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                                    BRB No. 02-0694

MELVIN  SIDWELL                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v                                  )
                                        )
VIRGINIA  INTERNATIONAL                 )  DATE ISSUED:   06/30/2003
        2003
TERMINALS                               )
                                        )
             Self-Insured               )
             Employer-Respondent        )  DECISION and ORDER

        Appeal of the Decision and Order of Fletcher E. Campbell, Jr.,
        Administrative Law Judge, United States Department of Labor.

        Gregory E. Camden (Montagna Breit Klein Camden), Norfolk, Virginia, for
        claimant.

        R. John Barrett (Vandeventer Black, L.L.P.), Norfolk, Virginia, for
        self-insured employer.

        Before:  DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER,
        Administrative Appeals Judge.

        PER CURIAM:
        Claimant appeals the Decision and Order of Administrative Law Judge Fletcher
E. Campbell, Jr., denying benefits on a claim filed pursuant to the provisions of
the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq.
(the Act).  We must affirm the findings of fact and conclusions of law of the administrative law judge if they are rational,
supported by substantial evidence, and in accordance with law.  O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).  
        At the time of the formal hearing on March 1, 2002, claimant had been employed by International
Longshoremen's Association Local 1970 (ILA Local 1970) on a full-time basis as its president and business agent
for approximately five years.[1]   Prior to his employment for ILA Local 1970, claimant worked as a
container repair mechanic for Virginia International Terminals (VIT).[2]   Claimant filed a claim against VIT for benefits under the Act for an
occupational hearing loss after audiometric testing was performed on February 20, 2000.  The parties
stipulated that claimant has a noise-induced hearing loss on the basis of a subsequent audiogram performed on
May 11, 2000, demonstrating a 2.8 percent binaural hearing loss.  The parties also stipulated that VIT was
claimant's last maritime employer before he became full-time president of ILA Local 1970.  At the hearing,
VIT disputed that it is the responsible employer, asserting that claimant was exposed to injurious noise while
working as a maritime employee for ILA Local 1970[3]  and that, therefore, ILA Local 1970 is the employer responsible for
benefits for claimant's hearing loss.
        In his Decision and Order, the administrative law judge found that ILA Local 1970 is claimant's last
maritime employer, having determined that claimant's position as local president qualifies as maritime
employment.  Next, the administrative law judge determined that employer adduced sufficient evidence that
claimant was exposed to injurious noise while working as president of ILA Local 1970.  On the basis of his
conclusion that ILA Local 1970 was claimant's last maritime employer where he was exposed to injurious
stimuli, the administrative law judge denied claimant's claim against VIT.  
        On appeal, claimant contends that the administrative law judge erred in denying his claim against VIT. 
Specifically, claimant contends first that the administrative law judge erroneously found that claimant' work
as a union president is maritime employment under the Act. 33 U.S.C. §902(3). Claimant also argues
that the administrative law judge erred in finding that employer met its burden of establishing that claimant
was exposed to injurious noise while performing his duties as union president.  Employer responds, urging
affirmance of the administrative law judge's Decision and Order.
        The administrative law judge in the instant case correctly recognized that the responsible employer in a
hearing loss case is the last employer covered under the Act to expose the claimant to injurious noise prior to
the audiogram found to be determinative of claimant's hearing loss. See Avondale Industries, Inc. v.
Director, OWCP [Cuevas], 977 F.2d 186, 26 BRBS 111(CRT) (5th Cir. 1992); Port of Portland v.
Director, OWCP, 932 F.2d 836, 24 BRBS 137(CRT) (9th Cir. 1991); Everson v. Stevedoring Services
of America, 33 BRBS 149 (1999); Zeringue v. McDermott,  Inc., 32 BRBS 275 (1998). See
also Newport News Shipbuilding & Dry Dock Co. v. Stilley, 243 F.3d 179, 35 BRBS 12(CRT) (4th Cir.
2001); Norfolk Shipbuilding & Drydock Corp. v. Faulk, 228 F.3d 378, 34 BRBS 71(CRT) (4th Cir.
2000), cert. denied, 531 U.S. 1112 (2001); Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d
Cir.), cert. denied, 350 U.S. 913 (1955). The employer who is claimed against bears the burden of
establishing that it is not the responsible employer.  See Faulk, 228 F.3d 378, 34 BRBS 71(CRT);
Cuevas, 977 F.2d 186, 26 BRBS 111(CRT); General Ship Service v. Director, OWCP
[Barnes], 938 F.2d 960, 25 BRBS 22(CRT) (9th Cir. 1991); Everson, 33 BRBS 149;
Zeringue, 32 BRBS 275.  In order to establish that it is not the responsible employer, the employer
against whom the claim is filed must establish either that the employee's exposure with employer did not have
the potential to cause his hearing loss or that the employee was exposed to injurious noise while working for a
subsequent employer in employment covered under the Act. See Faulk, 228 F.3d 378, 34 BRBS
71(CRT); Bath Iron Works Corp. v. Brown, 194 F.3d 1, 33 BRBS 162(CRT) (1st Cir. 1999);
Everson, 33 BRBS 149; Zeringue, 32 BRBS 275.
        In addressing this issue, the administrative law judge in the instant case initially stated that, as claimant
worked in maritime employment at a covered situs for VIT, VIT would be liable for any benefits awarded to
claimant unless VIT could shift liability to claimant's subsequent employer, ILA Local 1970.  The
administrative law judge thereafter concluded that VIT met its burden of shifting liability to a subsequent
covered employer, having determined that claimant's work for ILA Local 1970 constituted maritime
employment and that claimant was exposed to injurious noise in the course of that employment.  We must first
consider claimant's contention that the administrative law judge erred in determining that claimant's work as
ILA Local 1970 president qualifies as maritime employment under Section 2(3) of the Act, 33 U.S.C.
§902(3).[4] 
        Section 2(3) defines an "employee" for purposes of coverage under the Act 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, 275-276, 6
BRBS 150, 166 (1977).  While maritime employment is not limited to the occupations specifically enumerated
in Section 2(3), claimant's employment must bear an integral relationship to the loading, unloading, building
or repairing of a vessel.  See generally Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23
BRBS 96 (CRT)(1989).  In Schwalb, the United States Supreme Court held that employees who are
injured while maintaining or repairing equipment essential to the loading or unloading process are covered
under the Act, as their work is an integral part of and essential to those overall processes. Id.  The
United States Court of Appeals for the Fourth Circuit, in whose jurisdiction this case arises, has held that in
determining whether the employee is engaged in maritime employment, the inquiry is "whether the
employee's assigned job requires his spending some of his time in indisputably longshoring
operations."  Shives v. CSX Transportation, Inc., 151 F.3d 164, 169, 32 BRBS 125, 129(CRT) (4th Cir.
1998), cert. denied, 119 S.Ct. 547 (1998).  Rejecting the notion that "maritime employment is
determined by some defined percentage of an employee's work," the Fourth Circuit in Shives
acknowledged that coverage is not extended to those employees whose maritime activities were merely
"momentary" or  "episodic." Id. The court in Shives determined that where the employee's
maritime work was an assigned portion of his duties necessary to the efficient functioning of the terminal, this
maritime work was neither "momentary" or "episodic." Id.; see also Boudloche v. Howard Trucking
Co., 632 F.2d 1346, 12 BRBS 732 (5th Cir. 1980), cert. denied, 452 U.S. 915 (1981).  The United
States Court of Appeals for the First Circuit has held that to be considered "episodic," work must be
discretionary or extraordinary as opposed to a regular portion of the duties claimant could be assigned.
Levins v. Benefits Review Board, 724 F.2d 4, 8, 16 BRBS 24, 33(CRT) (1st Cir. 1984); see also
Maher Terminals, Inc. v. Director, OWCP [Riggio], 330 F.3d 162 (3d Cir. 2003), aff'g  35 BRBS
104 (2001); Zeringue, 32 BRBS at 277.
        In the instant case, the administrative law judge found that claimant's job as ILA Local 1970 president
involves the negotiation of the collective bargaining agreement, the handling of job disputes, grievances, and
medical claims, and attendance at funerals of members and retirees. See Decision and Order at 3;  Tr.
at 24;  EX 5 at 8-9.  The administrative law judge stated that claimant estimated that he worked 60 to 75 hours
per week as union president and that he spent an hour or less per week at the terminals. See  Decision
and Order at 3-4; Tr. at 24; EX 5 at 7.  The administrative law judge further found that claimant is called to the
terminals by both employers and union members to handle labor problems regarding pay, productivity and
overtime rotations, and also to check on working conditions. See Decision and Order at 4;  Tr. at 24-25, 43.  In addition, the administrative law judge found that, in the course of his work as ILA Local 1970
president, claimant serves on between 15 and 18 joint union-management committees related to the operation
of the port and to longshoring work.  Among the functions of these committees are to increase productivity in
the port, to ensure the workers' safety, and to deal with work jurisdiction issues. See Decision and
Order at 4; Tr. at 25-26, 39-41, 44-50; EX 5 at 9.  The administrative law judge found that claimant's activities
on behalf of the members of his union have a significant impact on both the safety and productivity of the
union members whose work is essential to the loading and unloading process.  Decision and Order at 9. 
Moreover, the administrative law judge rejected claimant's contention that his maritime duties were merely
episodic.  Lastly, in finding that claimant's work as ILA Local 1970 qualifies as maritime employment
pursuant to Section 2(3), the administrative law judge found persuasive the conclusions by the administrative
law judge, the Board, and the United States Court of Appeals for the Second Circuit that a union shop steward
employed by a stevedoring company had status as a maritime employee in American Stevedoring, Ltd. v.
Marinelli, 248 F.3d 54, 35 BRBS 41(CRT) (2 d Cir. 2001), aff'g  34 BRBS 112 (2000).
        We agree with the administrative law judge that the decision in Marinelli supports a finding of
coverage for claimant's work as ILA Local 1970 president in the case at bar.  The administrative law judge in
Marinelli found that the claimant's job as union shop steward was integral to the employer's
stevedoring business, and thus that he was a covered employee.  In Marinelli, the administrative law
judge found that the claimant facilitated the day-to-day loading and unloading process by removing
interpersonal obstacles that might obstruct such operations.  The administrative law judge found that the
claimant "sided" with employer at times, and not only with the employees, and also directed employees to
return to work when stoppages were threatened.  The Board affirmed the administrative law judge's
conclusion that the claimant's functions as shop steward were integral to the loading and unloading process
pursuant to the standard for coverage enunciated by the Supreme Court in Schwalb,  493 U.S. 40, 23
BRBS 96(CRT). Marinelli, 34 BRBS 112.  The Second Circuit affirmed the administrative law
judge's finding of coverage, rejecting the employer's arguments that the claimant's work did not meet the
Schwalb "integral or essential test."  First, in rejecting the employer's contention that the claimant
was not covered because non-union shops perform better than union shops, the court held that the inquiry was
whether the claimant was integral to this employer's business of loading and unloading, and not whether his
duties were essential to stevedoring operations in general.  Second, the court rejected the argument that the
employer's ships were loaded and unloaded even when the claimant was not present, holding that pursuant to
Schwalb, it is irrelevant that the claimant's contribution to the loading process was not always needed. 
Third, the court rejected the employer's argument that the claimant's job as shop steward was not particular to
the stevedoring industry, stating that it makes no difference that the kind of work performed by the claimant
might have been performed by a shop steward in another industry. Marinelli, 248 F.3d at 59-60, 35
BRBS at 44-45(CRT).
        Similar to Marinelli, the administrative law judge's finding of coverage here rests on a
determination that claimant's job as union president has a significant impact on the safety and productivity of
the workers who are essential to the loading and unloading process.  Decision and Order at 9.  This finding is
supported by claimant's credited testimony that his work involves negotiating the collective bargaining
agreement and handling labor problems and grievances regarding pay, productivity, overtime rotations and
working conditions, as well as membership on numerous joint labor-management committees whose mission
entails increasing productivity in the port, ensuring the workers' safety and dealing with work jurisdiction
issues.  Decision and Order at 3-4; Tr. at 24-25, 39-41, 44-50; EX 5 at 7-9.  This testimony supports the
administrative law judge's conclusion  that claimant's  functions as ILA  local 1970 president  are integral to 
the loading and unloading process, consistent with the decisions in Schwalb and Marinelli.[5] 
        We also reject claimant's argument that the administrative law judge erred in rejecting his argument that
claimant's maritime duties as president of the local were too episodic to establish maritime employment. 
Claimant's own testimony establishes that he was called to the terminals to resolve labor-management disputes
as a regular part of his job.  Although the administrative law judge found that those visits averaged only about one
hour per week, they constitute a regular portion of claimant's duties necessary to the efficient functioning of the
terminal. See Shives, 151 F.3d at 170, 32 BRBS at 130(CRT).  In addition, the administrative law judge
found that claimant's regular duties also included attendance at labor-management committee meetings held
outside the terminals, which qualified as maritime activity. See generally Riggio, 330 F.3d 162.  We
therefore affirm the administrative law judge's determination that claimant's maritime activities are not merely
episodic as it is supported by substantial evidence and in accordance with applicable law.  See Shives, 151
F.3d at 170, 32 BRBS at 130(CRT); Levins, 724 F.3d at 8, 16 BRBS at 33(CRT); Boudloche, 632
F.2d 1346, 12 BRBS 732; Zeringue, 32 BRBS at 277; see also Riggio, 330 F.3d 162. 
Accordingly, the administrative law judge's conclusion that claimant's job as union president was integral to the
longshoring process, and thus constitutes covered maritime employment under Section 2(3) of the Act, is affirmed.
        We next consider claimant's contention that the administrative law judge erred in finding that employer
met its burden of establishing that claimant was exposed to injurious noise while working as ILA Local 1970
president.  The United States Court of Appeals for the Fourth Circuit has held that in order for the employer
who is claimed against to shift liability to a subsequent covered employer, the first employer must produce
substantial evidence that the claimant's exposure in his subsequent employment was injurious, i.e., 
had the potential to cause his injury. See Faulk, 228 F.3d at 385, 34 BRBS at 75-76(CRT); see
also Brown, 194 F.3d at 5, 33 BRBS at 165(CRT); Everson, 33 BRBS at 153; Zeringue,
32 BRBS at 278; Lins v. Ingalls Shipbuilding, Inc., 26 BRBS 62, 64 (1992).
        In the instant case, the administrative law judge credited claimant's testimony that he visits terminals on
an average of one hour per week where he is exposed to noise for short time periods.  Decision and Order at 4;
Tr. at 26-27.  Specifically, claimant testified that he has been inside shops while loud tools are in operation, the
loudest of which are zip guns, pneumatic grinders, pneumatic impacts, welding machines, and air compressors. 
Decision and Order at 4; Tr. at 35.  He also has been present at the interchange complex which he considers to be
very noisy.  Decision and Order at 4; Tr. at 36-38.  The record also includes deposition testimony of several
management representatives of the employers who employ the members of ILA Local 1970.  EXs 10-17.  These
individuals testified that they had observed claimant, in his capacity as union president, present at the terminals
where he would have been exposed to noise for brief periods of time. Id.  The administrative law judge
cited these depositions as well as claimant's testimony in determining that VIT adduced  "ample and
uncontradicted evidence that claimant was sporadically exposed to loud noises while performing his duties as local
president."  Decision and Order at 10.  The administrative law judge concluded that this evidence was sufficient
to meet employer's burden of showing that claimant was exposed to injurious noise while working as local
president.  Decision and Order at 11.  We affirm the administrative law judge's conclusion as it is supported by
substantial evidence and in accordance with law.  In so doing, we reject claimant's argument that the
administrative law judge was required to reject VIT's evidence of claimant's subsequent noise exposure while
employed by ILA Local 1970 on the basis that the evidence was not sufficiently precise with regard to the source,
duration and dates of claimant's exposure to loud noises in his employment as local union president.[6] 
        
        We are guided in this regard by the decision of the United States Court of Appeals for the Ninth Circuit
in Jones Stevedoring Co. v. Director,  0WCP, 133 F.3d 683, 31 BRBS 178(CRT) (9th Cir. 1997).  In
Jones, the court upheld an administrative law judge's reliance on a claimant's testimony where he did
not have a specific recollection of the precise noises he experienced but, rather, described the various kinds of
noise he generally heard on the job.  The court concluded that this testimony was a reasonable basis for the
administrative law judge's finding that the claimant was exposed to harmful levels of noise.   Id., 133
F.3d at 692, 31 BRBS at 185(CRT).  We hold that the administrative law judge in the instant case reasonably
determined that the uncontradicted evidence that claimant was intermittently exposed to loud noises in his
employment as union president was sufficient to establish exposure that had the potential to cause
claimant's hearing loss. See Faulk, 228 F.3d at 385, 34 BRBS at 75-76(CRT); see also Jones,
133 F.3d at 692, 31 BRBS at 185(CRT).  We therefore affirm the administrative law judge's
determination that VIT met its burden of establishing that claimant was exposed to injurious noise while
working in subsequent covered employment with ILA Local 1970, and the administrative law judge's
consequent denial of the claim against VIT for benefits for claimant's hearing loss.
        Accordingly, the administrative law judge's Decision and Order is affirmed.
        SO ORDERED.

                            _______________________________
                            NANCY S. DOLDER, Chief
                            Administrative Appeals Judge


                            _______________________________
                            ROY P. SMITH
                            Administrative Appeals Judge


                            _______________________________
                            PETER A. GABAUER, Jr.
                            Administrative Appeals Judge
        

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Footnotes.


1) ILA Local 1970 has two employees, claimant and a part-time secretary. See Tr. at 27; EX 5 at 9-10. The members of the local are container repairmen employed on a full-time basis by Virginia International Terminals (VIT) or six other employers. Id. Claimant's salary, retirement and fringe benefits are paid by ILA Local 1970. See EX 5 at 6-7, 13-14. However, the local does not carry workers' compensation insurance for its officers. See EX 5 at 10. Back to Text
2) In his employment as a container repair mechanic for VIT, claimant worked the roadability lane where he was exposed to noise from air tools including pressure washing, welding, chipping, grinding, and changing tires. See Decision and Order at 3, 10; Tr. at 22-23; EX 5 at 4. Back to Text
3) Claimant did not file a hearing loss claim against ILA Local 1970. Back to Text
4) An employer covered by the Act is defined as "an employer any of whose employees are employed in maritime employment, in whole or in part, . . ." 33 U.S.C. §902(4). Thus, as VIT correctly avers, if the injured employee meets the status and situs requirements of Sections 2(3) and 3(a), 33 U.S.C. §§902(3), 903(a), his employer would automatically qualify as a statutory employer within the meaning of Section 2(4). American Stevedoring, Ltd. v. Marinelli, 248 F.3d 54, 35 BRBS 41(CRT) (2d Cir. 2001), aff'g 34 BRBS 112 (2000); Shives v. CSX Transportation, Inc., 151 F.3d 164, 169, 32 BRBS 125, 129(CRT) (4th Cir. 1998), cert. denied, 119 S.Ct. 547 (1998); Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750, 758, 14 BRBS 373, 378-379 (5th Cir. 1981), cert. denied, 454 U.S. 1163 (1982); Ricker v. Bath Iron Works Corp., 24 BRBS 201, 206 (1991). On appeal, claimant does not argue that ILA Local 1970 is not an employer under Section 2(4) but, rather, that his employment with the local does not constitute maritime employment under Section 2(3) of the Act. Back to Text
5) We also reject claimant's related argument that the administrative law judge failed to contrast claimant's duties with traditional maritime characteristics. See Cl. P/R at 19-20. The standard for coverage does not concern whether the claimant's duties have traditional maritime characteristics; it makes no difference that claimant's duties are not specific to the maritime industry. See Schwalb, 493 U.S. 40, 23 BRBS 96(CRT); Marinelli, 248 F.3d 54, 35 BRBS 41(CRT). In a related vein, claimant argues that Marinelli is distinguishable on the basis that Marinelli involved a union shop steward employed by a stevedoring company whereas claimant here is president of a local union and is employed by the union itself. See Cl. P/R at 20-21. Claimant, however, provides no support for his proposition that a union president employed by the union itself cannot have status under the Act as a maritime employee of the union. We further reject claimant's attempts to distinguish Marinelli on the basis that the shop steward in Marinelli worked on-site at the stevedoring facility and was available to handle grievances at all times in contrast to claimant here who spends little time at the terminals and does not handle grievances on a day-to-day basis. It is irrelevant that claimant's contribution to the longshoring process is not continuous or always needed. See Schwalb, 493 U.S. 40, 23 BRBS 96(CRT). Back to Text
6) Claimant additionally avers that the administrative law judge erred in failing to address inconsistencies in Joseph Ruddy's testimony regarding claimant's noise exposure in his job as union president. See Cl. P/R at 27-28; EX 12. Although the administrative law judge cited Mr. Ruddy's deposition testimony in support of his finding, he also cited the testimony of six other management representatives, see EXs 10-11, 13, 15-17, as well as claimant's own testimony, see Tr. at 26-27, 35-38, in support of his determination that claimant was sporadically exposed to loud noises. See Decision and Order at 10. Thus, his finding is supported by substantial record evidence. See generally Faulk, 228 F.3d 378, 34 BRBS 71(CRT). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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