CHESAPEAKE AND OHIO RAILWAY COMPANY, PETITIONER V. NANCY J. SCHWALB
AND WILLIAM MCGLONE

   NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER V. ROBERT T. GOODE,
JR.

   No. 87-1979, 88-127

   In the Supreme Court of the United States

   October Term, 1988

   On Writs of Certiorari to the Supreme Court of Virginia

   Brief for the United States as Amicus Curiae Supporting Petitioners

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      "Employees" engaged in "maritime employment" include all
      workers on a covered situs who perform work that is an essential
      element or integral part of the process of loading or unloading
          A. The broad language and the legislative history of
             the LHWCA's status provision require an expansive
             view of the Act's coverage
          B. The state court's standard conflicts with the principles
             of coverage enunciated by this Court and followed by
             the lower federal courts and the Benefits Review
             Board
          C. The Department of Labor's view on the scope of LHWCA
             coverage is entitled to deference
   Conclusion

                          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) (1982 & Supp. IV 1986), 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.

                     INTEREST OF THE UNITED STATES

   The Secretary of Labor, through the Department of Labor's Office of
Workers' Compensation Programs (OWCP), administers the Longshore and
Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901 et seq.  /1/
The Director of the OWCP is a party to and may participate in any
proceedings under the Act.  These cases require the Court to determine
the scope of the employee status requirement for coverage set forth in
Section 2(3) of the LHWCA, 33 U.S.C. 902(3) (1982 & Supp. IV 1986).
As indicated in our brief filed at the Court's invitation at the
petition stage, resolution of the issue will affect federal policy
concerning coverage provided by the Act and will implicate the
Secretary's administration of the Act.  The United States therefore
has a substantial interest in this case.

                               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' freight trains transport coal mined inland for loading
onto ships docked at the terminals' piers.  Upon arrival, the
coal-laden railway cars remain in the terminals' "barney" yards until
the shiploading process begins.  J.A. 35.  The process of loading coal
into ships' holds is highly mechanized 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
contents 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 eventually 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.  J.A. 21, 35;
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 shiploading process, to clear
away coal that spilled from the conveyor 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.  J.A. 21, 29, 30-31;  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 department performed that
task.  J.A. 21;  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 Department at Lambert's Point.
/2/ 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.  J.A. 35-37.

   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 Lampert's Point.  88-127
Pet. 9-10;  N&W Br. in Opp. 2-3.  Each respondent brought a timely
action under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51
et seq., in the appropriate circuit court of Virginia.  J.A. 20-21;
N&W Br. in Opp. 2.  C&O filed special pleas to the courts'
jurisdiction, contending that the respondents' exclusive remedy was
under the LHWCA, 33 U.S.C. 901 et seq. N&W moved to dismiss on the
same basis.  J.A. 28-29, 30, 34-35.  /3/

   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.  J.A. 40-42, 34-35.  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
(J.A. 28-29, 31, 38-39), and thus focused principally on whether 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 conflict between
the restrictive approach to the question that the Virginia Supreme
Court followed in White v. Norfolk & W. Ry., 217 Va. 823, 232 S.E.2d
807, cert. denied, 434 U.S. 860 (1977), and the more expansive
standard adopted by the federal courts of appeals in such decisions as
Price v. Norfolk & W. Ry., 618 F.2d 1059 (4th Cir. 1980).  J.A. 31-33,
37-38.  The courts viewed the Virginia Supreme Court's White standard
as confining LHWCA coverage to only those workers on the situs who
were "directly involved" in the loading of cargo.  J.A. 31-32, 37-38.
By contrast, the courts believed, the prevailing standard among the
federal courts of appeals is considerably broader, encompassing all
workers on the situs whose jobs comprise "an essential element in the
loading and unloading of the vessels." J.A. 32, 38.  As the McGlone
court interpreted 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." J.A. 32.  The McGlone and Goode courts resolved
this conflict between state and federal court interpretations 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" (J.A. 33), and the test
formulated by the federal courts was, in fact, the proper test.  J.A.
38.  test.  J.A. 38.

   Applying the federal courts' status test, the Virginia circuit
courts concluded that the LHWCA covered the respondents because 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." J.A. 31.  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." J.A. 29.  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" (J.A. 37), and was
thus "involved in the essential elements of loading and unloading"
(J.A. 36-37, citing Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423
(1985).  /4/

   3. The Supreme Court of Virginia consolidated Schwalb's and
McGlone's appeals and reversed.  J.A. 20-27.  The court acknowledged
that the United States Court of Appeals for the Fourth Circuit had
applied the LHWCA to a painter who did not actually handle cargo but
who had maintenance duties essential to the "entire (loading) process"
(J.A. 24-25 (quoting Price, 618 F.2d at 1062 n.4), and agreed here
that the failure to remove "trash coal" could interrupt that process.
J.A. 21.  But the Virginia court rejected the Price court's reasoning
and conclusion (J.A. 24-27), refused to adopt the "overall process"
standard, and adhered instead to the restrictive test set out in
White.  J.A. 26-27.  Under that test, the court held, workers must
show that their "'own work and employment'" bears "'a realistically
significant relationship' to 'traditional maritime activity involving
navigation and commerce on navigable waters,'" to bring themselves
within the LHWCA.  J.A. 23-24, 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" (J.A. 25, quoting 432 U.S. at 267),
the Virginia Supreme Court concluded that "the (Northeast Marine
Terminal) 'essential elements' standard is more nearly akin to the
(White) 'significant relationship' standard * * * than (to) the
'overall process' construction." J.A. 26.  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." Ibid.  Application of the White test thus required
reversal of the circuit courts' judgments.  Subsequently, relying on
its opinion in Schwalb, the Supreme Court of Virginia reversed the
judgment in Goode as well.  J.A. 46.  /5/

                          SUMMARY OF ARGUMENT

   1. The Supreme Court of Virginia erroneously construed Section
2(3), 33 U.S.C. 902(3), of the LHWCA to require that workers be
directly involved in the physical process of loading or unloading
cargo in order to qualify as employees under the Act.  Congress
defined "employee" to mean "any person engaged in maritime
employment." The breadth of the statutory language suggests that
courts should take an expansive view of the LHWCA's extended coverage,
to include any worker who performs work that is an essential element
or integral part of the cargo-handling process.  Moreover, the
remedial purposes of the 1972 amendments, which amended Section 2(3)
to eliminate disparities in benefits due to the location of injuries
and to adapt the Act's coverage to the realities of modern shipping
practices, demand a liberal construction of the status requirement.
The legislative history of the 1984 amendments to the LHWCA further
confirms the propriety of reading the status provision broadly.  These
amendments specifically exclude from coverage certain narrow
categories of employees whose connection to maritime employment is
considerably more tenuous than that of respondents here.  Even as to
these exclusions, however, Congress precluded LHWCA coverage only if
the workers involved were eligible for benefits under state workers'
compensation schemes.

   2. The state court's standard also conflicts with the principles of
coverage enunciated by this Court and followed by the lower federal
courts and the Benefits Review Board.  This Court has explicitly
admonished that the Act's status provision should be interpreted
broadly and in functional terms, so that the Act achieves its
objective of providing uniform coverage for those engaged in
longshoring and related jobs.  Thus, this Court has found coverage for
an employee whose work was an integral part of the unloading process
as altered by the advent of new technology, and for a terminal laborer
who spent only some of his time in indisputably longshoring
operations.  Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977).  Similarly, the Court has found coverage for two land-based
workers who did not load or unload material directly to or from ships,
but who nonetheless were responsible for some portion of the loading
and unloading activity and thus performed tasks that were an integral
part of the overall process of loading or unloading cargo.  P.C.
Pfeiffer Co. v. Ford, 444 U.S. 69 (1979).  In so doing, the Court has
rejected distinctions in coverage on the basis of union labels, the
"point of rest" theory, or similar restrictions created by employer
assignment policies, because they would artificially curtail the
functional analysis required by the Act.

   Consistently with these decisions, the courts of appeals and the
Benefits Review Board have uniformly viewed the question whether
employees are engaged in "longshoring" and thus have status under the
Act by focusing on the nexus between a worker's actual duties and the
overall process of loading and unloading cargo.  Employing this
functional approach, the courts of appeals and the Board have extended
LHWCA coverage to any employee on a covered situs who, like
respondents, performs duties that 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
handling maritime cargo.  The court below erred in rejecting this
approach and in limiting the Act's coverage to only that considerably
smaller class of employees who have a direct involvement with the
physical process of loading and unloading cargo.

   3. Finally, the state court's restrictive interpretation of
landward coverage under the LHWCA conflicts with the Department of
Labor's interpretation of the Section 2(3) status requirement, an
interpretation the Department has consistently applied since 1972 in
administering the LHWCA workers' compensation program.  Because that
interpretation is based on a permissible construction of the statute,
it is entitled to deference and should be given effect.

                               ARGUMENT

   "EMPLOYEES" ENGAGED IN "MARITIME EMPLOYMENT" INCLUDE ALL WORKERS ON
A COVERED SITUS WHO PERFORM WORK THAT IS AN ESSENTIAL ELEMENT OR
INTEGRAL PART OF THE PROCESS OF LOADING OR UNLOADING

   A. The Broad Language And The Legislative History Of The LHWCA's
Status Provision Require An Expansive View Of The Act's Coverage

   1. The language and legislative history of the 1972 amendments
indicate that they provide broader coverage of land-based workers than
that identified by the Supreme Court of Virginia.  Congress amended
the Act in an attempt to conclude a long saga of jurisdictional
disputes over the coverage of the LHWCA.  /6/ In particular, Congress
sought to expand the Act's scope;  it wanted to remedy the 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.  /7/ See. S. Rep. No. 1125, 92d Cong., 2d
Sess. 1, 12-13 (1972);  H.R. Rep. No. 1441, 92d Cong., 2d Sess. 10-11
(1972);  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" requirement,
expanding the definition of "navigable waters" under Section 3(a), 33
U.S.C. 903(a), to include "'any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other adjoining area
customarily used by an employer in loading, unloading, repairing, or
building a vessel.'" Northeast Marine Terminal, 432 U.S. at 263.
Second, Congress added a new "status" requirement to Section 2(3), 33
U.S.C. 902(3), in order "to describe affirmatively the class of
workers (it) desired to compensate." Northeast Marine Terminal, 432
U.S. at 264.  Under the amended status test, LHWCA coverage extends to
injured workers "engaged in maritime employment," including
specifically "any longshoreman or other person engaged in longshoring
operations, and any harbor-worker including a ship repairman,
shipbuilder, and shipbreaker." 33 U.S.C. 902(3).

   Congress did not define "maritime employment," "longshoreman," or
"longshoring operations" in either the Act or its legislative history.
 See Northeast Marine Terminal, 432 U.S. at 265.  /8/ Nor is coverage
limited in any case to the explicitly enumerated categories (like
"longshoreman" and "ship repairman") that appear in the section.  See
S. Rep. No. 1125, supra, at 13;  H.R. Rep. No. 1441, supra, at 10;
Perini, 459 U.S. at 318 n.27.  Rather, the broad language of the
status test itself suggests that the courts should take "an expansive
view of (its) extended coverage." Northeast Marine Terminal, 432 U.S.
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, the fact that pre-1972 benefits
under the LHWCA applied only to those workers injured over navigable
waters led to a significant "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 promised
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 onto the land much of the
longshoring work it wished to protect.  S. Rep. No. 1125, supra, at
13;  H.R. Rep. No. 1441, supra, at 10;  Northeast Marine Terminal, 432
U.S. at 270.  /9/

   These concerns support a construction of the Act's landward
coverage that focuses on the occupations of those the Act seeks to
protect rather than the "fortuitous circumstance" of where injuries
occur (S. Rep. No. 1125, supra, at 13;  H.R. Rep. No. 1441, supra, at
10;  see Pfeiffer, 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 provision, all
employees "involved in the essential elements of loading and
unloading" meet the status requirement of the Act;  employees are
excluded only 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 Terminal, 432 U.S. at 267
(emphasis added)).  Coverage thus extends to any worker "responsible
for some portion of" the loading and unloading activity since he or
she is "as much an integral part of the process * * * as a person who
participates in the entire process." Pfeiffer, 444 U.S. at 82-83.
/10/

   2. In 1984, Congress further amended the status provision.  /11/
Both the specifics of the change and the reasoning behind it confirm
that the landward scope of the status provision should be defined
broadly to include employees like respondents.

   First, Congress addressed the status of certain limited categories
of employees more tenuously connected to maritime work than those
involved here, but who had been considered by the courts to be covered
by the Act.  Specifically, it removed from coverage "individuals
employed exclusively to perform office clerical, secretarial,
security, or data processing work";  those working for a club,
restaurant, museum, or other recreational or retail establishment;
those employed by a marina (including "routine maintenance" workers,
but not construction or repair workers);  and employees of vendors,
suppliers, or transporters only temporarily on the premises of a
maritime employer.  /12/ In fashioning these categories, Congress
deliberately declined to remove employees engaged in "maintenance() or
repair of gear or equipment" from coverage of the Act;  although the
bill (S. 1182, 97th Cong., 1st Sess. (1981)) that became the basis for
the 1984 amendment contained such an exclusion, the idea died in
committee.  Compare S. 1182 as introduced, 127 Cong. Rec. 9829 (1981),
with S. Rep. No. 498, 97th Cong., 2d Sess. 2 (1982).  /13/

   Further, Congress made clear that even the exclusions it delineated
"are intended to be narrowly construed." H.R. Rep. No. 570, 98th
Cong., 1st Sess. 5 (1983).  And, it provided that workers within the
named categories are excluded only if they are eligible for state
workers' compensation programs.  33 U.S.C. 902(3) (Supp. IV 1986).
/14/

   The reason Congress fashioned the specific exclusion it did in 1984
is also indicative of the scope of coverage under the Act.  Congress
sought "to reaffirm the purposes of the 1972 jurisdictional changes,
and in that light * * * (to exclude) certain fairly identifiable
employers and employees" who, although at work on a covered situs,
lack "a sufficient nexus to maritime navigation and commerce." S. Rep.
No. 81, 98th Cong., 1st Sess. 25 (1983).  Specifically, Congress
determined whether employees had "a sufficient nexus "to things
maritime by looking to either "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.  /15/ In turn, it analyzed the "nature of the work"
done in terms that confirm the broad, functional approach employed by
the federal judiciary since 1972.  See, e.g., S. Rep. No. 81, supra,
at 30 (excluding employees temporarily on premises because their
duties were "not an integral part" of traditional maritime
employment);  130 Cong. Rec. 25,903 (1984) (remarks of Rep. Miller)
(coverage focuses on "substance and purpose of the work being
performed as integral to overall longshore operations");  cf. H.R.
Rep. No. 570, supra, at 3-4 (employing functional approach).
Congress's consideration of the "nature of the hazards" affecting
workers additionally supports coverage of workers facilitating a
loading process, because they are subject to the same harbor-side
risks as those actually handling cargo.  /16/ Cf. H.R. Rep. No. 570,
supra, at 3 (noting that clericals confined to office work were
excluded from coverage, while those who perform clerical duties on
piers or in warehouses were included).  /17/

   In short, both the language of the status provision and the
purposes expressed by Congress in 1972 and 1984 support an expansive
approach to the landward coverage of the LHWCA, rather than the
restrictive standard applied by the Supreme Court of Virginia.

   B. The State Court's Standard Conflicts With The Principles Of
Coverage Enunciated By This Court And Followed By The Lower Federal
Courts And The Benefits Review Board

   1. 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 checking and recording cargo as
it is loaded or unloaded) and a longshoreman who at the time of injury
was working as a "terminal laborer" helping to load already-discharged
cargo into consignees' trucks.  After reviewing the history of the
LHWCA with attention to Congress's continued efforts to provide
uniform coverage to "amphibious" workers (432 U.S. at 257, 271), the
Court concluded that the Act's status provision should be broadly
interpreted.  The Court held that the "checker" satisfied the status
requirement because, although his longshoring tasks had been somewhat
changed by technology (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
containerization." Id. 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
artificially curtailed its approach.  First, it denied that union
membership should determine eligibility as a "longshoreman" 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 rejected a limitation not unlike that
adopted by the Virginia court here.  The Court held that the "point of
rest" doctrine -- according 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.  Id.
at 275, 276.

   This Court confirmed its expansive interpretation of the landward
extension of coverage in P.C. Pfeiffer v. Ford, supra, where it found
coverage for two workers, neither of whom loaded or unloaded material
directly to or from ships.  /18/ The Court 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 "(l)and-based workers who do
not handle containerized 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
maritime 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."
Id. at 80, 82-93 (citation omitted);  see also Herb's Welding, 470
U.S. at 423, 425 (injured worker not an employee under Section 2(3)
because "(h)is work had nothing to do with the loading or unloading
process, nor (was) there any indication that he was even employed in
the maintenance of equipment used in such tasks") (emphasis added).

   Consistently with the rationale of these decisions the courts of
appeals and the Benefits Review Board /19/ uniformly view the question
whether employees are engaged in "longshoring" by focusing on the
nexus between a worker's actual duties and the overall process of
loading and unloading cargo.  /20/ This approach takes into account
the reality of conventional longshoring operations:  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 and the
Board 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 including physically or mechanically
loading or unloading maritime cargo.  The standard applied by the
courts of appeals, /21/ and by the Board, /22/ specifically
encompasses workers who, like respondents, engage in cleaning,
maintenance, and repair of equipment used to load ships.  /23/

   2. In holding that respondents were not employees under the LHWCA,
the Supreme Court of Virginia expressly rejected the courts of
appeals' functional test and adhered, instead, to its earlier decision
in White v. Norfolk & W. Ry., supra.  J.A. 26-27.  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 Weyerhaeuser Co. v. Gilmore, 528 F.2d at 961).
/24/ The White decision makes clear that the Supreme Court of Virginia
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
concluded that he lacked the requisite relationship to the loading of
cargo, because he was "not actually handling any cargo, either
manually or mechanically," and "was not manipulating * * * any of the
controls of the electrical mechanism, which furnished the power for
this automated loading process." 217 Va. at 832-833, 232 S.E.2d at
813.  Applying 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'" (J.A. 25),
notwithstanding that failure to clean trash coal from the rollers and
belts would halt the loading process (J.A. 21) and that only the
"vagaries of union jurisdiction" -- specifically, union agreements
covering various groups of workers at the terminal -- prohibited
Schwalb and McGlone from placing the coal back on the belts (ibid.).
/25/ 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 J.A. 35).  /26/

   The Supreme Court of Virginia's apparent conclusion that Northeast
Marine Terminal and Pfeiffer established the outer limits of coverage
is inappropriate.  As this Court has noted, the claimants in those
cases were "'engaged in longshoring operations,'" and the Court "had
no occasion * * * to determine other possible applications of the
status test to activities performed on the expanded landward situs."
Perini, 459 U.S. at 318 n.27.  Thus, the Virginia court read the
"essential elements" and "overall processes" language in Northeast
Marine Terminal and Pfeiffer in far too cramped a manner (J.A. 25-26),
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 technology on cargo handling techniques, for the high
degree of job specialization, or for the extent of unionization within
the longshore industry.  /27/

   Nor is the line drawn by the Virginia court rendered more palatable
by the fact that it may, in some circumstances, relegate employees to
a tort, rather than a state workers' compensation remedy.  Congress
deliberately chose to extend federal workers' compensation because of
the advantages specific to that system.  See note 10, supra;  S. Rep.
No. 1125, supra, at 2 (noting necessity for compensation system to
ensure employer responsibility for unsafe conditions in high-risk
industry, and consistency of 1972 amendments with recommendations by
National Commission on State Workmen's Compensation);  H.R. Rep. No.
1441, supra, at 2-3 (similar);  see also Noguerira, 281 U.S. at 136
(Congress that enacted LHWCA "distinctly recognized" the importance of
the policy of compensation acts, and their advantages in providing for
appropriate compensation in the case of injury or death of employees
without regard to the fault of the employer");  Pennsylvania R.R. v.
O'Rourke, 344 U.S. 334, 337 (1953) (LHWCA chosen as compensation act
instead of employers' liability statute so as to bring admiralty law
into harmony "with modern concepts of the duty of an employer although
without fault to carry the burden of industrial accidents").  /28/

   C. The Department Of Labor's View On The Scope of LHWCA Coverage Is
Entitled To Deference

   The Supreme Court of Virginia's restrictive construction of
landward coverage under the LHWCA also conflicts with the expansive
interpretation of the Section 2(3) status requirement that the
Department of Labor has consistently applied since 1972 in
administering the LHWCA workers' compensation program.  Under the
Department's interpretation, respondents would be considered employees
under Section 2(3) because their work was directly related to the
equipment used to load cargo.  See Office of Workers' Compensation
Programs, Employment Standards Admin., U.S. Dep't of Labor, LHWCA
Program Memorandum No. 58, Guidelines for Determination of Coverage of
Claims Under Amended Longshoremen's Act 8-9 (Aug. 10, 1977)
("Longshoring operations may be regarded as all operations necessary
to the transfer of cargo between land and water modes of
transportation which are performed by workers associated with that
transfer rather than with the transportation itself.  The test is
essentially quite simple:  was the injured worker employed in the
waterfront cargo-handling industry, in work directly related to the
cargo or to the equipment or premises used to handle it?  If so, the
worker had 'employee' status under Section 2(3).");  Northeast Marine
Terminal, 432 U.S. at 272 (Director's view is that "'(m)aritime
employment * * * include(s) all physical tasks performed on the
waterfront, and particularly those tasks necessary to transfer cargo
between land and water transportation'").

   The Department's interpretation of the Section 2(3) status
requirement is "based on a permissible construction of the statute."
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843 (1984).  Thus, it is entitled to deference and should be
given effect.  /29/

                              CONCLUSION

   The judgments of the Supreme Court of Virginia should be reversed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   CHRISTINE DESAN HUSSON

      Assistant to the Solicitor General

   JERRY G. THORN

      Acting Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   CHARLES I. HADDEN

      Deputy Associate Solicitor

   CHRISTINE L. OWENS

      Attorney Department of Labor

   APRIL 1989

   /1/ The Longshoremen's and Harbor Workers' Compensation Act was
retitled by the Longshore and Harbor Workers' Compensation Act
Amendments of 1984, Pub. L. No. 98-426, Section 27(d)(1), 98 Stat.
1654.

   /2/ N&W employs machinists throughout its rail system, assigning
them to different sites and different jobs on the basis of seniority.
J.A. 35-36;  88-127 Br. in Opp. 5-6.

   /3/ FELA makes "common carrier(s) by railroad" liable in damages to
their employees for work-related injuries occurring as a result of
employer negligence, and confers concurrent jurisdiction over claims
under the Act on state and federal courts.  45 U.S.C. 52, 56.  As this
Court long ago recognized, however, the LHWCA is the exclusive remedy
for railroad workers who are injured while engaged in maritime
employment.  Nogueira v. New York, N.H. & H.R.R., 281 U.S. 128,
136-138 (1930).

   /4/ The circuit court in Goode, explicitly concluding that the
federal standard should prevail over the State's White standard to the
extent that the standards differed, held in the alternative that the
activities of Goode qualified him for coverage under the White test as
well.  J.A. 37.

   /5/ The Court did not consider, as an independent ground on which
it could sustain the lower court's holding, the fact that Goode's
duties as a pier mechanic at times involved work "over the water"
(88-127 Br. in Opp. 6;  J.A. 191, 195), and that such work therefore
may have qualified Goode as a covered employee under Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249, 273 (1977) (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, OWCP v. Perini North River Assocs., 459 U.S.
297, 311-312 (1983) (workers injured on navigable waters before 1972
were covered under LHWCA without regard to duties performed;
post-1972 Act covers all who were previously covered).

   /6/ That saga, frequently revisited by this Court, began with this
Court's determination in Southern Pac. Co. v. Jensen, 244 U.S. 205
(1917), that a State was without power to extend workers' compensation
to a worker injured on a gangplank between a wharf and a vessel lying
in navigable waters.  According to the Court, such state action
threatened the "uniformity in respect to maritime matters" that the
admiralty clause of the Constitution was meant to ensure (id. at 217);
 the Court consequently struck down two subsequent attempts by
Congress to delegate the power to provide workers' compensation for
maritime injuries to the States.  See Knickerbocker Ice Co. v.
Stewart, 253 U.S. 149 (1920);  Washington v. W.C. Dawson & Co., 264
U.S. 219 (1924).  In response, Congress in 1927 enacted the LHWCA
which provided federal compensation to workers injured on the seaward
side of the "Jensen line," but only "if recovery * * * (could) not
validly be provided by State law." The Longshoremen's and Harbor
Workers' Compensation Act of 1927, ch. 509, Section 3, 44 Stat. 1426.

   The work of hammering out the respective jurisdictions of the state
and federal systems continued during the next four decades.  By 1972,
three jurisdictional spheres of coverage had emerged.  Sun Ship, Inc.
v. Pennsylvania, 447 U.S. 715, 719 (1980).  Concurrent federal and
state remedies were available for maritime injuries that were also of
"local concern" (Calbeck v. Travelers Ins. Co., 370 U.S. 114, 126
(1962)), while federal remedies alone were available for maritime
injuries that were not "local" in character (Jensen, supra).  Finally,
workers injured landward of the Jensen line -- beyond the water's edge
-- were consigned to the varying remedies provided by state workers'
compensation laws.  As to these workers, the Court explicitly invited
the Congress to intervene once again, observing that "(t)here is much
to be said for uniform treatment of longshoremen irrespective of
whether they were performing their duties upon the navigable waters *
* * or whether they were performing those same duties on a pier."
Director, OWCP v. Perini North River Assocs., 459 U.S. 297, 316 (1983)
(describing the Court's statement in Nacirema Operating Co. v.
Johnson, 396 U.S. 212, 219 (1969)).  In 1972, Congress responded to
the invitation.  See Perini, 459 U.S. at 316.

   /7/ The amendments changed the Act in another major respect as
well.  As a quid pro quo for the expansion of coverage under the Act,
Congress eliminated circumvention of the LHWCA compensation system
through resort to an action for unseaworthiness.  Sun Ship, Inc. v.
Pennsylvania, 447 U.S. 715, 724 (1980);  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.  Prior to the 1972 amendments, a
longshoreman or related worker could bring an unseaworthiness action
against a ship owner for injury incurred on board the ship, and could
do so even if the condition causing the injury had been the fault of
the longshoreman or his or her employer.  See, e.g., Seas Shipping 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 express or implicit warranty of workmanlike performance.  See,
e.g., Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124
(1956).

   /8/ The Committee reports accompanying the Act posit only a single
"typical example" of the new status requirement:  workers unloading
cargo from a ship or checking it as it is unloaded are to be covered,
while those picking it up for transshipment inland, or performing
"purely clerical" functions not directly involved with the loading or
unloading process, are not to be covered.  S. Rep. No. 1125, 92d
Cong., 2d Sess. 13 (1972);  H.R. Rep. No. 1441, 92d Cong., 2d Sess. 11
(1972);  Northeast Marine Terminal, 432 U.S. at 266, 267.  The example
is useful in identifying the outer bounds of coverage, but it clearly
"does not speak to all situations." Id. at 267.

   /9/ The magnitude of the change in the longshoring industry
effected by containerization alone, and the difficulties that change
engenders when it is necessary to identify "longshoring tasks," have
been documented by this Court.  See NLRB v. International
Longshoremen's Ass'n, 447 U.S. 490 (1980) (concerning appropriate
focus of work preservation agreement in longshoring industry under
National Labor Relations Act).

   /10/ The expansion effected by the 1972 amendments is particularly
telling for purposes of this case because it targeted not only
inadequate state compensation systems, but tort liability remedies as
well.  Congress made the decision to expand its federal workers'
compensation system after giving "the most careful consideration" to a
report prepared by the National Commission on State Workmen's
Compensation Laws.  H.R. Rep. No. 1441, supra, at 2;  S. Rep. No.
1125, supra, at 2;  see Report of the National Commission on State
Workmen's Compensation Laws, (Washington D.C., July 31, 1972)
(hereafter Report on Comp. Laws).  The report compared state
compensation systems to those providing remedies through actions for
negligence.  It found that a modern workers' compensation system could
provide broad coverage through liability without fault, substantial
protection against interruption of income, and assured provision of
medical services, while "(e)mployees excluded from coverage are forced
to fall back on liability suits, a drawn-out, costly, and uncertain
process that was dismissed long-ago as a means of dealing with
occupational injuries and diseases." Report on Comp. Laws 35, 45;  see
generally id. at 25, 119-120.  Thus, the Commission endorsed as an
ultimate objective "universal mandatory coverage" of workers under
compensation systems.  Id. at 44.  And, in order to further that goal,
the Commission recommended, inter alia, "that the term 'employee' be
defined as broadly as possible." Id. at 48.  Congress, in turn, noted
that "the provisions in (the 1972 amendments) are fully consistent
with the recommendation of the National Commission * * * (and the
bill) will provide an adequate, prompt, and equitable system of
compensation." S. Rep. No. 1125, supra, at 2.

   /11/ The 1984 amendments and their history are directly relevant to
the instant case involving respondent Goode, who was injured on
February 11, 1985.  88-127 Br. in Opp. 7.  They are also relevant to
the cases involving respondents McGlone and Schwalb, insofar as they
clarify the intent of the 1972 amendments.  See Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 380-381 (1969).  See also note 14, infra.

   /12/ Congress also exempted from the Act aquaculture workers and,
for unrelated reasons, employees building, repairing, or dismantling
small, recreational vessels.  See H.R. Rep. No. 570, 98th Cong., 1st
Sess. 6 (1983);  S. Rep. No. 81, 98th Cong., 1st Sess. 26-28 (1983).

   /13/ The proposed bill also contained an exclusion for "railcar
loading and unloading." 127 Cong. Rec. 9829 (1981).  The exclusion
similarly did not leave committee.  See. S. Rep. No. 498, 97th Cong.,
2d Sess. 2 (1982).

   /14/ While emphasizing the limited nature of the new exclusions,
Congress simultaneously was at pains to disclaim that its exclusions
implied coverage (or noncoverage) for other groups.  Although the
Conference Report does not repeat the refrain, the Senate Report
emphasizes that:

         It is the committee's intention that these amendments not be
      interpreted to enlarge the present scope of the act's coverage.
      * * * (I)t is obvious that a large body of decisional law
      relative to traditional maritime employers and harbor workers
      remains undisturbed.  (A) decision not to evaluate, endorse, or
      reject, explicitly or implicitly, the lower court and agency
      decisions in these other areas was made deliberately by the
      Committee in conjunction with the limited changes that are being
      made.

S. Rep. No. 81, 98th Cong., 1st Sess. 26 (1983);  see also, e.g., 129
Cong. Rec. 16255 (1983) (remarks of Sen. Hatch);  130 Cong. Rec.
25,902 (1984) (remarks of Rep. Miller);  130 Cong. Rec. 8325 (1984)
(explanation of House amendment).

   While Congress's actions in 1984 must therefore be viewed with some
caution, they indicate at the least that Congress considers the plain
language of the status provision sufficiently broad to include those
written out of the Act in 1984 -- because their exclusion from
coverage under the status provision becomes effective only if those
same workers are covered under state acts.  In the words of the House
Report, workers not protected by state programs would "remain under
the coverage of the Longshore Act." H.R. Rep. No. 570, 98th Cong., 1st
Sess. 5 (1983) (emphasis added);  see also S. Rep. No. 81, supra, at
18;  130 Cong. Rec. 8324 (1984) (remarks of Rep. Erlenborn)
(amendments "carve out" areas);  id. at 8325 (explanation of House
amendment) (legislation recognizes that employees "now covered" by Act
may have duties with only attenuated relationship to maritime
employment).

   Moreover, it is relevant that Congress could reach "no political
consensus" to disturb the judicial interpretation of the status
provision that had developed by 1984.  130 Cong. Rec. S11,623 (daily
ed. Sept. 20, 1984) (remarks of Sen. Hatch).  If anything, Congress
indicated its acceptance of "the limits of jurisdiction (that) ha(d)
begun to emerge out of the judicial process." S. Rep. No. 81, supra,
at 25;  see also 130 Cong. Rec. S11,622 (daily ed. Sept. 20, 1984)
(remarks of Sen. Hatch) (courts' interpretation of LHWCA in many
instances "in keeping" with congressional intent although sometimes
"clearly out of bounds");  Lorillard v. Pons, 434 U.S. 575, 580
(1978).  By 1984, the courts of appeals had consistently interpreted
the coverage of the LHWCA to include maintenance and repair workers
who facilitated the loading process.  See note 21, infra (citing
cases).

   /15/ See also H.R. Rep. No. 570, supra, at 3;  130 Cong. Rec. 8322
(1984) (remarks of Rep. Miller);  130 Cong. Rec. S11,622 (daily ed.
Sept. 20, 1984) (remarks of Sen. Hatch);  130 Cong. Rec. 25,902 (1984)
(remarks of Rep. Miller).

   /16/ This Court's determination in Herb's Welding, Inc. v. Gray,
470 U.S. 414, 425 (1985), that the hazards faced by an employee were
relevant only to the situs inquiry, not to the status provision of the
Act, was made on the basis of the language and history of the 1972
amendments alone, and in the context of an employee whose work was
wholly unrelated to the loading and unloading process.  See note 27,
infra.

   /17/ Congress also acted in 1984 for a simpler end:  it sought to
stem the litigation generated by the 1972 status provision.  S. Rep.
No. 81, supra, at 24-25.  Several members of Congress indicated their
belief that the litigation had been generated by the impression of the
definition of covered employees.  See, e.g., 130 Cong. Rec. 8335
(1984) (remarks of Rep. Boggs);  130 Cong. Rec. S11,622 (daily ed.
Sept.  20, 1984) (remarks of Sen. Hatch).  Another member indicated
that the litigation had been caused by "the failure (of courts) to
recognize that covered longshoring workers "have traditionally engaged
in a full range of activities respecting the handling of ocean cargo"
and had job tasks (including, for example, the use of computers) that
reflected the advent of modern technology.  See 130 Cong. Rec. 25,903
(1984) (remarks of Rep. Miller).  In either case, Congress's purpose
to minimize litigation must enter the calculus of the Act's
interpretation.  That purpose will be most effectively served by a
bright line definition that clearly protects all activity on the
waterfront that is "integral to overall longshore operations." Ibid.

   /18/ Ford was a "warehouseman" injured while fastening military
vehicles (which had been unloaded from a vessel days before) to a
railroad flatcar.  Under union rules, 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 shoreside point of rest onto a
vessel.  Pfeiffer, 444 U.S. at 71.  Bryant was a "cotton header"
injured while unloading cotton from its land transport by wagon into a
pier warehouse.  His loading activities were limited by union rules
similar to those applied to Ford.  Id. at 71-72.

   /19/ The Benefits Review Board is charged under Section 21(b)(3) of
the LHWCA, 33 U.S.C. 921(b)(3), with determining "appeals raising a
substantial question of law or fact taken by any party in interest
from decisions with respect to (benefit) claims of employees." Since
the Board is not a policymaking agency, its interpretation of the
LHWCA is not entitled to deference for that reason, see Potomac Elec.
Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980), but the
Board does serve as a specialized administrative appellate court in
cases arising under the Act.

   /20/ The courts use the same approach in determining whether
employees are "harbor-workers." See, e.g., Newport News Shipbuilding &
Drydock Co. v. Graham, 573 F.2d 167 (4th Cir.), cert. denied, 439 U.S.
979 (1978).

   /21/ See, e.g., Harmon v. Baltimore & O.R.R., 741 F.2d 1398, 1404
(D.C. Cir. 1984) (railroad worker injured while repairing coal loading
equipment is covered employee because his "functions were an integral
part of the process of unloading and loading vessels and were vital to
the movement of maritime cargo");  Prolerized New England Co. v.
Miller, 691 F.2d 45, 47 (1st Cir. 1982) (worker performing maintenance
of shiploading equipment plays "integral part" in loading process);
Sea-Land Services, Inc. v. Director, OWCP, 685 F.2d 1121, 1123 (9th
Cir. 1982) (LHWCA applies to mechanic responsible for repairing
equipment used to load cargo onto ships and move it within terminal
area because "repair and maintenance of equipment necessary to loading
and unloading ships is integral to the process and is therefore
'maritime employment'");  Hullinghorst Indus., Inc. v. Carroll, 650
F.2d 750, 755-756 (5th Cir. 1981) (carpenter building scaffolding for
repairs to loading pier engaged in "maritime employment," since "the
maintenance and repair of tools, equipment, and facilities used in
indisputably maritime activities lies within the scope of 'maritime
employment'" under the Act and such work is "an integral part * * *,
an essential and indispensable step in the (pier) repairs to be
effected"), cert. denied, 454 U.S. 1163 (1982);  Garvey Grain Co. v.
Director, OWCP, 639 F.2d 366, 370 (7th Cir. 1981) (millwright
responsible for maintenance and repair of shiploading equipment is
employee under LHWCA, since these "functions are an integral part of
the loading and unloading" process and "are directly connected with
and are vital to the movement of maritime cargo");  Prolerized New
England Co. v. Benefits Review Bd., 637 F.2d 30, 37 (1st Cir. 1980)
(coverage extends to employee whose duties include shortening scrap
steel for shipment because "(v)iewed in terms of this functional
analysis * * * (the claimant's) repair, maintenance and occasional
operation of the varied elements of Prolerized's integrated loading
system qualify as peculiarly maritime services"), cert. denied, 452
U.S. 938 (1981);  Price v. Norfolk & W. Ry., 618 F.2d 1059, 1061 (4th
Cir. 1980) (railroad worker injured while painting "gallery" used for
loading grain into ships falls within LHWCA's ambit because "(t)he
gallery, and its maintenance, are essential to the loading and
unloading of all vessels");  see also 4 A. Larson, Larson's Workmen's
Compensation Law Sections 89.45(b), 89.45(e), 89.45(f), 89.49 (1989)
(citing cases).

   /22/ See, e.g., Powell v. International Transp. Services, 18 Ben.
Rev. Bd. Serv. (MB) 82, 84 (1986) ("vessel planning and stowage
coordinator" is employee under the LHWCA because his "duties planning
the loading and unloading of cargo," though clerical, "are integral to
the longshoring process and as such are peculiarly maritime");
Wuellet v. Scappoose Sand & Gravel Co., 18 Ben. Rev. Bd. Serv. (MB)
108, 110-111 (1986) (welder/mechanic injured while repairing conveyor
belt at barge loading facility is covered under LHWCA since "the
repair of equipment at employer's barge facility is an integral part
of the loading process * * * and therefore is a maritime activity");
Verderane v. Jacksonville Shipyards, Inc., 20 Ben. Rev. Bd. Serv. (MB)
62, 64 (1984) (manager of shipyard's Medical, Safety and Security
Department, whose duties required inspecting certain shipbuilding
equipment and assuring compliance with safety regulations, was covered
employee since he "performed an integral role in assuring" shipyard
workers' safety and his duties "were important to the overall progress
of maritime construction");  Bennett v. Mason Terminals, Inc., 14 Ben.
Rev. Bd. Serv. (MB) 526, 528-529 (1981) (workers refurbishing
containers satisfy LHWCA's status requirement as their "work (is)
essential to the continued use of containers and thus is integral to
longshoring operations";  benefits precluded here, however, because
workers were not employed on a covered situs);  De Robertis v. Oceanic
Container Serv., Inc., 14 Ben. Rev. Bd. Serv. (MB) 284, 287-288 (1981)
(container repairmen, even if "not personally involved in loading and
unloading cargo from ships" are nonetheless covered employees under
the LHWCA, because "they maintained and repaired equipment used in
longshoring operations" and "(t)heir work was an 'integral part' of,
or 'necessary ingredient' in, longshoring operations," citing Cabezas
v. Oceanic Container Serv., Inc., 11 Ben. Rev. Bd. Serv. (MB) 279,
285-286 (1979));  see also 4 A. Larson, supra, Sections 89.45(b),
89.45(e), 89.45(f), 89.49 (citing cases).

   /23/ The treatise writers agree that an expansive approach to
coverage under the Act is appropriate.  See 1 M. Norris, The Law of
Maritime Personal Injuries 3rd 128 (Supp. 1988);  4 A. Larson, supra,
Section 89.42(a), at 16-261 (rejecting, in discussion concerning
"point of rest" theory, semantic distinctions excluding from coverage
worker "whose entire function is associated with the movement of goods
within the terminal").

   /24/ The Supreme Court of Virginia's continued reliance on
Weyerhaeuser Co. v. Gilmore is misplaced.  The Ninth Circuit has made
it clear that it reads Weyerhaeuser's "realistically significant
relationship" language to mean that "repair and maintenance of
equipment necessary to loading and unloading ships is integral to the
process and is therefore 'maritime employment' covered by the Act."
Sea-Land Service, Inc., 685 F.2d at 1123.  Thus, the Ninth Circuit
applies its Weyerhaeuser formulation in harmony with authority in the
other federal circuits.

   /25/ 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.

   /26/ Goode makes an unpersuasive argument that the state court's
exclusion of him from LHWCA coverage is not at odds with the
overwhelming weight of federal case law because, until the "unloading
process had been completed, the coal was still in land transportation
and was not in the process of being loaded aboard a ship." 88-127 Br.
in Opp. 20-21.  The circuit court specifically found that "the process
of loading the coal into vessels begins" once the rail cars leave the
barney yard (J.A. 35), 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,
741 F.2d at 1404 (citing Caldwell v. Ogden Sea Transport, Inc., 618
F.2d 1037, 1050 (4th Cir. 1980) (Conti cited only for "integral part"
language);  Price, supra (drawing no Conti-like distinction between
"traditional railroading" as opposed to "traditional maritime" tasks),
and Vogelsang v. Western Maryland Ry., 670 F.2d 1347, 1348 (4th Cir.
1982) (distinguishing Conti)).  This and other courts have, of course,
found railroad workers covered by the LHWCA despite the parallel
coverage of the FELA.  See, e.g., Pennsylvania R.R. v. O'Rourke, 344
U.S. 334 (1953);  Harmon, supra;  Vogelsang, supra;  Price, supra;
cf. Powell v. Cargill, Inc., 444 U.S. 987 (1979) (vacating and
remanding for reconsideration in light of Pfeiffer, supra, lower
court's exclusion from coverage of employee whose "work was more
oriented to the rails than to the sea" (573 F.2d 561, 564 (1978),
withdrawn after remand, 625 F.2d 330 (9th Cir. 1980)).  In such
circumstances LHWCA coverage is exclusive under 33 U.S.C. 905.

   /27/ To the extent that the state court relied on Herb's Welding,
Inc. v. Gray, supra, its reliance is misplaced.  See J.A. 26.  The
employment at issue in that case -- off-shore drilling -- was not
maritime, and the claimant, a welder on an oil rig, had "nothing to do
with the loading or unloading process" and was not "even employed in
the maintenance of equipment used in such tasks." 470 U.S. at 425.  By
contrast, petitioners' terminal operations are uncontestably maritime
in nature, and the respondents plainly were "employed in the
maintenance of equipment used to (load and unload cargo)."

   /28/ The advantages offered by a workers' compensation system, as
opposed to a system of tort liability such as the FELA, have
repeatedly been recognized by this Court and by others.  See, e.g.,
Parker v. Motor Boat Sales, 314 U.S. 244, 249 (1941) (discussing
congressional purpose to extend "modern principle of compensation" by
enacting LHWCA) (quoting S. Rep. No. 973, 69th Cong., 1st Sess. 16
(1926));  Urie v. Thompson, 337 U.S. 163, 196-197 (1949) (Frankfurter,
J., concurring in part) (describing concept of negligence as
"antiquated and uncivilized basis for working out rights and duties
for disabilities and deaths inevitably due to the conduct of modern
industry");  Wilkerson v. McCarthy, 336 U.S. 53, 65 (1949)
(Frankfurter, J., concurring) (describing concept of negligence in
FELA cases as an "outmoded * * * working principle for the adjustments
of injuries inevitable under the technological circumstances of modern
industry," and as a "cruel and wasteful mode" of dealing with injuries
that has "long been displaced in industry generally by the insurance
principle that underlies workmen's compensation laws");  cf. Calbeck,
370 U.S. at 121-122 (noting, while reviewing disadvantages of
jurisdictional confusion in LHWCA cases, that Act's framers meant "to
assure the existence of a compensation remedy for every * * * injury,
without leaving employees at the mercy of the uncertainty, expense,
and delay of fighting out (results) in litigation").

   Larson notes in his treatise that the FELA, while considered a
great step forward as a method of handling work injuries in 1908, had,
by 1912, already begun to receive unfavorable comparison with
non-fault compensation acts beginning to appear in the States.  See 4
A. Larson, supra, Section 91.74, at 16-481;  see also id. at Section
91.76 (observing that the debate about the continued vitality of the
FELA generally assumes that the negligence principle is an
"anachronism" in the handling of workplace injuries, but continues
because of failure of non-fault systems to meet objectives);  Report
on Comp. Laws 25, 45, 119-120 (criticizing tort liability suits as
method of workers' compensation because determination of negligence by
litigation expensive, leaves some workers without protection for
injury, crowds court dockets, delays payment, and may deter successful
rehabilitation).

   /29/ See, e.g., Morrison-Knudsen Constr. Co. v. Director, OWCP, 461
U.S. 624, 635 (1983) (consistent practice of those charged with
enforcement and interpretation of LHWCA entitled to deference);
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 compelling indications that it is wrong").