Lobo v. Celebrity Cruises and Federazione Italianan Transportion Lawsuit

October 12, 2010

Lobo v. Celebrity Cruises and Federazione Italianan Transportion Lawsuit

Initial Appellate Brief

In this Initial Appellate Brief to the Eleventh Circuit Court of Appeals of the United States, the Plaintiffs are appealing a decision of the Southern District of Florida denying the application of U.S. labor laws to foreign seafarers working for cruise line headquartered in Miami, FL.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
CASE NO.: 10-13623-GG
INACIO LOBO, et. al.
Petitioners/Appellants
vs.
CELEBRITY CRUISES, INC., and
FEDERAZIONE ITALIANAN TRANSPORTI
Respondents / Appellee

Appeal from the United Status District Court for the Sourthern District of Florida, Docket # 1:08-cv-23386-ASG

APPELLANT’S INITIAL BRIEF

CARLOS FELIPE LLINÁS NEGRET
MICHAEL A. WINKLEMAN
LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A.
Attorneys for Appellants/Plaintiffs
2 South Biscayne Tower, Suite 1776
Miami, Florida 33131
Telephone: (305) 373–3016
Facsimile: (305) 373–6204

STATEMENT REGARDING ORAL ARGUMENT

Appellants respectfully request oral argument. The outcome of this case will have a substantial impact on the applicability of Federal Labor Statutes – particularly section 301 of the Labor Management Relations Act and the Duty of Fair Representation – to seafarers working for U.S. based cruise lines, and thus implicates important policy considerations. As such, Appellants believe oral argument will be of assistance in presenting this case to the Court.

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ……………………. 2
TABLE OF CONTENTS ………………………………………………… 3
TABLE OF AUTHORITIES …………………………………………….. 6
STATEMENT OF JURISDICTION ……………………………………… 9
STATEMENT OF THE ISSUES …………………………………………10
STATEMENT OF THE CASE ……………………………………………12
SUMMARY OF ARGUMENT ………………………………………….. 17
STANDARD OF REVIEW ……………………………………………… 18
ARGUMENT ……………………………………………………………..19

I.

A. THESE FEDERAL LABOR LAWS DO APPLY BECAUSE TO HOLD OTHERWISE ALLOWS FOREIGN COMPANIES TO ACT WITH IMMUNITY IN THE U.S., AND IS CONTRARY TO RHODITIS, AND THE ‘WARDS OF THE COURT’ DOCTRINE…………………………………………………………19
B. THIS HONORABLE COURT’S ANALYSIS SHOULD BEGIN WITH THE RECOGNITION THAT SEAMAN ARE EMPHATICALLY THE WARDS OF THE ADMIRALTY COURTS AND TREATED AS A FAVORED CLASS BY CONGRESS…… 22
C. ALL OF THE CASES SUPPORT FINDING THAT THESE FEDERAL LABOR LAWS APPLY………………………………. 24

i. Benz et. al., v. Compania Naviera Hidalgo, S.A is factually distinguishable, and therefore does not bar the applicability of §301 herein………………………………………………………………24
ii. For purposes of whether or not to apply U.S. law, Hellenic Lines v. Rhoditis and its progeny have established that the shipowners base of operations bears more weight than legal fictions such as a ship’s flag of convenience and/or the nationality of the seamen. Herein, Celebrity should be considered on equal footing as an American employer because of its overwhelming American Connections………………………………………………………. 27
iii. McCulloch v. Sociedad Nacional de Marineros de Honduras…………………………………………………………. 31
iv. Spector v. Norwegian Cruise Line………………………………… 33

II. THE PLAIN LANGUAGE, INTENT AND GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION FAVOR THE APPLICATION OF §301 TO CELEBRITY…………………………………………. 36

i. Plain Language: These Seafarers fall under the Definition of “Employee under the LMRA……………………………………….36
ii. The intent behind the act is furthered by Application of §301 to these Seafarers……………………………………………………. 37
iii. The presumption against territorial application is inapposite here, because all of the relevant conduct occurred in Miami, Florida……………………………………………………………. 39

III. THIS IS AN ACTION WHICH COMBINED THE REMEDIES OF THE SEAMAN’S WAGE ACT AND § 301. PURSUANT TO U.S. Bulk v. Arguelles, THE UNITED STATES SUPREME COURT HELD that the Seamen’s Wage Act and § 301 provide complementary remedies. SINCE The Wage Act is expressly available to foreign seamen, §301 must also be available to foreign seamen; otherwise, Arguelles is overturned because they would no longer be complementary remedies……………………………….. ……………………… 40

IV. THE DISTRICT COURT ERRED IN DISMISSING NON-HYBRID COUNTS III AND IV AGAINST THE UNION. THERE IS NO EXTRATERRITORIALITY OF U.S. LAWS WHERE A LABOR UNION 1) ACTS ON ITS MEMBERS BEHALF IN THE UNITED STATES, 2) PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT GOVERNED BY THE LAWS OF FLORIDA, 3) SELECTS MIAMI AS THE FORUM OF ARBITRATION, AND 4) ALL THE RELEVANT WRONGFUL CONDUCT OCCURS IN MIAMI, FLORIDA. THIS COURT, BELOW, THEREFORE HAD SUBJECT MATTER JURISDICTION OVER PLAINTIFFS’ NON-HYBRID CLAIMS, BOTH UNDER THE PLANE LANGUAGE OF THE LMRA, AND UNDER 28 U.S.C. § 1337……………………. 42

i. The Federal Labor Laws apply to the Union Because all of the relevant conduct occurred in Florida. Therefore, there is no extraterritorial application of the laws……………………………. 45
ii. Here there is subject matter jurisdiction under the plain language of the LMRA. The nationality of the seafarers is immaterial because the statute is applied without regard to the citizenship of the parties. Instead, there is jurisdiction where the relevant conduct – the Union’s representation of employee/seafarers – occurs in this district…………………………………………………………….. 47
iii. Alternatively, binding Supreme Court and Eleventh Circuit jurisprudence indicate that the Court has subject matter jurisdiction under 28 U.S.C. §1337. Contrary to the District Court’s ruling, non-hybrid claims for breach of duty of fair representation can be independently asserted even where claims against the employer under the CBA are absent or prohibited…………………………………………………………51
iv. Eleventh Circuit precedent dictates that where a foreign union engages in wrongful conduct through its agents in the United States, the National Labor Relations Act is properly invoked to reach such conduct…………………………………………… 54

V. AT THE ARBITRATION, THE UNION RELIED ON THE FEDERAL LABOR LAWS TO JUSTIFY ITS POSITION AS THE SEAFARERS’ EXCLUSIVE BARGAINING REPRESENTATIVE. NOW, IN ORDER TO CIRCUMVENT THE DUTY OF FAIR REPRESENTATION OF SUCH LAWS; THE UNION TOOK THE POSITION BELOW THAT THOSE LAWS DID NOT APPLY TO IT. IT IS CONTRARY TO PUBLIC POLICY THAT THE UNION CAN COME TO THE UNITED STATES AND REPRESENT SEAFARERS – RELYING ON FEDERAL LABOR STATUTES (GETTING THEIR BENEFIT), YET AT THE SAME TIME REFUSE TO BE SUBJECT TO ITS LIABILITIES………………………………………………………. 56

CERTIFICATE OF COMPLIANCE …………………………………….. 58
CERTIFICATE OF SERVICE …………………………………………… 58

TABLE OF AUTHORITIES
Page

Bainbridge v. Merchants’ & Miners’ Transp. Co.,
287 U.S. 278 (1932)……………………………………………………23, 36

Benz et. al., v. Compania Naviera Hidalgo, S.A
353, U.S. 138 (1957) …………………………………………. 24, 25, 26, 32

Brenniger v. Sheet Metal Workers International Ass’n Local Union No. 6, 493 U.S. 67 (1989)………………………………………………… 45, 51, 52

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.
447 U.S. 102 (1980) ………………………………………………….. 36, 47

De Canas v. Bica
424 U.S. 351, 356-357 (1976)…………………………………………….. 38

Delcostello v. International Brotherhood of Teamsters
462 U.S. 151, 163-4 (1983) ……………………………………………….. 20

Dominguez v. Tom James Company,
113 F. 3d 1188, 1190 (11th Cir. 1997) ………………………………… 18

EEOC v. Arabian American Oil Co.,
499 U.S. 244, 260 (1991)……………………………………………… 39, 46

Foley Bros., Inc. v. Filardo
336 U.S. 281, 285 (1949) …………………………………………….. 39, 46

Francis E. Dowd v. International Longshoreman’s Association, AFL-CIO
975 F. 2d 779, (11th Cir. 1992) …………………………………………… 54

Hellenic Lines v. Rhoditis,
398 U.S. 306 (1970)………………………………………. 18, 21, 26, 27, 28

Lauritzen v. Larsen
345 U.S. 571 (1953) ……………………………………………… 28, 36, 37

Lobo v. Celebrity Cruises, Inc.
488 F. 3d 891 (11th Cir. 2007)……………………………………………..13

McCulloch v. Sociedad Nacional de Marineros de Honduras,
372 U.S. 10 (1963)………………………………………………… 31, 32, 33

Smith v. Evening News Assn.,
371 U.S. 195 (1962) ………………………………………………………… 20

Smith v. Local No. 25
500 F. 2d 741 (5th Cir. 1974)……………………………………………… 53

Sure Tan Inc. v. National Labor Relations Board
467 U.S. 883 (1984) ……………………………………………… 37, 38, 49

United States of America v. Williams
340 F. 3d 1231 (11th Cir. 2003)…………………………………………… 19

Textile Workers Union of America v. Lincoln Mills of Alabama
353 U.S. 448, 454 (1957) …………………………………………………38

Tunstall v. Locomotive Firemen & Enginemen
323 U.S. 210, 213 (1944)…………………………………………………. 52

U.S. Bulk v. Arguelles,
400 U.S. 351 (1971) ……………………………………………… 21, 22, 40

Vaca v. Sipes
386 U.S. 171 (1967) ………………………………………………………………… 51, 57

29 U.S.C. §185 …………………………………………….. 9, 12, 44, 47, 49
46 U.S.C. §10313 ………………………………………….. 9, 13, 16, 19, 21
28 U.S.C. §1331 ……………………………………………………….. 9, 44
28 U.S.C. §1333 …………………………………………………………… 9
29 U.S.C. §159 ………………………………………………………9, 16, 19
29 U. S. C. §152 ………………………………………………….. 37, 49, 50
28 U.S.C. §1337 ………………………………………….. 42, 45, 51, 52, 53
Rory Bahadur, Constitutional History, Federal Arbitration and Seaman’s Rights Sinking in a Sea of Sweatshop Labor, Journal of Maritime Law and Commerce, 39 JMARLC 157 (2008) …………………………………….. 27

STATEMENT OF JURISDICTION

Appellants’ action involved a hybrid action against Appellee employer and Appellee Labor Union, arising under section 301 of the Labor Management Relations Act(“LRMA”), 29 U.S.C. §185 (hereinafter referred to as “§ 301”), and under §159 of the Labor Management Relations Act (hereinafter “§159”). Further, the underlying substantive claims also were brought pursuant to the Seaman’s Wage Act, 46 U.S.C. §10313. Thus, the court below had jurisdiction by virtue of 28 U.S.C. §§1331 and 1333.

On September 10^th, 2009, the district court entered its order dismissing counts I and II of the Amended Complaint against Defendant/Appellee Celebrity with prejudice. Plaintiffs timely filed a notice of appeal of that initial district’s court order. However, on December 16, 2009, this Honorable Court dismissed the appeal sua sponte, for lack of jurisdiction, declaring that the district’s Court September 10, 2009 was not final. As a result, thereafter, on July 7, 2010, when the district court entered its order dismissing the case against Defendant/Appellee Labor Union and also its Final Judgment in favor of Defendants/Appellees Celebrity and the Labor Union (creating the requisite finality); appellants filed the instant appeal.

STATEMENT OF THE ISSUES

1. Whether the district court erred in finding that these federal labor laws do not apply to foreign seafarers working for a cruise line headquartered in Miami, Florida, particularly in light of the well-entrenched precedent that Seafarers are Wards of the Admiralty Courts and a favored class by Congress.

2. Whether the district court erred in ruling that when a foreign union acts on its Union members behalf in the United States pursuant to a collective bargaining agreement that chooses Miami as the forum for arbitration with respect to an employer (Celebrity) that is headquartered in Miami, the Union is not subject to Federal Labor laws, including the duty of fair representation.

STATEMENT OF THE CASE

1. The Seafarers, Celebrity and the Collective Bargaining Agreement.
Celebrity Cruises, Inc. (“Celebrity”) is a foreign corporation registered to conduct business in Florida. (R.E. Tab 1, ¶3). Celebrity is a resident of Florida and uses Miami, Florida as its base of operations for a passenger cruise line. (Id.). Dating as far back as 1986, Appellants (hereinafter “the Seafarers”), Indian nationals, worked as cabin stewards (sometimes referred to as stateroom attendants) aboard Celebrity Cruises, Inc.’s vessels (hereinafter “Celebrity”) vessels.

On May 14, 2001, Celebrity and Federazione Italianan Transporti, the seafarers’ labor union, entered into a Collective Bargaining Agreement (“CBA”) covering the Seafarers as part of a “bargaining unit” consisting of cabin stewards. Following enactment of the CBA, the Seafarers’ employment contracts expressly incorporated the CBA between Celebrity and the Union; setting forth that both Celebrity and the Seafarers were bound by its terms and conditions. See Copy of sign-on employment agreement (R.E., Tab 2) and Copy of CBA (R.E., Tab 3).

Both the CBA and the employment contracts established the seafarers compensation from two sources: base pay and gratuities. Since basic pay consisted of only $50.00 per month, the majority of the Seafarers’ wages were gratuities from passengers.[1] Under the gratuity payment scheme, set forth in the CBA, Celebrity was required to recommend to its passengers that they pay gratuities in accordance with an incorporated pay scale in the CBA – requiring that cabin stewards receive a total of USD $3.50 per passenger per day in wages. [2]Beginning on or before August 31, 2002, Celebrity placed “assistant cabin stewards” or “assistant stateroom attendants” on its ships. Although the CBA made reference to cabin stewards, waiters, and assistant waiters, nothing in the subject CBA contained any reference to an employment position titled “assistant cabin stewards” (R.E., Tab 1, 29). Further nothing in the CBA required cabin stewards to share their wages with the Chief Housekeeper. Despite the CBA’s provisions, clearly delineating Celebrity’s obligations, Celebrity breached the CBA by: 1) requiring the Seafarers to pay/share their earned wages with the assistant cabin stewards at a rate of $1.20 per passenger, per day, and 2) requiring the above named seafarers to pay/share their earned wages with the Chief Housekeeper, at a rate of $0.50 per passenger, per day. (R.E., Tab 1, 33).

Celebrity’s wrongful conduct continued until January 1^st 2005, when Celebrity changed the terms of the CBA.

2. Lobo v. Celebrity Cruises, Case No. 04-22132
In light of Celebrity’s breach of the CBA, on April 11, 2005, former Celebrity cabin steward Inacio Lobo brought a lawsuit against Celebrity for violations under the Seamen’s Wage Act, 46 U.S.C.§ 10313.[3] At that time, seafarer Lobo filed his complaint as a proposed class action, on his own behalf as well as on behalf of all other similarly situated Celebrity cabin stewards. The Court, however, never made a final decision/determination on the merits of Mr. Lobo’s wage claim under the Seamen’s Wage Act. Instead, the Court, citing the CBA’s arbitral provision, compelled Mr. Lobo to Arbitration. The Eleventh Circuit affirmed the District Court’s ruling.Lobo v. Celebrity Cruises, Inc., 488 F. 3d 891 (11th Cir. 2007).

3. Seafarer Lobo’s failed Arbitration
The court ordered arbitration between seafarer Lobo and Celebrity commenced on July 11, 2008 in Miami, Florida.The arbitral tribunal, however, never rendered a final decision/determination on the merits of Mr. Lobo’s wage claim. In fact, the first and only issue addressed at Mr. Lobo’s wage claim arbitration involved the issue of whether the CBA’s arbitral provision, which was silent regarding class grievances, prohibited Mr. Lobo’s claim to proceed as a “class arbitration.”

From the start, the legitimacy of the proceedings was compromised. The Union, required to fairly represent the interest of its member seafarers, conspired and colluded with Celebrity throughout the arbitration, frustrating Mr. Lobo’s and all other similarly situated seafarers’ ability to adjudicate the