Dravo Corp. v. Gregory Winston Banks
Dravo Corp. v. Gregory Winston Banks
Opinion of the Court
OPINION OF THE COURT
This petition for review of an order of the Benefits Review Board by an employer and its workers’ compensation insurance carrier presents the question whether one who is employed by a shipbuilder as an unskilled laborer is covered by the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act [LHWCA], 33 U.S.C. §§ 901-950. Because the nature of respondent Banks’ primary duties does not satisfy the status requirement of the LHWCA, we will set aside the order of the Benefits Review Board which afforded Banks coverage under the Act.
I.
Gregory Banks works as a “laborer” at Dravo Corporation’s Engineering Works Division in Neville Island, Pennsylvania. There is no serious disagreement among the parties as to his job functions: he does essentially unskilled jobs related to plant maintenance, such as cleaning up debris. On the day he was injured, Banks had been assigned to spread salt on walkways and steps wherever he saw ice. This included areas in the plant’s boat yard. Banks injured his neck and shoulder while lifting a bag of salt, and was temporary disabled as a result.
II.
In considering Dravo’s contention that a person in Banks’ position is not covered under the terms of the LHWCA,
A.
As to situs, 33 U.S.C. § 903(a) requires that the injury occur upon “navigable waters . . . including any . . adjoining area customarily used by an employer in building a vessel.” Dravo’s Neville Island facility is devoted to the construction and launching of barges and towboats. Its operations are described in the earlier opinion of this court in Dravo Corp. v. Maxin, 545 F.2d 374, 376 (3d Cir. 1976). Because the entire area comprises a comprehensive shipbuilding operation, we have no difficulty in determining that Banks satisfied the situs requirement of the LHWCA.
B.
We cannot make a similar determination in regard to Banks’ status. The LHWCA defines covered employees as “any person engaged in maritime employment, including any . . . shipbuilder . .” 33 U.S.C. § 902(3). In order to recover, then, Banks must fall within the statutory term “shipbuilder”. Banks admits that he was not directly involved in such activities as welding parts of a ship together, but argues that since the Neville Island operation is an integrated “assembly line” shipbuilding facility, and since his job is “directly supportive of those involved in shipbuilding”, he should be covered.
The “integral part” approach finds support in the cases. For example, in Northeast Marine Terminal, supra, the Supreme Court determined that respondent Blundo, a checker, was covered under the Act because his tasks were “clearly an integral part of the unloading process.” At 271, 97 S.Ct. at 2361. And in Maxin, supra, this court said that Maxin’s functions were “an integral part of the new ship construction activities.” 545 F.2d at 380. But in each of these cases, there was a close functional nexus between the individual’s job and “longshoring” or “shipbuilding”, respectively. Blundo’s job was to check cargo as it was removed from the ship and placed upon the pier. Maxin’s work involved burning steel plates which would ultimately become bottoms and decks of barges, i. e., he was involved in the actual fabrication of ship materials.
We do not find the same close functional nexus here. Rather than drawing a parallel between Banks and someone in Maxin’s position, we believe the parallel should be drawn between Banks and the excluded clerical worker in this court’s recent opinion in Maher Terminals, Inc. v. Farrell, 548 F.2d 476 (3d Cir. 1977). In Maher Terminals, it was determined that a clerk in a maritime terminal office was not an employee “handling cargo” as contemplated in Sea-Land Service, Inc. v. Director, 540 F.2d 629 (3d Cir. 1976), and thus was not covered.
Banks’ duties have no traditional maritime characteristics, but rather are typical of the support services performed in any production entity, maritime or not. “Plant maintenance” is required in any business. The government’s brief
Thus, under the same rationale that excluded a purely clerical worker in Maher Terminals, supra, Banks’ status is not covered under the LHWCA.
The order of the Benefits Review Board which afforded Banks coverage under the LHWCA will be set aside.
. Dravo also advances the argument that if the LHWCA is construed to cover all employees of a shipbuilder, it is an unconstitutional extension of the jurisdiction granted Congress over admiralty and maritime matters. This argument must be rejected as conceptually indistinguishable from the primary claim Dravo made, unsuccessfully, in Dravo Corp. v. Maxin, 545 F.2d 374 (3d Cir. 1976). There, Dravo argued that Congress could not extend coverage under the LHWCA landward to employees working in new construction. Simply to add the word “all” does not cast a new constitutional light on the argument.
. Both Maher and Sea-Land were cited, not unfavorably, in Northeast Marine Terminal, supra. 432 U.S. at 272 n. 34, 277 n. 40, 97 S.Ct. at 2362 n. 34, at 2364.
. The Director of the Office of Workers’ Compensation Programs, United States Department of Labor, is a respondent in this action.
. Ingalls Shipbuilding Corp. v. Morgan, 551 F.2d 61 (1977), in which the Fifth Circuit determined that coverage should be extended to a shipfitter helper apprentice who was killed when a steel plate he was cleaning fell on him, is distinguishable in this manner. The decedent had been working on a component part of a ship to be launched.
. Language from House and Senate Reports assisted our analysis in Maher Terminals, supra, and assists us here in recognizing that Congress did not intend the 1972 amendments to extend coverage indiscriminately to all employees of a maritime enterprise:
The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel . . . Thus, . . purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo [would not be covered]. However, checkers, for example, who are directly involved in loading or unloading functions are covered by the new amendment.
S.Rep.No.92-1125, 92d Cong., 2d Sess. 13 (1972); H.R.Rep.No.92-1441, 92d Cong., 2d Sess., 1972 U.S.Code Cong. & Admin.News p. 4708, quoted in Maher Terminals, supra, 548 F.2d at 477.
Reference
- Full Case Name
- DRAVO CORPORATION and Liberty Mutual Insurance Company v. Gregory Winston BANKS, and Director, Office of Workers' Compensation Programs, United States Department of Labor
- Cited By
- 1 case
- Status
- Published