Melvin Sidwell v. VIRGINIA INTERNATIONAL TERMINALS, No. 03-1966  INC.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MELVIN SIDWELL,
Petitioner,
v.
VIRGINIA INTERNATIONAL TERMINALS, No. 03-1966 
INC.; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents. 
On Petition for Review of an Order of the
Benefits Review Board.
(02-0694)
Argued: February 25, 2004
Decided: June 7, 2004
Before WIDENER and DUNCAN, Circuit Judges,
and William D. QUARLES, Jr., United States District Judge
for the District of Maryland, sitting by designation.
Vacated and remanded by published opinion. Judge Duncan wrote the
opinion, in which Judge Widener and Judge Quarles joined.
COUNSEL
ARGUED: Gregory Edward Camden, MONTAGNA, BREIT,
KLEIN & CAMDEN, L.L.P., Norfolk, Virginia, for Petitioner. Rich-
ard John Barrett, VANDEVENTER BLACK, L.L.P., Norfolk, Vir-
ginia, for Respondents.

-- 1 of 10 --

OPINION
DUNCAN, Circuit Judge:
Melvin Sidwell petitions for review of the Decision and Order of
the Benefits Review Board ("BRB") denying his claim for permanent
partial disability benefits under the Longshore and Harbor Workers’
Compensation Act, as amended, 33 U.S.C.A. §§ 901-50 (West 2001)
("LHWCA"). Sidwell, who became president of Local 1970 of the
International Longshoremen’s Association ("Local 1970") after leav-
ing his former employer, Virginia International Terminals, Inc.
("VIT"), alleged in his application for benefits that he suffered a
noise-induced hearing loss while employed as a container repair
mechanic by VIT. The administrative law judge ("ALJ") reviewing
Sidwell’s claim found his subsequent employment as president of
Local 1970 constituted maritime employment that exposed him to
injurious stimuli, and that Local 1970 was therefore responsible for
Sidwell’s injury, rather than VIT. The BRB affirmed that decision.
Because we conclude the ALJ and BRB erred in finding that
Sidwell’s responsibilities with Local 1970 constituted maritime
employment, we grant Sidwell’s petition for review, vacate the
BRB’s final decision and order, and remand.
I.
In 2000, a doctor diagnosed Sidwell with a noise-induced hearing
loss. At the time of the diagnosis, Sidwell was employed as the presi-
dent of Local 1970, which represented employees involved in mari-
time cargo operations at various waterfront terminals around the
Hampton Roads area of Chesapeake Bay in Virginia.1 Although
Sidwell generally discharged his duties as president from his home,
in order to address specific issues or grievances he would appear from
time to time at one or more of the waterfront terminals where Local
1970’s members worked.2 As a result of these visits, Sidwell spent
1As president, Sidwell was the only full-time employee of Local 1970.
2Sidwell characterized these issues as "[v]arious problems with pay,
productivity, [and] overtime rotations," such as "who’s next in line to get
overtime hours," or "who worked last, who’s up for rotation, who’s up
for shift rotation." J.A. 26. However, these did not include the possibility
of a work stoppage.
2 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 2 of 10 --

approximately one hour per week at locations where longshoring
activity was taking place. The remainder of Sidwell’s work-week was
devoted to representing Local 1970 on supervisory committees of the
Hampton Roads Port Authority away from the waterfront terminals.
Prior to becoming a full-time employee of Local 1970 in 1996,
Sidwell’s primary employment was with VIT as a container repair
mechanic.3 At VIT, Sidwell inspected the shipping containers off-
loaded from cargo vessels and the trailers on which they were placed
for transportation by truck before they left the terminal. The inspec-
tions were performed in VIT’s "roadability lanes," where employees
conducted any necessary cleaning, structural repairs, and maintenance
on the containers and trailers as they entered or left the marine termi-
nal. In discharging these duties, Sidwell routinely used air-powered
pressure-washers, chippers, grinders, and tire changers. It is undis-
puted that the operation of these tools as well as other machinery and
vehicles in the area contributed to high levels of noise throughout the
work-day.
After ending his employment with VIT in order to serve as presi-
dent of Local 1970 full-time, Sidwell spent much less time at the
"roadability lanes" or other areas of the marine terminals around
Hampton Roads. Sidwell occasionally visited the waterfront marine
terminals in order to resolve issues regarding pay, productivity, shift
rotation, and other labor issues. However, Sidwell’s primary responsi-
bilities as local president involved maximizing the number of jobs
available to his local’s membership and resolving questions regarding
the scope of the union’s jurisdiction. Sidwell also served as the
Local’s representative on several committees with oversight responsi-
bility over various aspects of the operation of the Hampton Roads
waterfront marine terminals.
Following the diagnosis of his noise-induced hearing loss, Sidwell
filed a claim under the LHWCA for permanent partial disability bene-
fits that identified VIT as the responsible employer. In opposing
Sidwell’s claim, VIT attempted to shift liability for Sidwell’s disabil-
ity to Local 1970 through the "last maritime employer rule." Under
3During his employment with VIT, Sidwell served as president of
Local 1970 on a part-time basis.
3 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 3 of 10 --

that rule, the last employer covered by the LHWCA who causes or
contributes to an occupational injury is fully liable for compensation
benefits. In support of this effort, VIT asserted that the nature of
Sidwell’s employment as president of Local 1970 demonstrated that
Local 1970 was a covered employer under the LHWCA and that
Sidwell’s time at work sites where Local 1970’s membership was
employed exacerbated his hearing loss.
Both the ALJ at the hearing and the BRB on appeal concluded that
Sidwell’s employment with Local 1970 constituted maritime employ-
ment and that he was exposed to injurious stimuli in that capacity.
Sidwell now petitions this court for review, arguing that the BRB
erred in concluding that Sidwell’s position as president of Local 1970
constituted maritime employment.
II.
Our review of the BRB’s order is limited. We review the BRB’s
decision to assess whether substantial evidence supports the factual
findings of the ALJ and whether the legal conclusions of the BRB and
ALJ are rational and consistent with applicable law. See Gilchrist v.
Newport News Shipbuilding & Dry Dock Co., 135 F.3d 915, 918 (4th
Cir. 1998); See v. Wash. Metro. Area Transit Auth., 36 F.3d 375, 380
(4th Cir. 1994). While our review of the ALJ’s factual findings is thus
limited to ascertaining whether the ALJ relied on evidence that a rea-
sonable mind might accept as adequate to support its conclusions, see
See, 36 F.3d at 380, we review the legal conclusions on which the
determination is based de novo and without deference to the BRB’s
interpretation of the LHWCA’s provisions, Gilchrist, 135 F.3d at 918.
A.
Sidwell’s challenge to the BRB’s Decision and Order turns on
whether the BRB properly applied the last maritime employer rule. In
keeping with the LHWCA’s policy "‘to encourage the prompt and
efficient administration of compensation claims,’" Newport News
Shipbuilding & Dry Dock Co. v. Stilley, 243 F.3d 179, 181 (4th Cir.
2001) (quoting Rodriguez v. Compass Shipping Co., 451 U.S. 596,
612 (1981)), this court and others have adopted a "last employer" rule
in assigning liability for LHWCA claims involving multiple employ-
4 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 4 of 10 --

ers. This rule assigns full liability under the LHWCA to the last mari-
time employer that exposed the employee to injurious stimuli before
the claimant/employee became aware of his injury. Id. at 181-82.
Because the rule applies only to maritime employers, the last
employer covered by the LHWCA will always be "fully liable for a
claimant’s injury even though a subsequent, non-maritime employer
also contributed to the injury." Id. at 182.4
In his petition, Sidwell argues that Local 1970 was not a maritime
employer to whom VIT could shift full liability. In response, VIT reit-
erates its contention that Sidwell’s responsibilities as president dem-
onstrate that he is a covered employee under the LHWCA. For
purposes of the last maritime employer rule, the terms "covered
employer" and "maritime employer" are synonymous. See Stilley, 243
F.3d at 182. An employer is covered under the LHWCA if it has "any
employee . . . engaged in whole or in part in maritime employment."
See 33 U.S.C. § 902(4) (2000). Hence, whether Local 1970 is a mari-
time employer turns on whether Sidwell’s position as president, the
only full-time position with the Local, constitutes maritime employ-
ment.
B.
Although the term "maritime employment" is not defined by the
LHWCA, the Act does provide a non-exclusive list of occupations
that meet the criterion. Section 2(3) of the Act defines a covered "em-
ployee" as "any longshoreman or other person engaged in longshor-
ing operations, and any harbor-worker including a ship repairman,
shipbuilder, and ship-breaker." 33 U.S.C. § 902(3) (2000) (emphasis
added). Although the position of president of a union local is not
among the occupations enumerated by the LHWCA as qualifying as
maritime employment, VIT argues that the nature of Sidwell’s
4If a covered employer cannot shift liability for a LHWCA disability
claim to a subsequent employer under the last maritime employer rule as
a threshold matter, the covered employer may nevertheless avoid ulti-
mate liability in a given case by "proving that the employee’s disease or
injury resulted exclusively from exposure during work for another
employer." Stilley, 243 F.3d at 184 (emphasis added). VIT did not
attempt to make such a showing before the ALJ, however.
5 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 5 of 10 --

responsibilities demonstrates that his position constitutes maritime
employment under the "other person[s] engaged in longshoring opera-
tions" language of § 902(3). The assessment of whether a person’s
employment qualifies under this category entails "an occupational
test that focuses on loading and unloading." P.C. Pfeiffer Co. v. Ford,
444 U.S. 69, 80 (1979) (emphasis added). More precisely, only occu-
pations that are "an integral or essential part of loading or unloading
a vessel" qualify as maritime employment under the "other persons"
category of § 902(3). See Chesapeake & Ohio Ry. Co. v. Schwalb,
493 U.S. 40, 47 (1989). The "determinative consideration" in identi-
fying whether an occupation is integral or essential is whether the
employee’s role is such that "the ship loading process could not con-
tinue" absent the employee’s participation. Id. at 48.
It is undisputed that Sidwell’s role as union local president does not
require him to engage in the physical activity of loading and unload-
ing vessels. The question then becomes whether Sidwell’s duties are
such that his occupation can be considered "integral or essential" to
the process of loading or unloading vessels so as to bring him within
the category of other persons engaged in longshoring operations.
First, VIT argues that Sidwell played an occasional but direct role in
longshoring operations by resolving disputes involving particular
members of his local at the waterfront marine terminals, and that this
role was integral to the loading or unloading of sea-going vessels.
Second, VIT contends that Sidwell, as the Local’s representative on
various committees concerning important aspects of the maritime
activities conducted in the Hampton Roads port area, played an essen-
tial role in the operation of the port and in the longshoring activities
conducted therein. We consider each assertion in turn.
1.
We first consider what is arguably Sidwell’s most direct involve-
ment in the loading and unloading process: his role in resolving labor
issues during the workday. Sidwell described his duties as union pres-
ident as follows: "I negotiate the working agreement, collective bar-
gaining agreement, under which the men work under, and any and all
job disputes. I handle that." J.A. 25. Based on this job description,
VIT contends that Sidwell’s work "clearly facilitated and was integral
to the smooth workings of the waterfront." Appellee’s Br. at 19.
6 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 6 of 10 --

In support of the conclusion that Sidwell’s union activities are inte-
gral or essential to longshoring operations, both VIT and the BRB
relied on American Stevedoring Limited v. Marinelli, 248 F.3d 54 (2d
Cir. 2001). In Marinelli, the Second Circuit concluded that the work
of a union steward paid by a stevedoring company was integral and
essential to the company’s longshoring operation. Id. at 59-60 & n.4.
The shop steward in Marinelli worked at the waterfront terminal serv-
ing as an arbitrator between the company and union members. Signif-
icantly, as an adjunct to his responsibilities for maintaining safety and
enforcing its terms, the collective bargaining agreement ("CBA")
under which the shop steward worked vested him with authority to
unilaterally order a work stoppage. Id. at 57.
The distinctions between Sidwell’s responsibilities and authority
and those of the shop steward in Marinelli are significant. For exam-
ple, Marinelli’s job site was located at the waterfront terminal. He
was physically present at the piers and involved in the day-to-day
operations, mediation, and safety inspections of the waterfront opera-
tions. To that end, Marinelli also boarded vessels on a regular basis.
Sidwell, by contrast, spent little time at the waterfront terminal. There
is no indication in the record that he boarded vessels. He worked out
of his home and was called to the pier, at best infrequently, to respond
to specific grievances. These facts underscore the significantly greater
extent to which Sidwell was removed from the loading and unloading
process.
However, we are most persuaded that the BRB erred in relying on
Marinelli by the difference in the respective authority of Sidwell and
the claimant in Marinelli to stop work. In assessing whether an
employee’s occupation is integral or essential, the "determinative con-
sideration," as noted above, is whether "the ship loading process
could not continue" without the employee’s participation. Schwalb,
493 U.S. at 48. This standard makes the capacity to interrupt ongoing
longshoring activities paramount. In Marinelli, the controlling CBA
authorized the claimant to unilaterally order a work stoppage as part
of his mandate to enforce the CBA’s terms and conditions. See 248
F.3d at 57, 60 n.4. That power brings Marinelli squarely within the
ambit of Schwalb’s "determinative consideration." Sidwell, however,
is not vested with corresponding authority by the constitution and by-
laws of Local 1970 or the International Longshoremen’s Association
7 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 7 of 10 --

("ILA"). Nor did VIT present evidence that Sidwell was authorized
to interrupt longshoring operations under any of the CBAs governing
the sites where Local 1970’s membership worked.
We accept VIT’s characterization that Sidwell’s union role "clearly
facilitated and was integral to the smooth workings of the waterfront."
Appellee’s Br. at 19. However, we cannot conclude that it "bear[s] an
integral relationship to the loading, unloading, building or repairing
of a vessel." Id. Particularly given the lack of any indication that
Sidwell possessed the power to interrupt longshoring operations, or
that his absence or failure to discharge his duties would lead to the
same result, we find Sidwell’s handling of work grievances and inter-
mittent appearances at the terminals are insufficient to demonstrate
that the duties of his position as president of Local 1970 are "integral
or essential" to longshoring operations for purposes of constituting
maritime employment.
2.
Our review of VIT’s assertion in the context of the remainder of
Sidwell’s responsibilities also supports this conclusion. As president,
Sidwell represented Local 1970 on fifteen to eighteen joint commit-
tees of the Hampton Roads Port Authority and the ILA concerning
aspects of the port’s operations. These included the port safety com-
mittee, the substance abuse committee, the driver’s accident review
committee, and the productivity committee. Sidwell also negotiated
the terms of the CBAs governing the employment of Local 1970’s
membership throughout the Hampton Roads area. While Sidwell
spent approximately one hour of each week at the marine terminals
resolving the work grievances discussed above, he devoted roughly
sixty-five to seventy hours per week to his committee and negotiating
responsibilities.
Despite the importance of the committees on which Sidwell served
to the longshoring operations conducted in the Hampton Roads area,
we disagree with VIT’s contention that it is sufficient, either indepen-
dently or together with the remainder of his duties, to demonstrate
that his position constitutes maritime employment. The oversight
powers of the numerous committees on which Sidwell sits undoubt-
edly affected the longshoring operations conducted in the Hampton
8 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 8 of 10 --

Roads area as a general matter. We cannot conclude, however, that
this level of involvement is sufficient to demonstrate that these activi-
ties are "integral or essential" to the loading or unloading of vessels
within the meaning of the LHWCA. Were Sidwell’s committee activi-
ties sufficient to demonstrate that an employee was engaged in mari-
time employment under the LHWCA, it would be difficult to see how
other members of these committees would not be covered. The
Supreme Court has cautioned against reading "‘maritime employ-
ment’ to extend so far beyond those actually involved in moving
cargo between ship and land transportation." Herb’s Welding, Inc. v.
Gray, 470 U.S. 414, 424 (1985) (emphasis added); see also Marinelli,
248 F.3d at 60 ("[T]he relevant question is whether Marinelli’s shop
steward duties were integral or essential to ASL’s stevedoring opera-
tions . . . not whether shop steward duties are integral or essential to
stevedoring operations in general."). The LHWCA requires a direct
and immediate role in the loading or unloading process. See Schwalb,
493 U.S. at 46-47.
The broad interpretation adopted by the ALJ and the BRB here also
conflicts with the purpose of the term "maritime employment." Prior
to 1972, the sole criterion for coverage under the LHWCA was
whether the injury occurred on the "actual navigable waters of the
United States (including any dry dock)." Dir., Office of Workers’
Compensation Programs v. Perini N. River Assocs., 459 U.S. 297,
299, 311 (1983) (internal quotations omitted). As a result, coverage
under the LHWCA "stopped at the water’s edge," meaning workers
such as longshoremen literally walked into and out of coverage under
the LHWCA during the course of their duties. Id. at 317. To rectify
this, Congress amended the LHWCA in 1972 to "expand[ ] the ‘navi-
gable waters’ situs to include certain adjoining land areas," id. at 299,
including "any adjoining pier, wharf, dry dock, terminal, building
way, marine railway, or other adjoining area customarily used by an
employer in loading, unloading, repairing, or building a vessel," id.
at 313-14 (internal quotation marks omitted). With this expansion of
the geographic scope of the LHWCA’s coverage, Congress found it
necessary "to describe affirmatively the class of workers Congress
desired to compensate" by clarifying that only those workers in the
covered situs that are "engaged in maritime employment" as described
in § 902(3) are covered. Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249, 264 (1977). The LHWCA’s "status" requirement of
9 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 9 of 10 --

being engaged in maritime employment thus limits the extended land-
ward coverage of the LHWCA following the 1972 amendments. Per-
ini, 459 U.S. at 317-18.
The conclusion that Sidwell’s at best indirect and incidental role in
the loading and unloading process constitutes maritime employment
is at odds with the purpose of the LHWCA’s "status" requirement.
Congress and the Supreme Court have made it clear that even a lim-
ited but direct role in the loading or unloading process will satisfy the
"status" requirement. See, e.g., Schwalb, 483 U.S. at 47. However, the
contributions of the committees on which Sidwell sat were both lim-
ited and indirect in their effect on the longshoring operations con-
ducted at the waterfront terminals where Local 1970’s membership
worked. Broadening the scope of occupations qualifying as maritime
employment under the "other person engaged in longshoring opera-
tions" category to include individuals with responsibilities that do not
at a minimum directly facilitate the loading or unloading process
undercuts the limiting function of the "status" requirement.
III.
Because we find the facts presented to the ALJ do not demonstrate
that Sidwell’s responsibilities were "integral or essential" to the load-
ing and unloading of cargo vessels, we disagree with the conclusion
that his employment by Local 1970 as president constitutes maritime
employment under the LHWCA.5 Accordingly, we grant Sidwell’s
petition for review, vacate the final Decision and Order of the BRB,
and remand this matter for further proceedings consistent with this
opinion.
VACATED AND REMANDED
5As an alternative to his challenge regarding the conclusion of the
BRB that Local 1970 was a maritime employer, Sidwell also argues in
his brief that there was no evidence from which the ALJ could conclude
that his employment with Local 1970 exposed him to injurious stimuli.
However, because we conclude Local 1970 is not a maritime employer,
we do not reach this issue.
10 SIDWELL v. VIRGINIA INTERNATIONAL TERMINALS

-- 10 of 10 --