CHESAPEAKE & OHIO R. CO. v. SCHWALB

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Argument of William T. Prince

Chief Justice Rehnquist: We'll hear argument next in No. 87-1979, Chesapeake & Ohio Railway Company against Nancy J. Schwalb, and No. 88-127, Norfolk & Western Railroad Company v. Robert T. Goode.

Mr. Prince, you may proceed whenever you're ready.

Mr. Prince: Thank you.

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the workers who maintain and repair ship-loading equipment at a waterfront situs are engaged in longshoring operations and therefore are covered by the Longshore and Harborworkers' Compensation Act.

The Supreme Court of Virginia says they're not.

The... when the Supreme Court of Virginia was first faced with the identical issue, there were very few federal reported cases that gave any guidance at all, and that was in 1977 and the case was Ralph White against the Norfolk & Western Railway Company.

In this case, the three cases that are now before the Court, the three employees, like Ralph White, were engaged in the maintenance and repair of longshore equipment.

Each brought a... a claim against the railway company under the Federal Employers Liability Act claiming damages caused by employer negligence.

In each of the cases, the railway company gained dismissal on the ground that the employees were engaged in longshoring operations and that their exclusive remedy was under the Longshore Act.

That was the exact situation that prevailed in 1977 in the Ralph White case, and if I may, the Ralph White case is important in this context.

Ralph White was an electrician who worked on the piers in Norfolk at Lambert's Point.

His work was the repair and the maintenance of... of the apparatus... excuse me, the electrical apparatus... that was used to run to coal loading machinery at Lambert's Point.

Not only did Ralph White repair the machinery that kept the operation going, but he actually went on board ships and, on some occasions, he actually worked on scaffolding attached to the piers oh... over the navigable waters.

The Supreme Court of Virginia held in 1977 that Ralph White was not engaged in longshoring operations because he did not manually handle cargo, or he did not actually operate the machinery that kept the... the operation going.

Now, that was in 1977.

By mid-1980, nearly all of the circuit court judges in Virginia who had the same, or nearly the same issue come before them, had stopped following the Supreme Court of Virginia in its Ralph White case and had started following the decisions of this Court in Northeast Terminal v. Caputo and Pfeiffer v. Ford, and especially the opinions of the federal circuit courts of appeal, especially the 4th Circuit, and the Benefits Review Board opinions which were interpreting this Court's opinions in Caputo and Pfeiffer.

The Court in Caputo said that Congress intended expanded coverage, and in Pfeiffer you said that Congress intended a simple, uniform standard of coverage.

By mid-1980, the federal circuits and the Benefits Review Board had worked out, following Caputo and Ford, a... essentially consistent interpretation that was uniform and simple in factual situations like this.

But in 1988, when these three cases reached the Supreme Court of Virginia, the court... the Virginia court... rejected the reasoning of the federal courts and rejected the reasoning of the many decisions of the Benefits Review Board and specifically reapplied its reasoning in the Ralph White case, holding that these three employees were, in effect, janitors and were not involved in longshoring operations.

Let me tell you for a few minutes about what these three employees did.

They were... two were employed by the C&O Railway, which is now CSX Transportation, and one was employed by Norfolk & Western.

Nancy Schwalb and William McGlone worked for the coal loading facility at C&O at Newport News, and they were engaged in cleaning the equipment that was used in the coal loading operation.

The operation at both facilities is the picking up of these coal cars, turning them upside down, dumping the coal into the hoppers, from which they get onto belts and go onto the ship loaders.

Now, the two employees working in Newport News had the job of cleaning the... what... what are known as the trunnion rollers.

These... these are rollers upon which these dumpers move, and in the dumping operation coal unavoidably falls and collects around those trunnion rollers and if that coal is not cleaned away, then the operation will... will come to a stop.

They also were involved in cleaning coal that had come off the belts and were... was accumulating under the belts.

Now the two circuit court Judges... the two Virginia circuit court judges... who heard the jurisdictional evidence both found that the work that Nancy Schwalb and William McGlone were doing was essential to the coal loading operation, and that if it was not done, that operation would come to a halt.

Now, the Supreme Court of Virginia in its decision in this case actually accepts that finding and stated in its opinion that, if the work was not done, the dumpers would malfunction and the conveyer belts would become damaged and the work would be interfered with.

Nevertheless, the Supreme Court, accepting the fact that this work was essential and would cause the... the coal loading to stop if it were not done, said that it was construing this Court's opinion in the Caputo case and that this Court in the Caputo case was saying that if an employee did not actually handle cargo, then he was not engaged in maritime employment or longshoring operations.

Unknown Speaker: We'll resume there at 1:00 o'clock, Mr. Prince.

Mr. Prince, you may continue your argument.

Mr. Prince: Thank you.

Your Honors, I was saying just before the luncheon recess that the Supreme Court of Virginia had acknowledged in its opinion that the coal loading process would come to a stop if the work was not done that Schwalb and McGlone were doing.

And then the Supreme Court of Virginia said that it was construing your opinion in Caputo and said that that opinion held that employees who were not actually handling cargo were not involved in the essential elements of longshoring operations and, therefore, these employers were not covered by the Act.

It is also noteworthy that in the Caputo case, you said that an employee who was not involved in the ongoing process of loading was not covered.

The Virginia Supreme Court specifically stated that it would not adopt an ongoing process test.

The third employee, the one whose case--

Unknown Speaker: This is not the test that you are presenting?

Mr. Prince: --No, Your Honor.

Actually, I think the... what you have said in the Pfeiffer and Ford cases, that an employee who is involved in an integral part of the loading process is covered, also, the term has been used, "essential elements".

So any employee who plays even a small part of an integral part is covered, and these employees are all engaged in the repair and maintenance of equipment which would come to a halt if not done.

Unknown Speaker: An integral part of what, Mr. Prince?

Mr. Prince: An integral part of the loading operation... of the longshoring.

What we are looking at is longshoring operations.

The loading of coal in this instance, or the movement of cargo from land transportation to ship.

Unknown Speaker: This would be so even though, parttime, he swept out the office?

Mr. Prince: Even if, parttime, they swept out the office.

You have said that in your earlier cases, that if an employee is covered for some part of his work, or her work, then that employee is covered for all of their work.

Unknown Speaker: Even though, in this instance, it were limited to cleaning the... the fallen coal?

Where you told us that--

Mr. Prince: If it was limited to cleaning out the fallen coal, because it was a... it was--

Unknown Speaker: --That would be enough to bring them within coverage?

Mr. Prince: --That would be enough, because it was a factual finding that, if that coal was not cleaned out from under the conveyer belts, the conveyer belts would be damaged and would interfere with the loading so it was essential to get that coal cleaned, and therefore, those employees are involved in the longshoring operations.

Unknown Speaker: And this was all they did?

Mr. Prince: No, that was not all they did, Your Honor.

Unknown Speaker: What else did they do?

Mr. Prince: One of the other employees... well, they... one of the employees at the time of injury... and of course the time of injury is not the test, but one of the employees, Mrs. Schwalb, at the time of injury, was cleaning out coal from the trunnion rollers, which was necessary to allow the dumpers to operate.

Unknown Speaker: Sure.

Sure.

But did they have any other duties, other than... other than this integral part of the loading process?

Mr. Prince: They did some amount of cleaning of bathrooms and of offices.

Unknown Speaker: But the injury was... all of them were in the process of performing their loading duties?

Mr. Prince: That... that is correct, Your Honor.

Unknown Speaker: Did they do any repair work on damaged equipment or anything?

Mr. Prince: Not Schwalb and McGlone, but the third employee, Robert Goode, actually worked up on the dumper.

And at the time of his injury--

In fact, the circuit judge who heard the jurisdictional evidence in that case found that the overwhelming amount of his time was... was done in the maintenance of ship-loading equipment.

He was a pier machinist.

Now, at the time of his injury, he was repairing a retarder, which is a piece of equipment up on the dumper that is used to bring the cars to a stop when they get to the position where they are to be dumped, and the repairs that he did in fact brought a stop to the operation.

Repairs had to be done... the repairs could not be done while the coal was being loaded and the work stopped.

Unknown Speaker: Incidentally, did any of the three employees bring a... a Federal Employer Liability Act suit?

Mr. Prince: Your Honor, they all brought one.

That is how this came on.

Each one of them brought Federal Employer Liability Act claims, and the railway company in each case moved to dismiss on the ground that the Court did not have jurisdiction because the exclusive remedy was under the Longshore Act.

Unknown Speaker: Whereas damages, I gather, under the FELA are likely to be greater than the compensation under the Longshore Act?

Mr. Prince: They would most likely be greater.

It... it's the difference between a negligence action and a compensation remedy.

Unknown Speaker: Mr. Prince, the limits of this so-called functional relationship test that you propose aren't entirely clear.

In a sense, all employees at the maritime situs might be said to contribute to the loading process.

Mr. Prince: That is true, Your Honor.

Unknown Speaker: It has... the test you propose has the disadvantage of forcing the courts, in a case-by-case basis, to determine how essential and how integral the work is to the loading process.

Mr. Prince: Your Honor, I don't... I don't think it's going to be a test of how essential.

I think the factual determination is, is it essential, or is it an integral part of the loading?

There comes a point where land transportation ends and everything thereafter is the movement of the cargo toward the ship and onto the ship.

All of that effort... the movement of the coal once land transportation ends... is an integral part.

As... as this Court said in the Ford case, anyone who is involved in a portion of the work is involved in an integral part of it, and in... and in fact, there would be probably no worker who would be involved in all of it, not in... in today's modernization of this equipment.

Everyone is involved only in a part of it.

Unknown Speaker: What about a machinist--

Mr. Prince: So I don't think, Your Honor--

Unknown Speaker: --Mr. Prince, what about a machinist who... who works for the railroad only in downtown Norfolk who... who repairs, among other things, one of these trunnions that's essential for the movement of coal?

Mr. Prince: Under the rulings of the Pfeiffer and Caputo, if he spends part of his time in repairing ship-loading equipment, he would be covered all the time.

Unknown Speaker: Yes, but this is... it would not satisfy the situs requirement.

Mr. Prince: --He wouldn't... oh, I beg your pardon.

Unknown Speaker: I said in downtown.

Mr. Prince: He would not be on the situs.

Right, he would not be on the situs.

He would not meet the situs--

Unknown Speaker: So, you add to your test not just that it be essential, or an integral part of the loading process, but that it be done on the site?

Mr. Prince: --On the situs, and there was no question in this case that all three employees were on... on a statutory situs at the time.

So, yes, they have got to be on the situs, and the employer--

Unknown Speaker: Yes, but that's just on the situs at the time of the injury, isn't it?

Mr. Prince: --At the time of the injury.

Unknown Speaker: So, this man that Justice Scalia talks about worked downtown 364 days out of the year but came down on November 1st and had an accident, he'd be covered?

Mr. Prince: That's a hard question.

Unknown Speaker: That's your position though, is it not?

Mr. Prince: I think there could be, as the... I think it's the 9th Circuit, in one case referred to an employee's presence on the waterfront, or on the situs, as episodic, and I guess there could be an episodic presence in the situs that would exclude that particular worker.

Unknown Speaker: Well... what is episodic, once a week?

Mr. Prince: No... rarely.

Extremely rare.

One of the circuits found--

Unknown Speaker: How about once a month?

Mr. Prince: --That an employee who spent two and a half percent of his time on the situs was covered.

Unknown Speaker: That... that is your position?

If he spends... spends two and a half percent of his time on the situs, he's covered?

Mr. Prince: That would be... yes.

I think... excuse me.

Unknown Speaker: What about a timekeeper working on the situs?

Mr. Prince: If a timekeeper were merely an office worker he would be excluded by statute, but if he were out in the area where the work was being done, if he was involved in... in getting the cargo moved, he would be covered.

The 1984 amendment specifically excluded office workers.

And I might say that there was an amendment offered in 1981 that would exclude workers who were engaged in repairing and maintaining ship-loading equipment and that amendment was dropped before the 1984 amendments were enacted.

Your Honor, if I may, I'd like to reserve the remainder of my time.

Unknown Speaker: Very well, Mr. Prince.

Ms. Desan-Husson?

Am I pronouncing your name correctly?

Argument of Christine A. Desan-Husson

Mr. Desan-Husson: Desan-Husson.

Unknown Speaker: Desan-Husson.

Very well, you may proceed.

Mr. Desan-Husson: Thank you, Mr. Chief Justice, and may it please the Court:

These cases require only that this Court confirm the integral part standard it has already establish and confirm that the standard applies to cover the employees here.

The standard is dictated both by the language and by the objectives of the Longshore Act.

The Department of Labor has consistently adopted this interpretation of the act.

The courts of appeals have uniformly applied the same test.

The result has been reliable compensation for all injuries, no matter their size, received by workers loading cargo on the waterfront.

I would like to review how both the language and the objectives of the Longshore Act direct an integral part standard, but first, to clarify.

The integral part standard is a broad standard based on the types of work that Congress specified to be covered by the Longshore Act.

It is capable of disposing of the majority of status-based disputes that come up under the act.

Under it, a worker is covered if his work is necessary to keep a loading operation going.

Justice O'Connor, you asked about what principles would limit the application of the test.

Foremost, the test... a worker must be doing that is essential to the mechanics of loading.

So, if there is a chef in a cafeteria on a situs, the chef would not be covered under this act.

That might be convenient for the workers, but it's not necessary.

Secondly, just in a pragmatic sense, the 1984 amendments act as an outer boundary.

It is clear... the courts have a clear signal that workers on those categories are too tenuously related to the work of loading to be covered by the act.

As Justice Scalia pointed out though, the... the function of the status provision is to select for a type of work, and some types of work... the logic of the status provision includes workers who are outside the geographical location of the situs test.

So that someone who is mining steel, or mining metal that will be used in the ship-loading equipment, would be covered by the logic of the test, but the fact is that that person is never going to be on the situs.

That is, the situs and the status test work in tandem to select sort of the intersection of two groups of workers who are covered by the act.

And... finally, I would... I would say that the status provision does select most workers on the waterfront, and that is the point of the Longshore Act, is to cover those workers.

Unknown Speaker: What about the problem of the occasional visit to the situs and the injury occurring there?

Mr. Desan-Husson: It would depend on how often the worker was on the situs.

If a worker is regularly sent there once a week or once a month, that worker would be covered by the Longshore Act, if he then goes and does work on the situs that is essential for the loading process.

I think that we wouldn't push a position that someone who is, fortuitously, once a year or once every five years, on the situs, would be covered.

But if it's a regular assignment, so that they regularly do go to the situs, they would be covered.

The language of the status provision indicates in two ways that it was meant to cut broadly and functionally.

Unknown Speaker: What is the language of the situs provision?

Mr. Desan-Husson: The language of the situs provision is at 903(a) and it acts to cover all workers who are injured on navigable waters and then--

Unknown Speaker: So it's very nice of you to say that you wouldn't press that... that argument, but how could you avoid pressing that argument?

Mr. Desan-Husson: --I'm sorry, which?

Unknown Speaker: In light of the fact that all the situs provision says is, if you're injured there.

I mean, it's... it's nice of you to say well, we wouldn't press it if he's just there and happens to be injured there, but that's how it reads, isn't it?

Mr. Desan-Husson: No.

You would have to be injured on the situs and you would have to be performing a... a job that was integral to the loading.

Unknown Speaker: Well, that's right.

But that's what we're talking about.

We're talking about somebody who... who repairs trunnions and once in two years he happens to go there to deliver the trunnion he's repaired and gets injured, and you're saying well, we wouldn't press the applicability of the situs provision.

Well, it's not... it's not up to you to press it.

It seems to me the language of it would say it applies, wouldn't it?

Mr. Desan-Husson: What I meant... the case that I thought you were posing was, somebody who repairs the trunnion rollers in downtown Norfolk or somewhere else, or who mines the metal, if that person fortuitously comes onto a situs provision and to the situs--

Unknown Speaker: And gets injured.

Mr. Desan-Husson: --They would not be covered.

Unknown Speaker: Why not?

Mr. Desan-Husson: But it... it's the work... the work has to be going on, on the situs.

The worker must be doing work that's essential to the loading process on the situs.

I think the language of the status provision supports this.

Did I... did I make myself clear?

Unknown Speaker: No, and I think you're disagreeing with Mr. Prince, if... if I understand you correctly.

I think he would say that even a worker who repairs the trunnions down town, if he comes up and, you know, delivers them once a month and gets injured--

Mr. Desan-Husson: If... if the delivery... I think that that worker would qualify in the sense that he was delivering... his delivery was a regular job on the situs, he would qualify.

Unknown Speaker: --The issue is whether he's an employee within the meaning of the statute, isn't it?

The status test is whether he's an employee.

Mr. Desan-Husson: That's right.

Unknown Speaker: And he's an employee, if he does it... if he does work essential to the loading operation downtown, isn't he?

He has to be injured on the situs, but does the situs have anything to do with whether he's an employee or not?

Mr. Desan-Husson: My understanding of the... of the situs provision is that it... it would select for employees who were working who met the status provision.

Unknown Speaker: Well, I suppose it has to do with whether he's a maritime employee?

That's right.

And then--

Mr. Desan-Husson: Well, that's right.

I mean, he has to work for an employer who is... who--

Unknown Speaker: --Well, work for the railroad.

He's... that's an employer.

The term "employee" means any person engaged in maritime employment, including various things, and the question is whether repairing and maintaining loading equipment is maritime employment, and the answer, according to you, is yes.

Mr. Desan-Husson: --Yes, that's right.

Unknown Speaker: Because it's essential.

It seems to me if you do it in New York it's still maritime employment, and then you have to be... you have to be injured on... on the situs.

Mr. Desan-Husson: I think that--

Unknown Speaker: I mean, what's so horrible about that?

I mean, just... just accept it.

Mr. Desan-Husson: --Well, I... I'm willing to accept that case.

I'm willing to accept that case.

I... I wasn't--

Unknown Speaker: Isn't that the only consistent position you can take?

If you define the term "maritime employment" by the character of the work the person does, and you say the character of work maintaining and repairing equipment is maritime employment, it doesn't matter where he does it, it's maritime employment, and the... the situs requirement merely is a requirement that says the injury must occur on a situs.

It doesn't have anything to do with whether it's maritime employment or not.

Mr. Desan-Husson: --I would accept that... that position.

I think that it... it's not a situation that's Likely to occur very often, and the great majority of people are going to be on the situs.

If I could move to the language of the provision, Congress specified that longshoring was covered, but it didn't stop there.

It added that those engaged in longshoring operations were also covered.

If longshoremen load and they're covered by the word longshoremen,

"then there would be no point to the phrase, longshoring operations. "

That phrase must refer to a larger group, and I would suggest the natural reading is maintenance and repair people.

Unknown Speaker: And that's a natural way you would describe maintenance and repair, too, I suppose.

Mr. Desan-Husson: I would.

I would.

Unknown Speaker: If you wanted to deliberately cover maintenance and repair people, you don't think you'd might mention them?

Mr. Desan-Husson: Well, I think there are a number of... of categories that it would be hard to specify in the act.

The second feature of the language that I think is worth noting is that Congress defined coverage by establish... establishing as a universe of workers that were covered all those that were engaged in maritime employment.

That is, it used a term which, as the Court made clear in Perini, had been given a broad meaning before 1972.

Then, making explicit that the list was not exhaustive, it specified the named categories of workers who were engaged in maritime employment... that is, longshorers, et cetera.

It then repeated the functions of those workers in the situs provision.

Attention to the objectives of the statute makes it even clearer that Congress wrote broadly and functionally when it wrote the status provision.

It wrote functionally because it was responding... it was reforming a system in which injury had depended only on the location... in which recovery had depended only on the location of an injury.

It wrote broadly because it did not want the new line to become as arbitrary as the old line.

It needed a flexible line to make account... make allowance for new technology.

In this case, the loading operation is almost wholly automated, so that if technology reduces manual functions, a line that would... would cover longshorers would have to cover those who are doing maintenance and repair, if it wasn't to be quite arbitrary and only cover the people who flipped the switch as opposed to the people who repaired the switch.

Second, Congress wanted a simple, rational standard that would cover all who were on the waterfront.

It therefore declined to import distinctions like the point of rest that the Court rejected in Pfeiffer and in Northeast Marine Terminal.

A rational coverage of all those engaged in longshoring operations would cover those who were working with the same equipment and were exposed to the same hazards, and those who should... should merit the same compensation whether they are repairing the equipment or operating it.

Unknown Speaker: Thank you, Miss Desan-Husson.

Mr. Wilcox, we'll hear from you now.

Argument of Bruce A. Wilcox

Mr. Wilcox: Mr. Chief Justice, may it please the Court:

We appear before you this afternoon on behalf of Nancy Schwalb, William McGlone and Robert Goode, three railroad workers who were injured while they were on the job.

We do not agree that these workers were engaged in maritime employment.

The issue before the Court is whether these three railroad employees are covered for their work-related injuries by the Federal Employers' Liability Act, which was passed in 1908 to benefit railroad workers, or by the Longshore and Harborworkers' Compensation Act, which was originally enacted in 1927 to provide benefits for longshore and harborworkers not covered by state workers' compensation statutes.

We suggest that a review of the legislative history of the Longshore Act and the amendments to that act in 1972, together with a review of this Court's decisions since the enactment of the 1972 amendments to the Longshore Act, will cause you to decide that these railroad workers should be treated as railroad workers and not as longshore and harborworkers.

Your decision here today will not affect longshore and harborworkers.

It will only apply to a limited number of railroad workers.

Nancy... Nancy Schwalb and William McGlone held jobs as laborers at the Chesapeake & Ohio Railway Company.

They performed housekeeping and janitorial services in offices, in shops, in bathrooms, locker rooms and at other places situated on the railroad's pier and adjacent property in Newport News, Virginia.

Schwalb was hurt in a fall as she was walking along a catwalk.

William McGlone was hurt while clearing away coal beneath a conveyor belt.

Robert Goode is employed by the Norfolk & Western Railway Company as a machinist.

A machinist is railroad language for a mechanic.

He repairs railroad equipment.

On the day he was hurt, he was assigned to inspect and repair if necessary a retarder on the southside dumper at the Lambert Point Yard.

As mentioned earlier, a retarder is a breaking system that stops railroad cars.

Retarders are common and located throughout the railroad system.

The retarder is attached to a larger piece of railroad equipment called a dumper.

Railroad cars are moved onto the dumper, held in place by the retarders, which are the breaking system, and then they are rotated to unload the railroad cars by turning them upside down.

Unknown Speaker: On your approach, then, would any of the railroad's employees engaged in this operation be covered by the Longshoreman's Act?

Mr. Wilcox: Not those that were engaged in these functions here.

Now, they conceivably could be--

Unknown Speaker: That isn't what I asked you.

That isn't what I asked you.

Any others that were moving this coal from the car to the ship.

Were any of them?

Would any of them be covered?

Mr. Wilcox: --Your Honor, it depends on where you draw the line.

We would suggest that these railroad employees were, and especially Bobby Goode, was involved in unloading a railroad car, which is... he could be doing that at any location... or, he was repairing a piece of equipment that unloads a railroad car, and he could be doing that at any location throughout the railroad system where they have retarders.

Unknown Speaker: He unloaded it into a ship, didn't he?

Mr. Wilcox: Well, he unloaded it onto a system of conveyer belts, which we would suggest, and we argued in our brief, that those conveyer belts, once the coal is unloaded onto the belt, they could take the coal to a power plant or a steel mill or any other type of facility that uses a lot of coal.

Unknown Speaker: But they weren't doing it here.

They were taking it to a ship.

Mr. Wilcox: Eventually it got to a ship.

Yes, sir, it did.

Unknown Speaker: It wasn't eventually; it was the next stop.

Right?

Mr. Wilcox: It had to go through a system, sir, where it... the direction of the coal actually changed, and up until that time it's our position that he could have been involved in just merely unloading a railroad car.

Unknown Speaker: Of course, you could say the same thing about the people that were operating the conveyer belt, too.

So those people wouldn't be included, right?

Because the conveyer belt could have been going to a power plant instead of to a ship, right?

Mr. Wilcox: Again, it depends on where the conveyer belt is located and where the--

Unknown Speaker: Well, we know where it was located.

But it could have been going into a power plant, so you could make the same argument.

So all of the employees, not only who repair the conveyer belt, but even those who operated the conveyer belt shouldn't be covered, because it could have been going somewhere else.

Mr. Wilcox: --It goes to the question of what is the situs, what is the location here, which is part of the statute.

Unknown Speaker: Right.

I know what it goes to, but what's your answer about the people who are operating the conveyer belt?

Mr. Wilcox: I would have to maintain the same thing.

It could be going somewhere else, yes, sir.

Unknown Speaker: So that leaves you nobody.

Who... who is covered?

I mean, do you have to be standing on the ship?

Mr. Wilcox: Well, originally, that's what the act said.

You had to be out over the water.

Then it was amended to include other harbor and longshore workers that were on the landward side by the amendments in 1972.

But you do have to focus on what these workers were doing at the time they were injured, and what their occupation is.

Unknown Speaker: Does it just turn on who employed them, or not?

Mr. Wilcox: If it did, we wouldn't be here.

They'd be covered by the Federal Employers Liability Act.

Unknown Speaker: So you're saying none of the railroad employees moving this coal to the ship would be covered by the Longshoreman's Act?

Mr. Wilcox: No, sir.

Once... once it gets into the actual loading process--

Unknown Speaker: Tell me one that would be covered.

Mr. Wilcox: --Well, if for example... and I know there's a... there's a federal case law, the Harmon case.

He was a railroad employee who was working in a funnel system that actually down-loaded the cargo right into the hold of the ship.

Unknown Speaker: Wasn't this movement from... from the railroad car to the ship continuous, when the conveyer belt ran from the car to the ship?

Mr. Wilcox: It did in the sense that it went--

Unknown Speaker: It didn't stop anywhere.

It just went.

Mr. Wilcox: --That's right, but it--

Unknown Speaker: It's sort of like that chute that you just mentioned.

Mr. Wilcox: --Well, if you follow that, if it... the railroad then could make the same argument, Your Honor.

If it took the... from the point a railroad car was loaded at the wine... mines in West Virginia and went all the way, without interruption, and without stopping, and was then loaded onto a ship, the same argument would apply.

Unknown Speaker: Well, I suppose then... suppose the railroad said we don't want to do this with our own employees.

We're going to hire a longshoreman to move this coal.

We'll deliver the cars to the site and the longshoremen run the conveyer, furnish the conveyer belt, run it under the ship.

Mr. Wilcox: Your Honor, my understanding is that, in fact, is what's happened.

Most of this has been contracted out, in that area.

Unknown Speaker: Would they... would they be covered under the Longshoremen's Act?

Mr. Wilcox: Again, you have to focus on what they're doing.

What is their job?

And I +/?

Unknown Speaker: I know.

I've just told you what it was.

They arrive at... the cars arrive at the yard, on the railroad, at the siding, and the longshoremen move this... stevedoring outfit just moves the coal onto the ship, by the same conveyer belts.

Would they be covered?

Mr. Wilcox: --They would be covered from the point that it's actually being loaded onto the ships.

I guess my distinction is... is not as clear as it could be, and it points out the problems of the... where the coverage starts and stops.

Unknown Speaker: Well then, if you have doubts about that, why, I don't know why you don't have the same doubts about the railroad employees.

I just say the railroad company hires a stevedoring company to move this coal from ship... from car to ship, just exactly the way it was being moved here.

Mr. Wilcox: I understand your question, Your Honor, and it depends... for example, in Robert Goode's case you would have to examine what those individuals were working on at the time.

If they are "longshoremen", that would be because they maybe belong to a longshore union or something, but they may be required to work on railroading equipment, and that's the problem we have here today.

The... the... in Goode's case, he was working on railroading equipment.

Now, it's a matter of definition.

Was he working on a piece of equipment that is involved in the essential elements of loading a ship, or is he involved in working on a piece of equipment that is... in... part of the essential elements of unloading a railroad car?

It does become a question of definition, and you have to look and see what... what his actual occupation was.

Unknown Speaker: Mr. Wilcox, do you recognize that most of the federal courts considering these questions have adopted the test that the Solicitor General's Office suggests, rather than the one adopted by the Supreme Court of Virginia?

Mr. Wilcox: That's true to some extent, but I believe that if the Court reviews the cases... for example, in the Dravo case, which is a 3rd Circuit case, it's very similar to the situation for McGlone and Schwalb.

That involved a... a laborer, a person who was involved in clean-up activities similar to what Schwalb and McGlone were doing, and in that case, 3rd Circuit, they have... they have indicated that the Longshore Harborworkers Compensation Act does not apply.

They haven't extended it.

It's not uniform as to where all the circuits stand on this case.

The Virginia Supreme Court in the White decision relied on the Weyerhauser case, which was a 9th Circuit case, which has not been overruled, and that, again, limits the expansion of the longshore coverage.

If we have to examine the legislative intent of the Congress when the act was amended in 1972.

This Court has reviewed that intent, both in the Caputo decision and later in the Perini decision, which was Director v.... Office of Workers Compensation v. Perini.

Unknown Speaker: Well, Perini had language in it rejecting the test adopted by the Virginia Supreme Court, didn't it?

Mr. Wilcox: It may have, but it did review the purposes of expansion, or the amendments, and as Your Honor well recalls, having written the opinion, the purposes were to expand coverage, to extend it to longshoring workers and it recognized the changing nature of the industry.

Because of containerization a lot of the work had moved from the ship and onto the land, and there... but there were three main groups that were interested in amending that Longshore Act, and this was indicated first in the Caputo decision and then later reexamined in the Perini case.

They involved three groups.

The first of the groups were the ship owners, who did not want to be sued on a seaworthiness doctrine by the longshore workers.

The second were the employers of the longshore workers, who had... under a judicially created doctrine had to indemnify the ship owners, and the third group were the workers themselves, who wanted to have an improvement in their benefits.

And the problem here was the benefits under the federal statute were ordinarily superior to the benefits under the state workers' compensation statutes, and one of the purposes for amending the act and expanding the coverage was to permit these longshore and harborworkers to enjoy improved benefits under the federal statute.

Now, in the case we have here, we think it's important to note that all three of these workers are railroad workers.

None of them filed an action to be brought within the coverage of the Longshore and Harborworkers Compensation Act.

This is... in all the other cases this Court has reviewed, it was individuals who filed for their claims under the Longshore Act--

Unknown Speaker: Are you suggesting that its optional?

Mr. Wilcox: --No, I'm not suggesting that it's optional.

Unknown Speaker: Well, why is that relevant, that none of them filed claims?

Mr. Wilcox: Well, because if the purpose for amending the act was to improve their benefits, these workers here, these railroad workers, all... already have a perfectly suitable source of compensation through the Federal Employers Liability Act.

It's not optional.

I mean, they have a method.

For the last 80 years, they've had a way to file for claims when they're hurt on the job, and that's through the FELA.

And we don't suggest that it's optional, but they already have an adequate remedy that's provided to them through the Federal Employers Liability Act.

Unknown Speaker: So, we should disregard the language of the statute and go back and see whether the sponsors, or so to speak, the lobbyists, have this in mind?

Mr. Wilcox: Well, as... as the Court's well aware by the questions here this afternoon, the question of coverage and who it applies to and who it doesn't apply to is... provokes lots of questions, and we would suggest that the intent of the Congress was to expand the coverage to benefit workers.

And it was never intended to expand it to apply to railroad workers because, if one of the reasons to amend the act was to improve benefits, that certainly isn't the case here today, where the railroad--

Unknown Speaker: How about the fellow you spoke about who was actually pouring coal into the hold of the ship and was a rail... railroad worker?

I thought you said that was the case of a railroad worker who would be covered?

Mr. Wilcox: --Yes sir, I did, and if you look at what he's actually doing at the time he's hurt, he's loading a ship, and that's... fits within the definition of the status test.

Unknown Speaker: So all railroad workers aren't excluded, even though any of them could sue under the FELA?

Mr. Wilcox: Yes sir, that's correct, and the Court here this afternoon could make a policy decision that there's already an act sufficient and adequate for railroad workers and rule as... draw an arbitrary bright line as to who the act applies to and who it doesn't apply to.

Unknown Speaker: We... we can make that policy decision?

I thought we were trying to interpret a statute?

Mr. Wilcox: Yes, sir.

But there was a previous decision of this Court that drew such a bright line, and that was in Southern Pacific v. Jensen way back in 1917.

Unknown Speaker: You're not suggesting we repeat that, are you?

Mr. Wilcox: No, I'm not.

[Laughter]

Unknown Speaker: Mr. Wilcox, we're dealing with a statute that feels it necessary to specifically except from the term "employee" under the act, individuals who are, one, employed by suppliers, transporters or vendors; two, are temporarily doing business; and, three, are not engaged in work normally performed by employees of that employer under this chapter, and... and a lot of other specific exceptions, which would be unnecessary if your interpretation of the act were the interpretation that Congress accepted and intended.

For instance, the exception for individuals employed exclusively to perform office, clerical, secretarial, security or data processing work.

If your interpretation were accepted, you wouldn't need that exception.

It'd... it'd be a meaningless, senseless exception.

Mr. Wilcox: Although we didn't... sir, we didn't mention in our brief, but if you look at the specific language in the act in 33 U.S.C.A. Section 902(3), which contains what an employee's--

Unknown Speaker: What page?

Are you reading from a page of the record?

Mr. Wilcox: --I'm... from the joint appendix on page 47.

Unknown Speaker: What page?

Mr. Wilcox: 47, Your Honor.

Unknown Speaker: Forty-seven.

Mr. Wilcox: It just... it occurred to me, we didn't mention it in our brief, but there are specific exclusions from the coverage and in Section 902(3)(D), individuals who are one, employed... are employed by suppliers, transporters or vendors... now, is a railroad a transporter?

They may be specifically excluded by the language of the act.

Unknown Speaker: Well, it has to meet the other two... the other requirements.

Mr. Wilcox: Yes, sir.

Yes, sir.

Unknown Speaker: Two, are temporarily doing business on the premises, and three, are not engaged in work normally performed by employees of that employer under this chapter, and here, this is work normally performed by employees of that employer.

Mr. Wilcox: There... there's a further requirement that they have to be subject to the coverage of some state workers' compensation law.

But the point is that the... if the intention of Congress was to provide benefits or to exclude others where it would improve their benefits when they amended the act, it certainly doesn't accomplish that purpose here, today.

Unknown Speaker: Sometimes the laws that Congress writes don't completely do what you hope they'll do, but the law is there.

I mean--

--Mr. Wilcox?

Mr. Wilcox: Yes, sir?

Unknown Speaker: If there's coverage under the Longshore Act, that's the only remedy, isn't it?

Mr. Wilcox: Yes, sir.

It does have language that says--

Unknown Speaker: So your clients could not have causes of action both under the FELA and the Longshore Act.

Mr. Wilcox: --No, they cannot.

The Longshore Act contains language that it is the exclusive remedy if they are covered by the act.

We just simply argue that they're not covered by the act.

Unknown Speaker: Mr. Wilcox, do you think we owe any deference to the interpretation of the act by the Department of Labor that's charged with administering it?

Mr. Wilcox: Well, certainly we ask the Court to consider what they've put forward here this afternoon, but we essentially argue that they're wrong, that there was never an intention to cover these types of employees, and if one of the goals is to clarify where coverage starts and where coverage ends, it's... with the language of the statute as we have it, it's not going to... it's always going to be taken on a case-by-case basis.

You can't... you don't fall within it necessarily or not.

You have to examine what the individual worker was doing when they got hurt.

In the Pfeiffer case, decided in 1969, the Court here again reviewed the legislative history of this area of the law and noted that the seven... the 1972 amendments to the Longshore Act added a second test.

Well, that's the status test.

In that opinion, it was noted that an earlier decision, the Caputo decision, had specifically rejected a point of rest theory.

We suggest that what the railroad is arguing here today is asking the Court to readopt a point of rest theory.

The point of rest theory was based on cargo being off-loaded from a ship.

It came to rest at some point where it was no longer moving on the shore, and that was where the longshoring activity stopped and some other activity began.

In the Caputo decision, that theory was specifically rejected.

We suggest that the railroad here today is asking the Court to readopt a similar type of theory, only in the converse.

That is, the coal is mined in the mountains and is brought by the railroad car down... cars down to the railroad yard in Norfolk, where the railroad cars stop, and then at some point the cars are then assembled for moving onto the ships.

Now, we would suggest that that... if that is where the longshoring activity starts, that would be readopting a theory that has been specifically been rejected here.

Again, you have to focus on what these employees were doing at the time and what their jobs were... at the time they were hurt, and what their jobs were.

They were railroad employees.

They did not handle cargo.

They did not unload ships.

They did not load ships.

In fact, for Schwalb and McGlone, they were specifically prohibited from handling the cargo and placing it back on the conveyer belts.

It's also the... in Mr. McGlone's case, it's particular... particularly important because he was injured in a place where... the same place where he was injured in this case a year before.

He suffered an injury on the job, working as a laborer in the same location, and the railroad adjusted that case under the FELA.

He made a claim under the FELA and it was settled.

It's part of the record here.

A year later, in 1983, he suffered another injury doing the same job in the same location, working the same area, with the same duties, and now the railroad denies his FELA claim and asserts that he's not covered by that, and we would suggest that nothing has changed.

What has changed?

The act was amended in 1972.

The... this Court decided the Caputo case in 1977, the four... Pfeiffer case in 1979, and here, McGlone gets hurt in 1982 and his case is settled under FELA.

A year later, he gets hurt doing the same sort of thing and the claim is denied, based on jurisdictional coverage.

The only difference, the only distinction of these two situations is, in the second case he suffered a very serious injury and his arm has been permanently disabled and disfigured.

He's permanently disabled from returning the railroad work, and the only difference is the severity of his injury.

Now, we suggest that what the railroad has done is made an administrative decision that it's cheaper to handle the case, or adjust the case, through the Longshore Act, rather than through the FELA.

And, of course, this would be a way of handling the case we again would state the Congress never intended the... to apply to these type of workers.

We would further assert that if what the goal of the railroad would be would be to have a long... a Worker's Compensation Act for railroad employees--

Unknown Speaker: Mr. Wilcox, I thought you gave up that argument?

I mean, you keep saying it, but you acknowledged in response to Justice Stevens that you cannot argue that no railroad workers were covered.

Didn't you answer that in response to Justice...?

Mr. Wilcox: --Yes, sir, I did.

Unknown Speaker: So then, you're not saying that Congress did not intend railroad workers to be covered.

It clearly did.

We're just arguing over what railroad workers will be covered.

Isn't that right?

Mr. Wilcox: Well, Your Honor, would... the... and... I... the point is that it's an expansion of a workers comp statute, and traditionally there has been never a workers comp statute for railroad workers and if that's what's sought here, we suggest that should be handled legislatively rather than expanded judicially.

We urge that the Court remember what job Goode was performing when he was hurt.

He was the mechanic.

He was repairing the railroad equipment.

He was repairing a retarder, which is part of the braking system.

He was not loading a ship; he was not unloading a ship.

He was working on a piece of railroad equipment.

This issue of what constitutes maritime employment was most recently before this Court in Herb's Welding v. Gray in 1985.

Gray was a welder who worked on an off-shore drilling platform off the Louisiana coast.

When he was hurt doing a welding job, be filed a claim for benefits under the Longshore Act.

This Court held that he was not entitled to benefits because he was not engaged in maritime employment.

The opinion reviewed both the situs and the status requirements for coverage under the act and concluded that Congress' purpose when the Longshore Act was amended was to cover those workers on a covered situs who were involved in the essential elements of the loading or unloading or construction of vessels.

The Court held that Gray... Gray's welding was far removed from such traditional longshoring activities and it was, therefore, not covered.

Reviewing the expansion of the definition of the situs test and the addition in the amended act of the status test, the Court recognized the intended limitations of coverage, and it stated,

"Congress did not seek to cover all those who breathe salt air. "

There is a limit to the coverage.

The Pfeiffer case stated that the maritime employment requirement is an occupational test that focuses on loading and unloading.

The amendments were not meant to cover employees 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.

We urge the Court here to follow these precedents.

None of these railroad workers were engaged in essential elements of loading or unloading a vessel.

None of them handled the cargo.

They were performing traditional railroad functions and were not engaged in maritime employment.

Thank you.

Unknown Speaker: Thank you, Mr. Wilcox.

Mr. Prince, you have one minute remaining.

Rebuttal of William T. Prince

Mr. Prince: I would like to respond to Justice Stevens as to why not... Congress may not have excluded people who repair and maintain equipment.

In the Pfeiffer case, the worker Ford, was a warehouseman and the worker Bryant was a cotton header.

Both of those men were involved in intermediate steps of loading and unloading.

They were not the final step or the first step, and they were not excluded by statute, but the Court found that they were... that they were not covered or excluded by statute, no mention, and the Court found that they were covered, and this Court on the question of--

Unknown Speaker: But the difference, I suppose, is they were engaged in work that one could say was part of the loading or unloading operation, as opposed to people that--

Mr. Prince: --This Court said they were involved in intermediate steps.

Unknown Speaker: --In the loading operation.

Mr. Prince: In the loading or unloading operation.

Unknown Speaker: But I... I'm not suggesting it's necessarily right, but one could... could draw a distinction between that kind of work and merely repairing or maintaining equipment.

Mr. Prince: The... all the circuits have held that.

Unknown Speaker: I know that.

You... you're absolutely right.

Chief Justice Rehnquist: Thank you, Mr. Prince.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinions of the Court in two cases will be announced by Justice White.

Argument of Justice White

Mr. White: The first opinion is issued in two companion cases, Chesapeake and Ohio Railway Company against Schwalb, and Northfork and Western Railway Company against Goode.

The judgments of the Supreme Court of Virginia in these cases are reversed for the reasons stated in an opinion on file with the Clerk.

Justice Blackmun while joining the opinion has filed a concurring opinion in which he is joined by Justices Marshall and O’Connor.

Justice Stevens concurs in the judgment and has filed an opinion to that effect.