Claimant appealed, and the BRB affirmed, the Decision and Order of ALJ C. Richard Avery, wherein Claimant was denied benefits under the Act. The ALJ addressed only the issue of status under Section 2(3) of the Act, 33 U.S.C. § 902(3).
Generally, a claimant satisfies the “status” requirement if he is an employee engaged in work that is integral to the loading, unloading, constructing, or repairing of vessels. See 33 U.S.C. §902(3); Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96 (1989). To satisfy this requirement, he need only “spend at least some of [his] time in indisputably longshoring operations.” Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 273 (1977). Although an employee is covered if some portion of his activities constitute covered employment, those activities must be more than episodic, momentary, or incidental to non-maritime work. Boudloche v. Howard Trucking Co., 632 F.2d 1346, 12 BRBS 732 (5th Cir. 1980), cert. denied, 452 U.S. 915 (1981).
Here, Claimant was a yard foreman; his regular duties consisted of loading trucks, building pipe racks, and cleaning the yard. On some occasions, he did barge work when the barge crew was short-handed. Claimant’s yard supervisor indicated that Claimant was sometimes put on the day’s schedule to help the barge crew, and at other times, he would simply be called over to help. Initially, Claimant’s yard supervisor testified that Claimant spent 50% of his time loading trucks, 5% cleaning the yard, 15% building pipe racks, and 30% working the barges. Yet, he later testified that he saw Claimant working the barges approximately only ten times over the course of three years. Claimant was unable to estimate how many times he worked on the barges over the course of his employment; his best guess was 20% of the time. Claimant reported that he did not work on a barge every week, but sometimes he aided in moving barges around. Claimant’s co-worker stated that Claimant was part of the truck crew, which was separate from the barge crew, and that he could have loaded barges if he were filling in for someone, but that such a job was infrequent. No reports or work logs existed in the record.
Claimant contended that because he was sometimes put on the “schedule,” his work loading and unloading barges was not “brief and fortuitous,” as the ALJ found. The ALJ found that Claimant’s work on the barges was not a part of his regular duties. Though the ALJ considered the testimony of Claimant’s yard supervisor to be contradictory, he credited the supervisor’s later statements that Claimant worked on the barges approximately ten times over a three-year period, as this coincided with Claimant’s co-worker’s statements. All witnesses agreed that Claimant’s work on the barges was not part of his regular duties and was something that was done only when the barge crew was short-handed. Consequently, the BRB concluded that the ALJ rationally found that Claimant’s activities on the barges were “sporadic” and “were too brief and fortuitous to confer longshore jurisdiction.” See Kilburn v. Colonial Sugars, 32 BRBS 3 (1998). As such, the BRB affirmed the finding that Claimant failed to establish that he spent at least “some” time in covered work. Id.; see generally Caputo, 432 U.S. at 273. The BRB, therefore, affirmed the ALJ’s denial of benefits under the Act.