Graziano v. General Dynamics Corp.

663 F.2d 340, 1982 A.M.C. 1680

• Court: Court of Appeals for the First Circuit
• Decided: November 2, 1981
• Docket: No. 81-1007
• Status: Published

Opinions

BOWNES, Circuit Judge.

This appeal involves the combined claims of Charles Graziano, deceased, for workmen’s compensation benefits and Mary Graziano, his widow, for death benefits under the Longshoremen’s and Harbor Workers’ Compensation Act (Act). 33 U.S.C. § 901 et seq. Mary Graziano appeals from the Decision and Order of the Benefits Review Board of the Department of Labor (Board) reversing the unpublished Decision and Order of the Administrative Law Judge (AU) who awarded the claimants benefits on the basis that the decedent’s occupation constituted “maritime employment” within the meaning of § 2(3) of the Act, 33 U.S.C. § 902(3). It having been stipulated between the parties that the decedent met the jurisdictional situs requirement of the Act, 33 U.S.C. § 903(a), the only issue for review is whether the decedent meets the status requirement of 33 U.S.C. § 902(3), which provides:

The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

The decedent, Charles Graziano, was employed from June 3, 1964, to January 30, 1974, as a maintenance-mason at General Dynamics, a corporation engaged in the building and repairing of ships. As one of only two men classified in the Maintenance Department as a mason-laborer, Graziano’s duties primarily involved the repair of masonry in shipyard buildings, but also included digging ditches, breaking up concrete with a jackhammer, laying cement, grouting, removing asbestos from pipes, repairing boilers and manholes, and cleaning acid tanks. This work was conducted throughout the shipyard', including the steel mill, turret, metal, and pipe shops, and warehouses, areas which exposed the decedent to high levels of dust and noxious fumes.

In 1972, while Graziano was hospitalized for bladder, prostate, and kidney infections, a pulmonary disease was diagnosed and linked to the poor air conditions of his employment. After his release from the hospital, Graziano returned to work on December 18, 1972. Despite the lighter workload given to him, his condition continued to deteriorate, and on January 30, 1974, he was forced to leave his job permanently. After two more hospitalizations, Graziano died in the hospital on February 12, 1976. The cause of death was given as “pneumonia” due to “chronic obstructive lung disease” of some years’ duration. ALJ Decision and Order at 4. During his lifetime, Graziano filed for compensation for permanent total disability and upon his death his widow filed for death benefits.

The decision of the ALJ, finding Graziano to be an “employee” within the meaning of 33 U.S.C. § 902(3), was reversed on appeal by the Benefits Review Board. The Board concluded that the overall duties of Graziano were not essential to the shipbuilding operations of General Dynamics, although his “work in cleaning out the acid tanks and maintaining the boilers in the steel mill arguably might constitute repair of shipbuilding equipment,” meriting coverage under the Act. BRB Decision and Order at 4 n.1.

“Our review of the Board’s decision is limited to ‘errors of law, including the question of whether the Board adhered to the substantial evidence standard in its review of factual findings’ by the ALJ.” General Dynamics Corp. v. Director, Office of Workers’ Compensation Programs, 585 F.2d 1168, 1170 (1st Cir. 1978), quoting Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (1st Cir. 1978).

The courts of appeals have wrestled with the jurisdictional status requirement since its inception as part of the 1972 Amendments to the Act.¹ “The question is made difficult by the failure of Congress to define the relevant terms — ‘maritime employment,’ ‘longshoremen,’ ‘longshoring operations’ — in either the text of the Act or its legislative history.” Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 265, 97 S.Ct. 2348, 2358, 53 L.Ed.2d 320 (1977) (footnotes omitted).² The language of the 1972 Amendments, however, is broad and suggests an expansive view of coverage. “The Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.” Id. at 268, 97 S.Ct. at 2359, quoting Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 92, 98 L.Ed. 5 (1953). Appellate courts have stressed the wide scope of coverage which the 1972 Amendments afford. See, e. g., Warren Bros. v. Nelson, 635 F.2d 552, 556 (6th Cir. 1980); Boudloche v. Howard Trucking Co., Inc., 632 F.2d 1346, 1347 (5th Cir. 1980), cert. denied, 452 U.S. 915, 101 S.Ct. 3049, 69 L.Ed.2d 418 (1981); Trotti & Thompson v. Crawford, 631 F.2d 1214, 1220-21 & n.5 (5th Cir. 1980); Price v. Norfolk & Western Ry. Co., 618 F.2d 1059, 1061 (4th Cir. 1980); Newport News Shipbuilding & Dry Dock 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) ; Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 178 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 190 (1977); Bradshaw v. McCarthy, 3 BRBS 195 (1976), petition for review denied, 547 F.2d 1161 (3d Cir. 1977). This court, as well, has struggled to interpret the phrase “maritime employment” in a. way that facilitates predictable enforcement. See Prolerized New England Co. v. Benefits Review Board, 637 F.2d 30, 35-38 (1st Cir. 1980), cert. denied, 452 U.S. 938, 101 S.Ct. 3080, 69 L.Ed.2d 952 (1981).

The Board’s decision in the case before us is contrary to the expansive approach which it had itself adopted. Indeed, its holding is inconsistent with a recent ruling, clearly germane to this case, in which it determined that a sheet metal worker who repaired and maintained shipyard buildings was covered by the Act. Sills v. Newport News Shipbuilding & Dry Dock Co., 7 BRBS 976 (1978), aff’d mem. sub nom. Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 591 F.2d 1340 (4th Cir. 1979). Realizing that the ruling in Sills would dictate a different result in Graziano, the Board chose simply to discard its earlier holding without explanation and in a footnote stated: “To the extent that Sills is inconsistent with the law as announced in the instant case, we decline to follow it.” BRB Decision and Order at 5 n.2. Price v. Norfolk and Western Ry. Co., 618 F.2d 1059, exemplifies the liberal trend in construing the Act, and we find its reasoning applicable to the case at hand. In Price, the claimant was injured while painting, as part of routine maintenance, a support tower for a gallery belt system used in loading and unloading grain. The support tower itself was not a part of the gallery belt system. Citing Newport News Shipbuilding & Dry Dock Co. v. Graham, 573 F.2d 167, where a claimant was awarded compensation benefits for injuries sustained when he bumped against a machine he was oiling, and Bradshaw v. McCarthy, 3 BRBS 195, where a waterfront mechanic was granted benefits for a back injury received while repairing a forklift, the Price court held:

We can discern no significant distinction between the repair of machinery essential to the movement of 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 building ships, as was the claimant in Graham, and painting a structure used in loading and unloading ships.

Price at 1061.

The maintenance of the structures housing shipyard machinery and in which shipbuilding operations are carried on is no less essential to shipbuilding than is the repair of the machinery itself. Just as the maintenance of the sandmill machine in Graham and the forklift in Bradshaw was necessary to accomplish the loading and unloading of ships, Graziano’s maintenance and repair of shipyard facilities was essential to the building and repairing of ships. As in Price, 618 F.2d at 1062 n.4, the shipbuilding process of General Dynamics would not have come to an immediate halt if Graziano’s duties were not successfully discharged, but the failure to perform routine maintenance would have led eventually to a stoppage or curtailment of shipbuilding and repairs. Therefore, on the basis of Graziano’s masonry duties alone, we hold that coverage under the Act is mandated.

In reaching this result, we have considered appellee’s claim that Graziano’s duties parallel the unskilled support services denied coverage in Dravo Corp. v. Banks, 567 F.2d 593 (3d Cir. 1977). In Dravo, a maintenance-laborer who performed such unskilled jobs as cleaning up debris was excluded from coverage because his duties had “no traditional maritime characteristics, but rather [were] typical of the support services performed in any production entity, maritime or not.” Id. at 595. We agree that those “support services equally suited to land-based enterprises, such as office clerical work, do not qualify as maritime employment.” Prolerized New England Co. v. Benefits Review Board, 637 F.2d at 37; see also Maher Terminals, Inc. v. Farrell, 548 F.2d 476, 477 (3d Cir. 1977). But unlike the duties in Dravo or the clerical employment in Maher, Graziano’s work was a necessary link in the chain of work that resulted in ships being built and repaired. We think “he falls within the broad concept of maritime employment,” Prolerized New England Co. v. Benefits Review Board, 637 F.2d at 37-38, which the Act covers.

In addition to finding Graziano’s overall masonry duties insufficient for status coverage under the Act, the Board specifically found Graziano’s maintenance of the shipyard’s acid tanks and steel mill boilers to be inadequate to confer coverage because of the amount of time in which Graziano was engaged in performing these services. The Board acknowledged that such work might “arguably” constitute maritime employment as repair of shipyard equipment, but refused to so hold because

there [was] no evidence in the record that claimant spent a substantial portion of his time in these activities. In Boudloche v. Howard Trucking Co., Inc., 11 BRBS 687, BRB No. 78-383 (1979), the Board held that a claimant’s maritime-related duties must constitute a substantial portion of his overall employment in order for him to qualify as a maritime employee.

The Board’s opinion in Boudloche is no longer valid precedent. The Fifth Circuit reversed the Board, Boudloche v. Howard Trucking Co., Inc., 632 F.2d 1346, determining that its decision was at odds with two recent Supreme Court rulings, Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320, and P. C. Pfeiffer Co., Inc., v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979). Caputo defined longshoremen eligible for coverage as “persons whose employment is such that they spend 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.” Caputo, supra, 432 U.S. at 273, 97 S.Ct. at 2362. Two years later, Ford reinforced the same concept: “A worker responsible for some portion of that [longshoring] activity is as much an integral part of the process of loading and unloading a ship as a person who participates in the entire process.” Ford, supra, 444 U.S. at 82-83, 100 S.Ct. at 337-38. In rejecting the Benefit Review Board’s analysis, the Fifth Circuit reasoned that “[b]y substituting its ‘substantial portion’ language for the Court’s ‘some’ in the coverage definition, the Board has departed from the letter and spirit of the High Court’s rule. This, of course, it cannot do.” Boudloche v. Howard Trucking Co., Inc., 632 F.2d at 1348. Although only 2.5 to 5 percent of Boudloche’s overall employment was maritime in character, the Fifth Circuit extended coverage because “he was directed to regularly perform some portion of what was indisputably longshoring work.” Id. Similarly, Graziano occupies a status covered by the Act because a regular portion of his overall employment entailed cleaning out acid tanks and steel mill boilers, work which is indisputably maintenance of shipbuilding equipment.

Our finding of covered employment is reinforced by the principle that “doubtful questions should be resolved in favor of the injured employee in order to place the burden of possible error on the employer who is better able to avoid the error and avoid the loss.” Prolerized New England Co. v. Benefit Review Board, 637 F.2d at 38.

Reversed.

1 . The 1972 Amendments were designed to expand the preexisting “navigable waters of the United States” situs requirement, 33 U.S.C. § 903(a) (1927), to include employes engaged in maritime employment on “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) (1972). At the same time, Congress imposed a “status” requirement on workers, limiting eligibility to employees whose employment was of a maritime nature. See, supra, at pp. 340-341. The 1972 Amendments thus transformed what had been historically only a “situs” test of eligibility into a two-pronged test involving both “situs” and “status.”

2 . The definition of “employee” makes clear that the category of persons engaged in maritime employment includes more than longshoremen and persons engaged in longshoring operations. The subcategories “ship repairman” and “shipbuilder” are most closely analogous to Graziano’s duties of employment.