did set forth the proper test in deter-

mining whether there is exclusive cover-

age under the L.H.W.C.A., that test

being whether the plaintiff's job was an

essential element in the loading and

unloading of the vessels. I hold that

in this case the plaintiff's job was an

essential element, although in light of

the later ruling in Herb's Welding,

supra, I would not hold that’ the

painter's job in the Price case was an

essential element.

I believe that Newport News Ship-

building & Dry Dock v. Graham, 573 F.2d

167 (4th Cir.), cert. den., 439 U.S.

979, 58 L.Ed. 2d 649, 99 S.Ct. 563

(1978), fortifies my opinion in this

case, and I do not think that this

54A

opinion is in substantial conflict with

Conti v. N. & W. Ry. Co., 566 F.2d 890

(4th Cir. 1977), although I do agree

with the D.C. Circuit Court that even

before Herb's Welding, supra, the Fourth

Circuit had moved away from a test of

balancing traditional railroad’ tasks

against traditional maritime’ tasks.

Harmon v. Baltimore & Ohio R.R., 741

F.2d 1398 (D.C. Cir 1984).

I am cognizant of my colleague's

decision in Evans v. WN. & W. Ry. Co.

(Norfolk Circuit Court 1985), but like-

wise do not feel that we are in con-

flict. After a close reading of his

Gecision, I believe that, under the

facts of this case, Judge Clarkson would

have reluctantly reached the same deci-

sion which I have reluctantly reached.

55A

With regard to the situs test, I

hold that the most important factor is

the nature of the work rather than the

distance from the water and that the

test has been met. Graham, supra;

Prolerized New England Co. v. Miller,

691 F.2d 45 (lst Cir. 1982); Prolerized

New England Co. v. Ben. Rev. Bd., 637

F.2d 30 (lst Cir. 1980), cert. den. 452

U.S. 938, 101 S.Ct. 3080, 69 L.Ed. 2d

952 (1981); Sea-Land Serv. v. Director,

etc., 685 F.2d 1121 (9th Cir. 1982);

Garvey Grain Co. v. Director, etc., 639

F.2d 366 (7th Cir. 1981).

I commend both counsel for their

thorough preparation for the hearing and

their excellent briefs.

Mr. Richardson may prepare the

order for Mr. Wilson's endorsement.

56A

Please have the order forwarded to me

prior to November 19, 1986, if possible.

Very truly yours,

Charles R. Waters, II

Judge

57A

April 22, 1988

SUPREME COURT OF VIRGINIA

Record No. 870252

Circuit Court No. L86-335/L2341-86

Robert T. Goode, Jr., Appellant,

against

Norfolk & Western Railway

Company, Appellee.

Upon an appeal from a judgment

rendered by the Circuit Court

of the City of Norfolk on the

17th day of December, 1986.

Upon consideration of the rec-

ord and briefs, and on the basis of

Schwalb v. C & O Railway Co., 235 Va.

’ S.E.2d (1988), the Court

is of opinion that the judgment appealed

from is erroneous. Accordingly, the

judgment is reversed and annulled, and

the case is remanded to the said circuit

court for trial on the merits.

58A .

This order shall be certified

to the said circuit court.

A copy,

Teste:

David B. Beach, Clerk

By: /s/ Cynthia L. McCoy

Deputy Clerk

59A

SEVENTH JUDICIAL CIRCUIT

Newport News, Virginia

May 21, 1984

Mr. Michael L. Weiner

DeParcq, Perl, Hunegs,

Rudquist & Koenig, P.C.

608 Building, Room 565

608 Second Avenue South

Minneapolis, Minnesota 55402

Mr. William M. Nexsen

Stackhouse, Rowe & Smith

1400 Sovran Center

Post Office Box 3570

Norfolk, Virginia 23514

Mr. Richard Wright West

West, Stein, West & Smith

Post Office Box 257

United Virginia Bank Building

2501 Washington Avenue

Newport News, Virginia 23607

Re: Daniel C. Turnista v.

The Chesapeake and Ohio

Railroad Company, a

corporation, Law No. 8690-WS

Gentlemen:

The court has reviewed the plead-

ings and argument, the evidence and the

excellent memoranda.

60A

Daniel C. Turnista (plaintiff) was

injured at Newport News, Virginia on

April 19, 1982 and filed his Motion for

Judgment against The Chesapeake and Ohio

Railroad Company (defendant) on August

25, 1983, under the Federal Employer's

Liability Act (FELA), 45 U.S.C. 5l, et

seq.. Defendant filed its Special Plea

to Jurisdiction (special plea) on Sep-

tember 15, 1983, asserting that

plaintiff's soie and exclusive remedy

against it is under the Longshoremen's

and Harbor Workers' Compensation Act

(LHWCA), 33. —sdU. S.C. 905(a). If

defendant's contention is valid, then

relief under LHWCA is plaintiff's exclu-

sive remedy and the FELA action must be

dismissed.

61A

On March 28, 1984 at the time of

the hearing on the special plea, the

parties stipulated that:

(1)

(2)

(3)

The

defendant is an “employer” as

defined by 33 U.S.C. 902(4) of

LHWCA at the time of

plaintiff's accident;

that plaintiff was then and

there employed by defendant;

and

that the injuries of which

plaintiff complains occurred

"upon the navigable waters of

the United States” as defined

by U.S.C. §903(a) of LHWCA.

sole issue is whether’ the

plaintiff at the time of his injuries

was a person engaged in maritime employ-

ment as defined by 33 U.S.C. §902(3) of

LHWCA.

The facts are not in contention.

The evidence disclosed that plaintiff, a

machinist, was injured in a fall onto a

barge while burning shackles loose with

62A

an acetylene torch as a part of the work

required to replace the hood of the off-

shore coal loading tower on the south

side of Pier 14. As a machinist in the

mechanical department of defendant,

plaintiff spent 50% or more of his work-

ing time between the coal loading dumper

and the end of the piers, and, otherwise

worked in a shop located between the

dumper and Pier 14, primarily performing

repair and maintenance on coal loading

equipment.

The evidence further disclosed that

in proceedings pending before U.S.

Department of Labor, Office of Workers’

Compensation Programs, defendant had

paid plaintiff under LHWCA (as of time

of hearing), compensation payments

aggregating in excess of $29,500.00,

and, that plaintiff (though disputing

63A

defendant's computation of weekly wage

and length ci disability) had not chal-

lenged coverage under said Act for inju-

ries received on April 19, 1982.

Resolution of this issue comes down

to whether the court is required to fol-

low a decision of the Virginia Supreme

Court rendered in 1977 or one of the

United States Court of Appeals, Fourth

Circuit rendered in 1980.

In a unanimous opinion of the

United States Supreme Court in Northeast

Marine Terminal Co. v. Caputo, 432 U.S.

249, 268, 97 L. Ed. 2d 320, 335 (argued

April 18, 1977; decided June 17, 1977),

Justice Marshall stated:

"***The language of the 1972

Amendments is broad and sug-

gests that we should take an

expansive view of the extended

coverage. Indeed, such a con-

struction is appropriate for

this remedial legislation.

The Act ‘must be liberally

64A

construed in conformance with

its purpose, and in a way

which avoids harsh and incon-

gruous results.' Voris vv.

Eikel, 346 US 328, 333, 98 L

Ed 5, 74 S. Ct. 88 (1953).***"

The Virginia Supreme Court decision

in White v. Norfolk and Western Railway

Company, 217 Va. 823, 232 S.E. 2d 801

(1977), cert. denied 434 U.S. 860 (1977)

was rendered on March 4, 1977 and held

that White was not a covered "employee"

within the meaning of the Act, saying at

page 832:

"Applying the section 2(3)

language defining ‘employee’

in the light of what we per-

ceive to have been Congress'

purpose when the 1972 Amend-

ments were adopted, we do not

believe plaintiff's duties, in

the electrical rooms were the

injury allegedly occurred, had

a realistically significant

relationship to- the (833)

loading of cargo on ships.

Stated differently, when

plaintiff was injured he was

not directly involved in the

loading of coal. See

Jacksonville Shipyards, Inc.

65A

v. Perdue, supra, 539 F.2d at

539.

"Plaintiff was not actually

handling any cargo, either

manually or mechanically, as

was the case in the decisions

principally relied on by Né&w.

Moreover, plaintiff was not

manipulating (except to est)

any of the contrels of the

electrical mechanism, which

furnished the power for this

automated loading process.

Rather, he was only maintain-

ing the electrical devices on

the shore and attached to the

pier, work which is not the

traditional work of a ship's

service employee. Plaintiff

was at least one step removed

from a realistically signifi-

cant relationship and from a

direct involvement with the

loading of vessels. The mere

fact some of plaintiff's cumu-

lative injury was sustained

out over the Elizabeth River,

while he worked inside the

electrical rooms of the Pier 6

shiploaders, does not convert

his status from that of a

railroad electrician to that

of a maritime worker.

Thus, the Virginia Supreme Court (in

opinion rendered by five justices), in

66A

effect, marrowly held that to be an

“employee”, the plaintiff must have been

directly involved in the loading of the

coal (emphasis supplied).

In Price v. Norfolk and Western

Railway Company, 618 F.2d 105 (1980),

the Fourth Circuit held that a railroad

employee injured while painting support

towers for the gallery used for convey-

ing grain (loading and unloading ships

and barges and not for storage) as a

part of routine maintenance for which

Norfolk and Western was responsible was

"an employee” within the meaning of

LHWCA (33 U.S.C. §902(3). In concluding

(page 1062) that "***The Gallery

involved here is just as essential to

the actual loading and unloading of

ships as the machine involved in Graham

was to their building***", the opinion

67A

review applicable decisions’ since

Northeast Marine Terminal, at page 1061:

"We feel that our deci-

sion in Newport News Ship-

building & Drydock Co. v.

Graham, 573 F.2d 167 (4th

Cir.), cert. denied, 439 U.S.

979, 99 S.Ct. 563, 58 L.Ed.2d

649 (1978), is controlling in

this case and requires that we

reverse the district court's

holding that Price was not an

employee within the meaning of

the Act and therefore was

entitled to recover under the

FELA. In Graham, a claimant

Jones was seeking compensation

under the LHWCA for injuries

sustained when he bumped

against a machine which he was

Oiling. The machine was “sed

in building ships. He was

rated as a mechanic and

belonged tw the maintenance

department of the employer. In

holding that Jones was enti-

tled to compensation under the

LHWCA, we stated: ‘Because

Jone's maintenance was essen-

tial to keeping the shipyard's

machinery in working order for

the construction of ships, we

conclude that he was a ship-

builder within the meaning of

the Act.' Id. at 170.

"In so holding, we cited

with approval a Benefits

68A

Review Board decision that is

directly on point. In

Bradshaw _v. McCarthy, 3 BRBS

195 (1976), petition for

review denied, 547 F.2d 1161

(3d Cir. 1977), a mechanic

injured his back in a terminal

while removing a tire from a

forklift he was’ repairing.

The forklift was used _ to

unload ships and to _ load

freight cars, tractors, and

trailers. In holding that the

claimant was an employee as

defined in the Act, the Board

stated:

Merely because a

waterfront mechanic is

not directly involved

in the actual loading

or unloading of cargo

does not remove him

from the coverage of

the amended Act. The

maintenance and repair

of longshoring machin-

ery equipment is

essential to the move-

ment of maritime cargo

and, thus, such an

employee's duties are

included in the broad

concept of maritime

employment.

Id. at 198. We can discern no

significant distinction between

the repair of machinery essen-

tial to the movement of

69A

maritime cargo and the painting

of a structure essential to the

loading and unloading of the

same. Nor can we discern any

significant distinction between

Oiling a machine used in build-

ing ships, as was the claimant

in Graham, and painting a

structure used in loading and

unloading ships. There is no

doubt that employees employed

in ‘taking cargo out of the

hold, moving it away from the

ship's side, and carrying it

immediately to a -storage or

holding area’ are "employe(es)”

within the meaning of _ the

amended _ statute. Northeast

Marine Terminal Co. v. Caputo,

432 U.S. 249, 267, 97 S.Ct.

2348, 2359, 53 L.Ed.2d 320

(1977). The holding in Graham

that a maintainer of a

shipbuilder's machinery is cov-

ered requires a holding here

that a maintainer of a

longshoreman's machinery be

covered.

"We find no merit in the

argument of plaintiff that the

fact that.szthe plaintiff was

(1062) nedely painting’ the

structure housing the conveyor

mechanism that transports the

grain, rather than the mecha-

nism itself, is sufficient to

distinguish this case from

Graham and Bradshaw. The Gal-

lery involved here is just as

70A

essential to the actual loading

and unloading of ships as the

machine involved in Graham was

to their building. We should

add at this point that we also

find persuasive the direction

of Northeast Marine Terminal

that we take an ‘expansive

view' of this ‘remedial legis-

lation’. 432 U.S. at 268, 97

S.Ct. at 2359.

It is apparent that the Fourth Cir-

cuit has adopted the expansive view that

“maintenance and repair of longshoring

machinery and equipment is essential to

the movement of maritine cargo and,

thus, such an employee's duties are

included in the broad concept of mari-

time employment." Since Northeast

Marine Terminal, the federal courts have

consistently applied the "expansive

view" in interpreting the meaning of a

"person engaged in maritime employment”

as that term is used in 33 U.S.C.

71A

§ 902(3) of LHWCA, and, it appears no

court has followed White.

Is White nevertheless binding upon

this court under the principal of stare

decises? Neither Graham (decided March

13, 1978) nor Price (decided April 9,

1980) followed White, the latter

expressly declining so to do. saying

((sic) at page 1062, "***and with

respect simply disagree with White."

There is no suggestion in any of the

memoranda that the precise question is

now before the United States Supreme

Court.

With Northeast Marine Terminal and

its progeny Graham and Price binding on

the Federal district courts, for this

court to follow White would further

frustrate lack of uniformity vetween

federal snd state court decisions

72A

governing the interpretation of the

meaning of a federal statute (particu-

larly affecting the Hampton Roads area

where ship construction and repair,

shipping and longshoring activities are

common place), a result the court con-

cludes is not intended by White in view

of the subsequent decisions in Graham

and Price. The court respectfully

declines to follow White, concluding

that Price is controlling.

The court is of the opinion that at

the time of his injury, plaintiff was

engaged in maritime employment, and,

thus was an “employee” within the mean-

ing of 33 U.S.C. § 902(3) of LHWCA and

that his exclusive remedy against defen-

dant is under LHWCA.

Accordingly, the court concludes

that plaintiff is precluded from

73A

maintaining subject FELA action and that

defendant's special plea is sustained

and the action of plaintiff is dismissed

from the docket with prejudice to plain-

tiff.

Having so concluded, it is not nec-

essary to reach the issue of what, if

any, effect plaintiff's acceptance of

compensation payments from defendant

under LHWCA has on his right to maintain

the FELA action.

Counsel for defendant is required

to prepare an appropriate sketch for

order sustaining the special plea for

the reasons set forth in the foregoing

letter opinion and dismissing the action

from the docket with prejudice to plain-

tiff, circulate same to counsel for

plaintiff for endorsement, and, to the

court for consideration and entry.

74A

Very truly yours,

/s/ J. Warren Stephens

Judge

75A

OPPOSITION

BRIEF

Docket No. 87-1979

In the Supreme Court of the United States

October Term, 1987

CHESAPEAKE AND OHIO RAILWAY COMPANY,

Petitioner,

NANCY SCHWALB AND WILLIAM McGLONE,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

C. Gerard Thompson

MOODY, STROPLE AND KLOEPPEL, LTD.

Commerce Bank Building, Suite 300

500 Crawford Street

Portsmouth, Virginia 23704

(804) 393-4093

Counsel for Respondents

QUESTIONS PRESENTED

Is an unskilled railroad laborer

who sweeps coal from coal piers

and does not perform traditional

longshoring activities a “maritime

employee” under the Longshoremen’s

and Harbor Workers’ Compensation Act?

Will the extension of the

Longshoremen’s and Harbor Workers’

Compensation Act to the respondents

promote the legislative concerns

of Congress that prompted the 1972

and 1984 amendments to the

Longshoremen’s and Harbor Workers’

Compensation Act?

TABLE OF CONTENTS

Questions Presented

Table of Authorities

Jurisdiction

/ Statutes Involved

Statement of Facts

Argument

I. RESPONDENTS ARE RAILROAD

WORKERS, WHO DO NOT

PERFORM TRADITIONAL

LONGSHORING ACTIVITIES,

AND ARE NOT MARITIME

EMPLOYEES.

Il. THE JUDGMENT OF THE

VIRGINIA SUPREME COURT

IMPLEMENTS THE

CONGRESSIONAL PURPOSES

IN THE 1972 AMENDMENTS.

Conclusion

Certificate of Service

Director, Office of Worker’s

Compensation Programs, United

States Department of Labor v.

Perini North River Associates

459 U.S. 297 (1983) 16-17,21

Herb’s Welding, Inc. v. Gray

470 U.S. 414 (1985) 7,17-19,21

Nacir

v. Johnson

396 U.S. 212 (1969) 8,9,17

Northeast Marine Terminal

Company, Inc. v. Caputo

432 U.S. 249 (1977) 10-12,21

>. £. Peesteee fe.. ine.

Ford

Vv.

444 U.S. 69 (1979) 5,13-14,21

Sun Ship, Inc. v. Pennsylvania

447 U.S. 715 (1980) 14-16,21

Wilkerson v. McCarthy

366 U.S. 53 (1949) 4

iii

e ¢& ¢€& G&G G&

nounenA FAM

C-' o ee. ee

» § 1257(3)

. § 902(3)

. § 903(a)

. § 905(a)

. § 51 et seq.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

No. 87-1979

CHESAPEAKE AND OHIO RAILWAY COMPANY,

Petitioner,

Vv.

NANCY J. SCHWALB,

Respondent.

CHESAPEAKE AND OHIG RAILWAY COMPANY,

Petitioner

Vv.

WILLIAM McGLONE,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

JURISDICTION

- The jurisdiction of this Court

involved under 28 U.S.C. § 1257(3).

ATUT

These cases involve the application

of the Longshoremen’s and Harbor Workers’

Compensation Act, 33 U.S.C. §§ 902(3)

and 905(a) and the Federal Employers’

Liability Act, 45 U.S.C. § 51 et sea.

STATEMENT OF FACTS

On January 11, 1983, Nancy Schwalb

was injured on Pier 14 at Newport News,

Virginia. She was walking to the truncheon

rollers when she fell and struck her

head. A fellow railroad laborer, Ben

Gathers, found her on the walkway between

1:30 a.m. and 2:00 a.m. on January 12,

1983. Schwalb was bleeding from the

nose and ear and has suffered seizures

since the accident. She has not returned

to work.

William C. McG one, a laborer with

the Chesapeake and Ohio Railway Company

since 1970, injured his right arm during

cleanup efforts on the defendant’s property

in Newport News, Virginia. His employment

duties included the cleaning of bathrooms,

bunkhouses, cabooses, engines and piers.

On February 1, 1983, Mr. McGlone’

supervisor, Robert Layne, directed him

to clean the area below main conveyor

belt number three. Though Mr. McGlone

requested the belt be shut down, Robert

Layne rejected his request and instructed

him to clean the debris from the concrete

pier below the moving conveyor belt.

Mr. McGlone complied with this order

and proceeded to clean the debris. The

defective belt caught his right arm and

nearly severed it. He sustained a sixty

percent (60%) loss of the use of the

right arm and is permanently disabled

from railroad employment.

ARGUMENT

1. RESPONDENTS ARE RAILROAD WORKERS,

WHO DO NOT PERFORM TRADITIONAL

LONGSHORING ACTIVITIES, AND ARE

NOT MARITIME EMPLOYEES.

Respondents brought separate actions

in Newport News and Portsmouth, Virginia

to recover for on-the-job personal

injuries. As other railroad employees

have for 80 years, the respondents invoked

the Federal Employers’ Liability Act

(FELA). The FELA has been specially

enacted for railroad workers “to put on

the railroad industry some of the cost

for legs, eyes, arms and lives which it

consumes in its operations”. Wilkerson

v. McCarthy, 366 U.S. 53 at 68 (1949).

Although the petitioner paid

respondent McGlone $2,000.00 for a 1982

accident, which occurred in the same

area of Newport News, Virginia, pursuant

to the FELA, it now wishes to prohibit

the respondents for asserting their

traditional remedies under the FELA.

The petitioner interposes the LHWCA as

a bar to respondents’ FELA claim and

demand for jury trials.

The applicability of the LHWCA

depends upon the nature of the respondents’

activities. P. C. Pfeiffer Co., Inc.

v. Ford, 444 U.S. 69 at 82 (1979). The

respondents did not load any coal aboard

ships or the conveyor belts. They, in

fact, were specifically prohibited from

loading but were required to sweep spilled

coal into piles. Their other duties

included cleaning up bathrooms, bunkhouses,

cabooses, engines and other railroad

equipment.

In 1972, Congress amended the LHWCA

and enumerated a two-pronged test.

The test included a situs test and a

status test. Section 903(a) of the Act

sets forth the situs test where a

longshoreman’s claim must occur. It

states:

Except as otherwise provided

in this section, compensation

shall be payable under this

Act in respect of disability

or death of an employee, but

only if the disability or

death results from an injury

occurring upon the navigable

waters of the United States

(including any adjoining pier,

wharf, dry dock, terminal,

building way, marine railway,

or other adjoining area

customarily used by an employer

in loading, unloading, repairing,

dismantling, or building a

vessel). 33 U.S.C. § 903(a).

Section 902 of the Act defines the

Status test, that is, the status an

employee must occupy before the LHWCA

applies. It states:

The term ‘employee’ means

any person engaged in maritime

employment, including any

longshoreman or any other

person engaged in longshoring

operations, and any harborworker

including a ship repairman,

aarpner eee and shipbreaker,

, 33 U.S.C. § 902(3).

Before the LHWCA may be applied to

the respondents, they must sustain

injuries upon the navigable waters of

the United States and be engaged in

maritime employment. The LHWCA does not

define the term “maritime employment”,

nor does compliance with the situs test

support or demonstrate compliance with

the status requirement. See, Herb’s

Welding, Inc. v. Gray, 470 U.S. 414

(1985).

The respondents’ duties never required

their presence aboard ship, nor did

they require their assistance in the

unloading or loading of cargo. Rather,

they swept or collected debris that

fell from the conveyor belts. They did

not operate any machinery in the loading

or unloading process, nor did they operate

any tool or equipment used in the loading

or unloading process. Their duties

—

possessed no significant relationship

to the loading or unloading of cargo

and do not involve traditional maritime

activities.- Therefore, the respondents

do not meet the status test and are not

“maritime employees”.

Il. THE JUDGMENT OF THE VIRGINIA SUPREME

COURT IMPLEMENTS THE CONGRESSIONAL

PURPOSES IN THE 1972 AMENDMENTS.

Before 1972, the LHWCA provided

coverage to employees injured upon the

navigable waters of the United States.

This Court in Nacirema Operating Company

vy. Johnson, 396 U.S. 212 (1969) limited

federal coverage to employees injured

in or upon the navigable waters of the

United States. In essence, a one-part

or single status requirement determined

the availability of federal compensation.

Longshoremen received federal benefits

only if their injuries occurred upon

the navigable waterways.

In WNacirema, this Court denied

LHWCA compensation to three workers

who were attaching cargo from railroad

cars located on piers to ships’ cranes.

When the cargo swung back, it knocked

them onto the pier or against the side

of a railroad car. Although one man

died and the other two were injured,

they did not receive compensation under

the LHWCA. If they had fallen into the

river or navigable waterway, the injured

men would have received benefits under

LHWCA.

In response to the inequitable and

fluctuating compensation scheme, Congress

amended the LHWCA in 1972. Congress

replaced the previous status requirement

with a two-pronged test. The prongs

included: (1) a situs requirement and

(2) a status requirement. The situs

language greatly expanded the scope or

geographical limits of the LHWCA, but

the status language imposed a new

limitation upon injured workers. Under

the status test, a person must be engaged

in “maritime employment” to receive

federal compensation benefits.

In the years following the 1972

amendments to the LHWCA, this Court has

had at least five opportunities to review

the amendments. In Northeast Marine

Terminal Company, Inc. v. Caputo, 432

U.S. 249 (1977), this Court extended

coverage to Ralph Caputo, a member of

the regular longshoring gang, and Carmelo

Blundo, a checker in Brooklyn, New York.

Caputo worked as a terminal laborer and

normally loaded or unloaded containers,

barges and trucks. He was injured while

rolling a dolly loaded with cheese into

a consignee’s truck.

Blundo, as a checker, was responsible

for checking and recording cargo as it

was loaded onto or unloaded from vessels,

barges or containers. He slipped on

some ice on the pier while marking

containerized cargo.

Under pre-1972 law, both employees

would not have received compensation

under the LHWCA, but, under the 1972

amendments, they did. The Court stated:

The 1972 amendments were

the first significant effort

to reform the 1927 Act and

the judicial gloss that had

been attached to it. The

main concern of the 1972

amendments was not with the

scope of covera~2 but with

accommodating the desires of

three interested groups: (1)

Ship owners who were discontented

with the decisions allowing

many maritime workers to use

the doctrine of ‘seaworthiness’

to recover full damages from

ship owners regardless of

fault; (2) Employers of the

longshoremen who, under another

judicially created doctrine,

could be required to indemnify

shipowners and thereby lose

the benefit of the intended

exclusivity of the compensation

remedy; and (3) Workers who

wanted to improve the benefit

schedule deemed inadequate by

all parties. Id. at 26€j.

Congress sought to meet hese desires

through the 1972 amendments. Congress

broadened the definition of “navigable

waters of the Unites States” to include

“any adjoining pier, wharf, dry dock,

terminal, building way, marine railway

or other adjoining area customarily

used by an employer in loading, unloading,

repairing or building a vessel”. 33

U.S.C. § 903(a).

Congress simultaneously amended

the definition of the person covered by

the Act and added the requirement that

an injured werker be “engaged in maritime

employment” which it defined to include

“any longshoreman or any other person

engaged in longshoring operations, and

any harbor worker including a_ ship

repairman, shipbuilder and shipbreaker,

." 33 U.S.C. § 902(3). Though

Caputo and Blundo were not upon the

navigable waterways when injured, they

clearly fit the expanded situs definition

and were engaged in the handling of

cargo. Consequently, they were entitled

to compensation.

In P, C. Pfeiffer Company, Inc. v.

Ford, 444 U.S. 69 (1979), this Court

affirmed longshoremen’s benefits for

Diverson Ford, a warehouseman, and William

Bryant, a cotton header. Although neither

was injured upon the navigable waterway

as defined before the 1972 amendments,

both were “engaged in the type of duties

that longshoremen perform in transferring

goods between ship and tand

transportation.” Id. at 81. This Court

concluded the explicit use of the terms

“longshoremen” and “other persons engaged

in longshoring operations” demonstrated

that workers doing tasks traditionally

performed by longshoremen were within

the purview of the 1972 Act. Id. at 82.

This Court in Pfeiffer acknowledged

one of the reasons Congress expanded

coverage in 1972. The advent and

proliferation of containerization had

shifted much of the loading and unloading

tasks from aboard ship to land. To

deny access to the LHWCA because a worker

fortuitously sustained injuries on piers

or other land based structures rather

than water severely and unfairly limited

compensation for traditional longshoremen’s

work.

In Sun Ship, Inc. v. Pennsylvania,

447 U.S. 715 (1980), this Court allowed

employees to apply for and recover from

their state workmen’ s compensation scheme

and the federal workmen’s compensation

scheme. The 1972 amendments to the

LHWCA deleted a previous requirement

in which recovery was dependent upon

the unavailability of compensation by

state law. The deletion of this

requirement evidenced the concurrent

nature and jurisdiction of federal and

state compensation laws.

The Court conciuded “if state remedial

schemes are more generous than federal

law, concurrent jurisdiction could result

in more favorable awards for worker’s

injur‘es than under an exclusively federal)

compensation system”. i. 68 786.

Congress was not concerned with the

disparity between adequate federal benefits

and superior state benefits. Rather,

the quid pro quo to the employers for

the landward extension of the LHWCA by

the 1972 amendments was simply the

apolition of the longshoremen’s

unseaworthiness remedies. This Court

noted with some interest that’ the

Congressional Reports dwell upon the

rejection of the unseaworthiness action

and do not mention the pre-emption of state

remedies. Id. at 24 and 25. Similarly,

Congress did not mention pre-emption of

the FELA or the application of the LHWCA

to railroad workers.

Department of tabor v. Perini North

River Associates, 459 U.S. 297 (1983),

the Supreme Court allowed Raymond

Churchill, an employee of Perini, to

receive benefits under the LHWCA.

Churchill was injured while working a

barge in navigable waters. This Gourt

again reviewed the historical events

preceding the 1972 amendments. It

specifically stated Congress responded

to its decision in Nacirema in which

the Court held the LHWCA did not extend

to longshoremen whose injuries occurred

on a pier attached to land.

The Congressional Record during

the debate on the 1972 amendments was

also reviewed, and the Court enumerated

the purposes of the 1972 amendments.

They were: (1) To raise the amount the

amount of compensation available under

the LHWCA, (2) To extend coverage of

the Act to include certain contiguous

land areas, (3) To eliminate the

longshoremen’s strict liability

seaworthiness remedy against ship owners,

(4) To eliminate shipowner’s claims for

indemnification from stevedores, and

(5) To promulgate certain administrative

reforms. Perini at 313.

In Herb’s Welding, Inc. vy. Gray,

470 U.S. 414 (1985), this Court reversed

the United States Court of Appeals for

the Fifth Circuit and denied LHWCA coverage

to Robert Gray, a welder. Gray worked

for Herb’s Welding, Inc., off the Louisiana

coast. While welding a gas flow line

on a fixed platform located in Louisiana

waters, he burnt through the bottom of

a line and an explosion occurred. He

injured his knees and sought benefits

under the LHWCA for wages, disability

and medical expenses. The Fifth Circuit

granted compensation and concluded that

offshore drilling is maritime commerce

and anyone performing such tasks was

employed in maritime employment’ for

LHWCA purposes.

In rejecting the Fifth Circuit’s

expansive view of maritime employment,

this Court stated “Congress did not

seek to cover all those who breathe salt

gi Id. at 423. Rather, Congress’

purpose was to cover those workers engaged

in traditional maritime employment.

"The amendments were not meant ‘to cover

employees who are not engaged in loading,

unloading, repairing, or building a

vessel, just because they are injured ~

in an area adjoining navigable waters

used for such activity.’°” Id. at 424.

This Court noted that Gray was not

involved in loading or unloading cargo.

His duties contained nothing inherently

maritime and could be performed on land.

This Court emphasized it has “never

read ‘maritime employment’ to extend so

far beyond those actually involved in

moving cargo between ship and tand

transportation”. ld. at 424.

The Virginia Supreme Court, like

the United States Supreme Court, has

required an employee to meet both tests,

i.e. situs and status, before the LHWCA

applies. Similarly, the Virginia Supreme

Court examines these requirements

individually and has refused to extend

the LHWCA to “all those who breathe salt

air”. Rather, the Virginia Supreme Court

denied the railroad’s efforts to invoke

the LHWCA because respondents Schwalb

and McGlone did not perform traditional

maritime activities. Their sole function

was a janitorial one in which they cleaned

debris from the piers, buildings, cabooses,

and railroad cars.

CONCLUSION

Respondents are employees of the

Chesapeake and Ohio Railway Company.

As railroad employees, they performed

janitorial services in the cleaning of

bathrooms, bunkhouses, cabooses, engines

and piers. They did not and have never

performed traditional longshoremen’s or

maritime duties; nor have they participated

Omen.

a -

in loading or unloading cargo. To extend

LHWCA coverage to the respondents would

deny them a superior remedy under the

FELA, would allow the railroad to settle

small claims under the FELA but minimize

their losses on larger claims through

the application of the LHWCA, would

defeat the specific purposes of the

1972 amendments and would violate the

principles and findings in Caputo,

Pfeiffer, Sun Ship, Perini, and Herb’s

Welding, Inc. Respondent respectfully

requests that the petition for certiorari

be denied and that the cases be remanded

for trial upon their merits.

Respectfully submitted,

NANCY SCHWALB and

WILLIAM McGLONE

me Ypad tips)

Of Counsel

)

C. Gerard Thompson

MOODY, STROPLE AND KLOEPPEL, LTD.

Commerce Bank Building, Suite 300

500 Crawford Street

Portsmouth, VA 23705-1138

CERTIFICATE OF SERVICE

I hereby certify that I have served

three copies of this Brief in Opposition

to Petition for a Writ of Certiorari

upon the petitioner, Chesapeake and

Ohio Railway Company, at the office of

its counsel of record, William T. Prince,

Williams, Worrell, Kelly & Greer, P.C.,

600 Crestar Baril. Building, Norfolk, VA

23510, pursuant to the requirement of

Rules 28 and 33 of the Rules of the

Supreme Court of the United States, by

depositing the same in a United States

mailbox, with first class postage, pre-

paid, on or before July 2, 1988.

I further certify that I am a member

of this Court and that all parties required

to be served have been served on or

before July 2, 1988.

| : i ; f PIuaaec! Theps J

C. Gerard Thompson

Counsel for Respondents

as a 0 ety) er

APP

PP X

SUBJECT

oOo

® Settlement and Final

Release of All Claims

dated August 6, 1982,

by and between the

Chesapeake and Ohio

Railway Company and

William C. McGlone for

an accident at or near

Newport News, Virginia

on or about July 9,

1982 1A

THE CHESAPEAKE AND OHIO RAILWAY COMPANY

SETTLEMENT AND FINAL RELEASE

OF ALL CLAIMS

Read Carefully Before Signing

The undersigned acknowledges the

receipt of Two Thousand & 00/100 Dollars

($2,000) from THE CHESAPEAKE & OHIO

RAILWAY COMPANY in full settlem*nt and

satisfaction of all claims, demands,

and causes of action hereinafter mentioned,

and in consideration of said payment hereby

RELEASES and forever discharges’ THE

CHESAPEAKE & OHIO RAILWAY COMPANY, its

agents, servants and employees’ from

all claims, demands, and causes of action

which the undersigned have or might

have against them or any of them arising

out of or in any way connected with

personal injuries received at or near

Newport News, Virginia, on or about

July 9, 4982. This settlement is made

upon my representation that I have not

received any supplemental sickness benefit

payments because of this accident and

if I do receive any hereafter because

of this accident, I agree to reimburse

said Railroad Company the amount so

received.

Both the undersigned and the Company

do now acknowledge that the injuries

which the undersigned sustained may be

permanent and progressive; that recovery

may be uncertain and indefinite and

that injuries, damages .and losses may

not now be fully known and may be more

numerous and more serious than now

believed. In making this SETTLEMENT

AND FINAL RELEASE the undersigned relies

wholly upon his or her own judgment and

has not been influenced to any extent

whatever by any representation or statement

of the claims agent, doctors, or other

representatives of the Company. The

» ee

undersigned admits that no promise or

agreement has been made to him or her,

and that this RELEASE contains the entire

agreement between the parties hereto

and that al! the terms of this RELEASE

are important parts of this contract

and are binding upon all parties.

The word “injuries”, where used in

this SETTLEMENT AND FINAL RELEASE, include

all injuries which are unknown as wel]

as injuries which are known and includes

all consequences of such injuries which

may hereafter develop as well as

consequences now developed. This

settlement is intended to be final, the

undersigned taking his or her chances

that the injuries may prove to be more

serious than now believed and the other

parties taking their chances that the

injuries may prove to be less serious

than now believed.

)

It is further understood and agreed

that this is a settlement by compromise

of a disputed claim and that the payment

made is not to be construed as an admission

of liability, all liability being expressly

denied.

release

/s/_I have read and understand this relase.

W.C. Mc

SIGNED and SEALED at N.N. VA., on

this 6 day of AUG, 1982

/s/ William C. McGlone

(SEAL)

Witnesses W. B. Swain

Sign

Here F. L. Royal)

AMICUS CURIAE

BRIEF

po a

OCTOBER TERM, 1988

CHESAPEAKE AND OHIO RAILWAY COMPANY, PETITIONER

NANCY J. SCHWALB AND WILLIAM MCGLONE

NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER

Vv.

ROBERT T. GOODE, JR.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

, CHARLES FRIED

Solicitor General

DAVID 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 of Labor

_ ALLEN H. FELDMAN

Associate Solicitor

CHARLES I. HADDEN

Deputy Associate Solicitor

CHRISTINE L. OWENS

Altorney

Department of Labor

Washington, D.C. 20210

QUESTION PRESENTED

Whether “employee[s]” engaged in “maritime employment

under Section 2(3) of the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. 902(3), include not only those

workers who actually load or unload cargo but also all workers

on a covered site who perform work that is an essential element

or integral part of the process of loading or unloading.

(1)

TABLE OF CONTENTS

Page

a ot Week dbase ececees l

ace we eweN es Uebededecees 6

a ee es oaceveseces 18

TABLE OF AUTHORITIES

Cases:

Caldwell vy. Ogden Sea Transport, Inc., 618 F.2d 1037 (4th

ed oe oe tes uw en eee ses est lo

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) .... 2... ....6....5. 17

Conti v. Norfolk & W. Ry., 566 F.2d 890 (4th Cir.

NN oe ar a eecenceses 16

Director, Office of Workers’ Compensation Programs vy.

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)... .. 4

Harmon v. Baltimore & O.R.R., 741 F.2d 1398 (D.C.

i eek ees ce eeehcdbseibveens 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. vy. Director, Office of

Workers’ Compensation Programs, 461 U.S. 624

RE en ee eee 17

NLRB vy. International Longshoremen’s Ass'n, 447 U.S.

TE ile ei ee Badd ass deeuaegaseedets 10

Newport News Shipbuilding & Drydock Co. \. Graham,

$73 F.2d 167 (4th Cir.), cert. demied, 439 U.S. 979

ee es os eae eudeeeect 13

Northeast Marine Terminal Co. v. Caputo, 432 U.S.

ee ol ee daeaeueneene 5, 6, 8,

9, 10, 11, 12, 17

P.C. Pfeiffer Co. \. Ford, 444 U.S. 69 (1979)... 000... 6, 7, 8,

9, 10, 12, 13

Pennsylvania RR. v. O'Rourke, 344 U.S. 334 (1953) |. 16

Price v. Norfolk & W. Ry., 618 F.2d 1059 (4th Cir.

e's 6G Se et Re ry eee ts ~~. ._ =

Cases — Continued: Page

Prolerized New England Co. v. Benefits Review Bd., 637

F.2d 30 (| t Cir. 1980), cert. denied, 452 U.S. 938

Si ncpenstess suauvidesonesibbaiibkiaunases 14

Prolerized New England Co. v. Miller, 691 F.2d 45 (ist

RE Ee ee ee ae ee ere 14

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

i cahvwkiese< Re? Re pt ey Pye re ee 17

Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350

Se TT nd cc east banheneeiasatecekeusseet S

Sea-Land Services, tnc. v. Director, Offi ice of Workers’

Compensation Programs, 685 F.2d 1121 (9h Cir.

Dt” <Ciutisekedecdauddedsceebecesundubeness’ec 14, 15

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) ....... .

Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980) ..... 7

Verderane v. Jacksonville Shipyards, Inc., 20 Ben. Rev.

ee eh GE « ccc dcecescctdcedeceeseces 17

Vogelsang v. Western Maryland Ry., 670 F.2d 1347

a ee ns ae nens 16

Pere @, He, Dee eles MED oc cc ccecccccccsecces y

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 & Grave! Co., 18 Ben. Rev.

eh EE ns ns pancebediesredehou 17

Zenith Radio Corp. v. United States, 437 U.S. 443

Dt -iicheceeeusekesbnansanuadaeeleacabeeeute 17

Statutes:

Federal Employers’ Liability Act, 45 U.S.C. 51 ef seq. ... 3

Longshore and Harbor Workers’ Compensation Act, 33

I dn od ldwagetusdieewtens ent 3

i ods vc a cetnsdseastees 4, 8,9, 17

§ 2(3), 33 U.S.C. 902(3) (Supp. IV 1986) ...... .... 4,11

a danced ees s

a RE Re ee ee lens 16

Longshore and Harbor Workers’ Compensation Act

Amendments of 1984, Pub. L. No. 98-426, § 27(d)(1),

Ss HE obs kbka ob UsaautaweneesesVaeuatenses 3

Miscellaneous: Page

H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972) ....__.. 8,9, 10

H.R. Rep. No. 570, 98th Cong., Ist Sess. (1983) ........ 1!

S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) ........... 8, 9-10

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

In the Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1979

CHESAPEAKE AND OHIO RAILWAY COMPANY, PETITIONER

Vv.

NANCY J. SCHWALB AND WILLIAM MCGLONE

No. 88-127

NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER

ROBERT T. GOODE, JR.

ON PETITIONS | OR WRITS OF CERTIORARI

TO 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. C&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’ treight ‘trains

trans; ort coal mined inland for loading onto ships docked at

the terminals’ piers. Upon arrival, the coal-laden railway cars re-

(1)

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

the 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 rollers,” 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

Schwalb and McGlone easily could have replaced the trash coal

on the conveyor belts, applicable union agreements prohibited

them from doing 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

machinist for N&W who worked in the Motive Power Depart-

' The contents of the appendices to the petitions in each case are essentially

identical, except for their order. Therefore, for ease of reference, we reler only

to the Appendix in No. 87-1979, cited as “Pet. App.”

ment at Lambert’s Point.? That department’s function was to

maintain and operate the coal facility, with machinists in the

Department devoting the majority of their time to maintaining

and repairing loading equipment and machines. Pet. App.

47A-49A, 52A.

Schwalb sustained a serious head injury on January 11, 1983,

when she fell while walking to clear trash coal from the trunnion

rollers (87-1979 Pet. 10-11; 87-1979 Br. in Opp. 2). McGlone

was injured on February 1, 1983, as he was attempting to clear

away trash coal beneath a moving conveyor belt (87-1979 Pet.

10; 87-1979 Br. in Opp. 3). Goode was injured on February 11,

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 seq., 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, contending that the respondents’ exclusive remedy

was under the Longshore and Harbor Workers’ Compensation

Act (LHWCA), 33 U.S.C. 901 et seq. N&W moved to dismiss

on the same basis. Pet. App. 19A, 23A, 45A.

2. The courts for the Third Judicial Circuit (McGlone),

Fourth Judicial Circuit (Goode), and Seventh Judicial Circuit

(Schwalb) of Virginia each decided that the LHWCA applied to

respondents’ claims, sustained petitioners’ jurisdictional

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 (Pet. App.

20A, 24A-25A, 56A), and thus focused principally on whether

N&W employs machinists throughout its rail system, assigning them to

different sites and diffefent jobs on the basis of seniority (Pet. App. 48A-49A;

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

* The Longshoremen's and Harbor Workers’ Compensation Act was re

titled by the Longshore and Harbor Workers’ Compensation Act Amend

ments Of 1984, Pub. L. 98-426, § 27(d)(1), 9% Stat. 1654

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 appéals 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

broader, encompassing all warkers 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 McGilone 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 McGlone 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 S3A-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

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 SIA, citing Herb’s Welding, Inc. v. Gray, 470 U.S. 41.,

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 Fourth 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 concluded 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 Wie standard to the extent that the standards

dittered, nevertheless held that the activities of Goode qualified him for

coverage under the While test as well (Pet. App. S3A).

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-S59A).°

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), 2ach time finding the employees covered because “they

w. ve ‘engaged in longshoring operations,’ and thus fit one of the

tite empleyment.’” 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 i could

sustain the lower court's holding, the fact that Goode’s dufies 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 longshoring operations and

who. without the 1972 Amendments, would be covered for only part of their

activity”) and Director, Office of Workers’ Compensation Programs \. Perini

North River Assocs., 489 U.S. 297, 311-312 (1983) (workers injured on

na igable waters before 1972 covered under LHWCA without regard to duties

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 handling 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 LHWCA’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 U.S. 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 FE! A 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. Fo onnsylvania, 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.). P

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), tu 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 against

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-

pg 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 #x-

press or implicit warranty of workmanlike performance. See, e.g., Ryan

Stevedoring Co. v. Pan Atlantic §.S. Corp., 350 U.S. 124 (1956).

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.” Jd. 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 watezs; 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.

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 NLFEB vy. 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).

case involving respondent Goode, who was injured on February 11, 1985

(88-127 Br. in Opp. 7).

here,'' but excludes them on/y if they are eligible for state

workers’ compensation programs. 33 U.S.C. 902(3) (Supp. IV

1986).'?, 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, infer 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. [V 1986). Even these carefully limited

exclusions “are intended to be narrowly construed.” H.R. Rep. No. 570, 98th

Cong., Ist Sess. 5 (1983).

'? In the words of the House Report, workers not protected by state pro-

grams would “remain under the coverage of the Longshove 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).

coverage to “amphibious workers” (432 U.S. at 256-265, 273),

the Coyrt 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”

supported 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 ii found coverage for two workers, neither of whom load-

ed or unloaded material directly to or from boats.'? The Court

'* 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

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 “{ljand-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-

trom 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.

'* 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. ». Graham, $73 F.2d 167

(4th Cur.), cert. demed, 439 U.S. 979 (1978).

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 and 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

'* See, e.g., Harmon vy. 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’ ”); Hu/linghorst 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 366, 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 LHW'CA’s ambit because “(t}he gallery, and its maintenance, are essen-

ual to the loading and unloading of all vessels”).

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 umon 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 /d. 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

Gilmore is misplaced. The Ninth Circuit has made it clear that it reads Wever-

haeuser’s “realistically significant relationship” language to mean that “repair

and maintenance of equipment necessary to loading and unloading ships ts in-

tegral to the process and is therefore ‘maritime employment’ covered by the

Act.” Sea-Land Services, Inc., 685 F.2d at 1123. Thus, ithe Ninth Circuit ap-

plies its Weyerhaeuser sormulation in harmony with authority in the other

tederal circuits.

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 unionization 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 claims. '*

3. A restrictive interpretation of landward coverage under

the LHWCA conflicts with the Department of Labor’s inter-

'’? 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 coa! 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. Ceden Sea Transport, Inc., 618 F.2d 1037, 1050 (4th

Cir. 1980) (Conti cited only for “integral part” language); Price, supra (draw-

ing no Conii-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 Conzi)). 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. vy. O'Rourke, 344

U.S. 334 (1953); Harmon, supra; Vogelsang, supra; Price, supra, and in such

@ircumstances LHWCA coverage is exclusive under 33 U.S.C. 905.

pretation of the Section 2(3) status requirement, which it has

consistently applied since 1972 in administering the LHWCA

workers’ compensation programm. 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, 46)

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

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