American Stevedoring Ltd. v. Marinelli

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-4180
• Citation: 248 F.3d 54
• Parties: (2nd Cir. 2001) AMERICAN STEVEDORING LIMITED, Petitioner, v VICTOR MARINELLI, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. DEPT. OF LABOR, Respondents
• Court: U.S. Court of Appeals — Second Circuit

Page 54

248 F.3d 54 (2nd Cir. 2001)

AMERICAN STEVEDORING LIMITED, Petitioner, v VICTOR MARINELLI, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. DEPT. OF LABOR, Respondents.

Docket No. 00-4180

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: March 12, 2001

Decided: April 26, 2001

Appeal from a decision of the Benefits Review Board of the United States Department of Labor affirming a decision of an administrative law judge awarding respondent Victor Marinelli permanent total disability compensation under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq. Finding that Marinelli's shop steward duties were integral and essential to petitioner's stevedoring operation and that petitioner was Marinelli's employer, the Board held that Marinelli is entitled to permanent total disability compensation under the Act.

Affirmed.

[Copyrighted Material Omitted] LAWRENCE P. POSTAL, Seyfarth Shaw, Washington, D.C., for Petitioner.

PHILIP J. ROONEY, Israel, Adler, Ronca & Gucciardo, New York, N.Y., for Respondent Victor Marinelli.

JOSHUA T. GILLELAN II, Senior Attorney, Office of the Solicitor of Labor, Division of Employee Benefits, Washington, D.C., for Respondent Director, OWCP.

Before: SOTOMAYOR and JACOBS, Circuit Judges, and BERTELSMAN, District Judge.^*

SOTOMAYOR, Circuit Judge:

Petitioner American Stevedoring Limited ("ASL") appeals from an order of the Benefits Review Board of the United States Department of Labor (the "Board") affirming the decision of an administrative law judge ("ALJ") awarding respondent Victor Marinelli ("Marinelli") permanent total disability compensation under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or the "Act"), 33 U.S.C. § 901 et seq. ASL argues on appeal that (i) Marinelli is not entitled to benefits because his shop steward duties did not qualify as "maritime employment"; (ii) ASL is not required to pay such benefits because it was not Marinelli's employer; and (iii) Marinelli failed to establish that he was permanently and totally disabled. Finding each of these arguments to be without merit, we affirm the Board's affirmance of the ALJ's award of permanent total disability compensation to Marinelli.

BACKGROUND

Prior to 1986 or 1987, Marinelli was employed by ASL's predecessor as a "safety man," that is, a worker whose duty it is to ensure that conditions on the loading terminal are sufficiently safe for stevedoring work.¹ In 1986 or 1987, Marinelli's employment as a safety man ceased when he was appointed by the International Longshoremen's Association Local 1814 (the "union"), the union representing ASL employees, as its shop steward - a position required by the collective bargaining agreement ("CBA") between ASL and the union. Subsequently, Marinelli was elected to the shop steward position by the union members. Marinelli testified that, as shop steward, he was effectively an arbitrator between ASL's management and the union members. Marinelli had authority under the CBA to enforce work rules specified in the CBA, as well as informal pier rules. Both sides would come to him with complaints. ASL typically complained that the workers were not following the work rules or not working diligently, while the union members generally complained that they were short of men or received insufficient breaks. Sometimes Marinelli sided with management, sometimes with the union members. Marinelli testified that, on occasion, he would order a work stoppage, without the union's permission, if he believed that ASL was requiring union members to work under unsafe conditions.

The CBA required the shop steward to be present on the pier whenever stevedoring work was taking place. In practice, however, loading and unloading took place even when Marinelli was not physically present on the pier, but he had to be available at such times. Marinelli would be paid for every hour stevedoring work was taking place, regardless of whether he was physically present on the pier.

Pursuant to the CBA, ASL paid Marinelli's hourly wages and deducted therefrom amounts for federal and state income tax, social security benefits, and disability benefits. ASL officials testified, however, that they had no control over Marinelli's activities. Marinelli stated that, three or four times a week, he reported to union officials about what was taking place on the pier, but that nobody told him what to do on his job.

On March 16, 1997, after engaging in a dispute with some of the workers, Marinelli experienced chest pain, took several nitroglycerin tablets, and passed out, striking his head as he fell. Marinelli was taken to a hospital where he underwent a cardiac catheterization. Marinelli was discharged on March 18, 1997, and thereafter treated with medication. It is undisputed that Marinelli suffered from pre existing coronary artery disease, had previously undergone a coronary bypass procedure in 1989, and had been suffering from chest pain for three years before the incident occurred. After March 16, 1997, Marinelli also began treatment for psychological symptoms.

Subsequent to the March 16th incident, Marinelli filed a claim for permanent total disability compensation under the LHWCA, contending that stressful conditions at his place of employment aggravated his underlying heart and psychological conditions. Marinelli's filing of this claim brought the Director of the Office of Workers' Compensation Programs (the "Director"), United States Department of Labor ("OWCP") into the case as an interested party. See Ingalls Shipbuilding, Inc. v. Director, OWCP (Yates), 519 U.S. 248, 262-70 (1997).

An initial hearing on Marinelli's LHWCA claim was held on April 23, 1998. In an Interim Decision and Order on Jurisdiction entered June 29, 1998, the ALJ found that an employer employee relationship existed between ASL and Marinelli. The ALJ further found that Marinelli's shop steward duties were an integral and essential part of ASL's stevedoring business, and therefore held that Marinelli was a covered maritime employee under Section 2(3) of the Act, 33 U.S.C. § 902(3).

Further hearings on the merits of Marinelli's claim were held on January 12, 1999 and March 16, 1999. In a Decision and Order entered July 13, 1999, the ALJ found that Marinelli's work stress had aggravated his underlying cardiac condition and caused adverse psychiatric consequences, and that Marinelli was unable to return to his usual employment. On the basis of these findings, the ALJ awarded Marinelli permanent total disability compensation under 33 U.S.C. § 908(a), and medical benefits under 33 U.S.C. § 907.

In a Decision and Order dated August 1, 2000, the Board affirmed both ALJ orders. Marinelli v. Am. Stevedoring Ltd., BRB No. 99-1135, 2000 WL 1133566 (B.R.B. Aug. 1, 2000). ASL timely appealed. We have jurisdiction over this appeal pursuant to 33 U.S.C. § 921(c).

DISCUSSION

Our review of the underlying administrative decisions is of limited scope: "We will only consider whether the [Board] made any errors of law and whether the ALJ's findings of fact, in light of the entire record, are supported by substantial evidence." Sealand Terminals, Inc. v. Gasparic, 7 F.3d 321, 323 (2nd Cir. 1993). Furthermore, we grant deference to the views of the Director with regard to questions of interpretation of the LHWCA. Fleischmann v. Director, OWCP, 137 F.3d 131, 136 (2d Cir. 1998).²

In order to qualify for permanent total disability benefits to be paid by ASL under the LHWCA, Marinelli was required to demonstrate that (i) he was engaged in "maritime employment," 33 U.S.C. § 902(3); (ii) an employer-employee relationship existed between him and ASL, id. §§ 902(2), 902(3), 902(4); (iii) his injury was causally related to his employment, id. § 902(2); and (iv) his injury rendered him permanently and totally unable to perform his job, id. §§ 902(10), 908(a).

I. "Maritime Employment"

Section 2(3) of the Act defines a covered "employee" as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder and ship breaker." 33 U.S.C. § 902(3). An employee is engaged in maritime employment as long as some portion of his job activities constitutes covered employment. See Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 275-76 (1977). Maritime employment is not limited to the occupations specifically enumerated in Section 2(3), but also encompasses any employment that is "an integral or essential part of loading or unloading a vessel." Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 45 (1989).

Implicitly invoking Schwalb's "integral or essential" test, the ALJ concluded that Marinelli's performance of his shop steward duties was "an integral part of and essential to [ASL's] maritime business." The ALJ based this conclusion on findings that Marinelli (i) represented the interests of both ASL and the union members, and (ii) "facilitated the day-to-day operation of [ASL's] business so as to remove interpersonal obstacles which might otherwise obstruct such ongoing operations."

The Board affirmed, finding that the ALJ's conclusion was supported by substantial evidence and consistent with numerous state court cases holding that shop stewards and other union officials are entitled to workers' compensation benefits from employers because "they act in the interest of employers as well as unions, as the negotiation and implementation of collective bargaining agreements prevents unrest and promotes the uninterrupted operation of an enterprise." Marinelli, 2000 WL 1133566, at *4 n.5 (collecting cases).

On appeal, ASL argues that Marinelli's claim fails under Schwalb's "integral or essential" test because (i) "non-union longshoring operations do better without a shop steward," (ii) "ships loaded and unloaded even when [Marinelli] was not present," and (iii) Marinelli's ...