PETITION FOR REVIEW FROM THE BENEFITS REVIEW BOARD; U.S. DEPARTMENT OF LABOR (BRB No. 76-400).
Aldisert and Weis, Circuit Judges, and A. Sherman Christensen, District Judge.*fn*
This petition for review of an order of the Benefits Review Board by an employer and its workers' compensation insurance carrier presents the question whether one who is employed by a shipbuilder as an unskilled laborer is covered by the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act [LHWCA], 33 U.S.C. §§ 901-950. Because the nature of respondent Banks' primary duties does not satisfy the status requirement of the LHWCA, we will set aside the order of the Benefits Review Board which afforded Banks coverage under the Act.
Gregory Banks works as a "laborer" at Dravo Corporation's Engineering Works Division in Neville Island, Pennsylvania. There is no serious disagreement among the parties as to his job functions: he does essentially unskilled jobs related to plant maintenance, such as cleaning up debris. On the day he was injured, Banks had been assigned to spread salt on walkways and steps wherever he saw ice. This included areas in the plant's boat yard. Banks injured his neck and shoulder while lifting a bag of salt, and was temporarily disabled as a result.
In considering Dravo's contention that a person in Banks' position is not covered under the terms of the LHWCA,*fn1 we are guided by the Supreme Court's recent opinion in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S. Ct. 2348, 53 L. Ed. 2d 320, 45 U.S.L.W. 4729 (1977), which provides us with the relevant inquiries in determining whether coverage should be extended: both the situs of the injury and the status of the injured must be considered. We note preliminarily, however, that in arguing that Banks is not covered, Dravo contends that the Act did not extend coverage to a new class of workers, but rather merely eliminated the disparity in benefits awardable to the same person depending upon whether he or she was located on land or sea when the injury occurred. Under this interpretation, since Banks' jobs are not performed on navigable waters he was not covered prior to 1972 and cannot be covered now. But this approach is refuted by the very first sentence and citation in Northeast Marine Terminal : "Congress amended the [LHWCA], in substantial part to 'extend the Act's coverage to protect additional workers.' S.Rep.No. 92-1125, 92nd Cong., 2d Sess., 1 (1972)." 45 U.S.L.W. at 4730 (emphasis added). Nevertheless, for reasons stated below, we determine that Banks is not covered under the Act.
As to situs, 33 U.S.C. § 903(a) requires that the injury occur upon "navigable waters . . . including any . . . adjoining area customarily used by an employer in . . . building a vessel." Dravo's Neville Island facility is devoted to the construction and launching of barges and towboats. Its operations are described in the earlier opinion of this court in Dravo Corp. v. Maxin, 545 F.2d 374, 376 (3d Cir. 1976). Because the entire area comprises a comprehensive shipbuilding operation, we have no difficulty in determining that Banks satisfied the situs requirement of the LHWCA.
We cannot make a similar determination in regard to Banks' status. The LHWCA defines covered employees as "any person engaged in maritime employment, including any . . . shipbuilder . . ." 33 U.S.C. § 902(3). In order to recover, then, Banks must fall within the statutory term "shipbuilder". Banks admits that he was not directly involved in such activities as welding parts of a ship together, but argues that since the Neville Island operation is an integrated "assembly line" shipbuilding facility, and since his job is "directly supportive of those involved in shipbuilding", he should be covered.
The "integral part" approach finds support in the cases. For example, in Northeast Marine Terminal, supra, the Supreme Court determined that respondent Blundo, a checker, was covered under the Act because his tasks were "clearly an integral part of the loading process." 432 U.S. at 271, 45 U.S.L.W. at 4735. And in Maxin, supra, this court said that Maxin's functions were "an integral part of the new ship construction activities." 545 F.2d at 380. But in each of these cases, there was a close functional nexus between the individual's job and "longshoring" or "shipbuilding", respectively. Blundo's job was to check cargo as it was removed from the ship and placed upon the ...