Gheorghita v. Royal Caribbean Cruises, Ltd.

• Citation: 93 F.Supp.2d 1237
• Decision Date: 10 February 2000
• Docket Number: No. 98-2156-CIV-H.,98-2156-CIV-H.
• Parties: Christina GHEORGHITA, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., d/b/a Royal Caribbean International, Defendants.
• Court: U.S. District Court — Southern District of Florida

93 F.Supp.2d 1237

Christina GHEORGHITA, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., d/b/a Royal Caribbean International, Defendants.

No. 98-2156-CIV-H.

United States District Court, S.D. Florida.

February 10, 2000.

Charles R. Lipcon, Miami, FL, for plaintiff.

Mercer K. Clarke, Miami, FL, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HOEVELER, Senior District Judge.

THIS CAUSE was tried before the undersigned without a jury on November 15 and 16, 1999. Having reviewed pertinent portions of the file and the various documents submitted as evidence, and having heard and considered the testimony of the witnesses and the arguments of the parties at trial, the Court now makes the following findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P.

BACKGROUND

This proposed class action was filed on behalf of Christina Gheorghita and a purported class of tip-earning employees¹ who did not receive tip income while on sick leave.² Count I seeks "maintenance and cure", a traditional maritime remedy, in the form of "reasonably anticipated lost tips" as part of the employees' sick or unearned wages.³ Count II seeks a declaratory judgment that the pertinent collective bargaining agreement (between the Norwegian Seaman's Union and Defendant) does not apply to Plaintiff and the class of non-Norwegian employees which she purports to represent.

Defendant argues that Plaintiff agreed to the terms of the collective bargaining agreement when she started her employment as a cabin stewardess, and that Plaintiff was paid all of the unearned wages that she was due under that agreement.

FINDINGS OF FACT

1. Christina Gheorghita was employed by Royal Caribbean as a cabin stewardess on the vessel Enchantment of the Seas as of December 7, 1997, the date on which she signed the "Sign-On Agreement". Plaintiff's Exhibit (hereinafter "Exh.") 1-A, Defendant's Exh. 6.

2. At the appropriate place on that Agreement, Gheorghita signed a statement indicating that "I have received a copy of the terms and conditions of employment which I understand and accept." Pl's Exh. 1-A, Def's Exh. 6.

3. Gheorghita also signed a form titled "Specific Information Pertaining to Certain Terms and Conditions of Employment". On that form is the following statement: "I acknowledge receiving a copy of the Collective Bargaining Agreement" (emphasis in original). Pl's Exh. 1-B, Def's Exh. 5.

4. On February 19, 1996, a representative of Royal Caribbean Cruises Ltd. and a representative of the Norwegian Seamen's Union signed the Protocol adopting "A Collective Bargaining Agreement Between Royal Caribbean Cruises Ltd and Norwegian Seamen's Union". Def's Exh. 1. That Collective Bargaining Agreement was in effect at the time Gheorghita entered into her employment agreement on December 7, 1997. Def's Exh. 1.

5. The Collective Bargaining Agreement, which was signed by the same individuals who signed the protocol, was reached after negotiations between Royal Caribbean and the Norwegian Seamen's Union which occurred on nine separate occasions between October 18, 1995, and February 19, 1996. Testimony of Thomas Murrill (Vice President of Human Resources for Defendant).

6. The Collective Bargaining Agreement is patterned after an international model agreement for transport workers, and was approved by the International Transport Worker's Federation, of which the Norwegian Seaman's Union has been a member since approximately 1910. The Agreement meets or exceeds standards adopted by that Federation. Testimony of Johan Oyen (Director of Cruise Operations for the Norwegian Seaman's Union).

7. Gheorghita never voted on union representation nor paid dues directly to the Norwegian Seamen's Union ("Union"). Testimony of Gheorghita. Non-Norwegian employees of Defendant do not participate in Union voting. Defendant paid annual dues of approximately $300,000 to the Norwegian Seamen's Union on behalf of approximately 7,000 non-Norwegian and non-Filipino employees in the catering division of the company. Testimony of Oyen.

8. According to the Sign-On Agreement and the statement regarding the Terms and Conditions of employment, Plaintiff had a contract of six months duration with Defendant, beginning on December 7, 1997, and ending on June 7, 1998, to work on the "Enchantment of the Seas" as a cabin stewardess. Pl's Exh. 1-A, Def's Exhs. 5, 6. The Collective Bargaining Agreement (Def's Exh. 1) provides that employees shall sign on for an "agreed period", not exceeding ten months, with the length of the period to be decided by the Defendant, Article 4, ¶ 1. The Agreement also provides that the contract can be terminated "if the Employee becomes ill or injured and has to sign off the vessel", Article 5, ¶ 3, and that the employment agreement "will be regarded as being terminated from the date the Employee signs off the vessel", Article 9, ¶ 5. Moreover, the contract can be terminated by Defendant without cause or notice, Article 5, ¶ 3, provided that the employee receives severance pay as indicated.⁴

9. Gheorghita was first hired by an agent of Royal Caribbean in Romania, on or about January 22, 1996, and had worked during two contract periods prior to the period which is at issue. Pl's Exh. 1, Testimony of Georghita.

10. Royal Caribbean's policy was to require hiring agents to provide a copy of the Collective Bargaining Agreement to each newly hired person, and to distribute copies of the Agreement to employees at orientations on board the vessel. Testimony of Malcolm Lynch (Director of Hotel Human Resources for Defendant). Further, Royal Caribbean posted a notice outside the crew purser's office stating that the Agreement was available for review. Testimony of Lynch.

11. Although Gheorghita denies ever noticing this sign or receiving a copy of the Collective Bargaining Agreement, the Court finds that Gheorghita had ample opportunity to obtain a copy of the Agreement even if she was not provided with a copy at the time she signed the Specific Information Pertaining to Certain Terms and Conditions of Employment, acknowledging receipt of the Agreement. Pl's Exh. 1-B, Def's Exh. 5.

12. Gheorghita's Sign-On Agreement specified that she would be earning monthly actual pay of $50, and a "permanent monthly guaranteed" pay of $721. Pl's Exh. 1-A, Def's Exh. 6. The Collective Bargaining Agreement, Article 2, ¶ 2, provides that employees in the category which includes Cabin Stewardess (Gheorghita's position) "shall have Gratuities per day from each passenger". The Minimum Pay Scale appended to that Agreement indicates that a cabin stewardess would receive a minimum of $721 monthly basic pay and overtime "inclusive of gratuities provided by passengers other than $50 per month ... to be paid by employer". Def's Exh. 1, Minimum Pay Scale.

13. Defendant advises its passengers that the recommended tips for cabin stewardesses are $3.50 per day for each person in the room. Testimony of Gheorghita.⁵ Tips are collected by each cabin stewardess directly from the passengers (through the use of an envelope left in each room) at the end of each cruise voyage, without supervision by Defendant. Gheorghita's tips totalled approximately $2,500/month (approximately $82.19/day). Testimony of Gheorghita.

14. Plaintiff was injured or became ill at some time in January 1998 and reported to the ship's doctor on Saturday, January 24, 1998, with "flu symptoms", claiming weakness and abdominal pain. She was declared "fit for duty". Pl's Exh. 4. Plaintiff did not want to miss work the next day because she wanted to collect her tips for the week's voyage which was just ending. Testimony of Gheorghita.

15. On Sunday, January 25, 1998, Plaintiff reported to the ship's doctor complaining of exhaustion, headache and pelvic pain. She was confined to her cabin on that day — a day on which the ship departed Miami to begin a new voyage — but the medical report does not declare her "not fit for duty", nor does it include a referral for a shoreside physician. Pl's Exh. 4, Testimony of Gheorghita.

16. On Sunday, February 1, Gheorghita saw a shoreside physician, who made no finding as to whether she was fit for duty. Pl's Exh. 4. She returned to the ship. Testimony of Gheorghita.

17. On Wednesday, February 4, Plaintiff visited the ship's doctor with a complaint of lower back pain, but was declared "fit for duty", and was given a "Shoreside referral date" of February 8, 1998. Def's Exh. 4.

18. On Friday, February 6, Plaintiff visited the ship's doctor, who determined that she was "fit for duty" but that she should work at a sitting down position. Pl's Exh. 4. Def's Exh. 3. Gheorghita subsequently worked answering phones at the bell station. Testimony of Gheorghita.

19. Gheorghita left the vessel on February 8, 1998, and never reported back for work. Testimony of Gheorghita.

20. Plaintiff was not fit for duty from Sunday, January 25 until Saturday, January 31, 1998 (seven days), and testified that she did not collect tips at the end of that voyage. Although the shoreside physician did not explicitly declare her unfit for duty on Sunday, February 1, it appears that Plaintiff was still incapacitated until she visited the ship's medical office on Wednesday, February 4, at which time she was declared "fit for duty". Thus, she was unable to perform her duties for a total of ten days.

21. Gheorghita either worked for two days, February 4 and 5, or failed to report for work on those days despite being fit for duty. She then again visited the ship's medical office and was deemed fit for duty but was directed to perform alternate work (sitting down, bell station attendant) from Friday, February 6, until Sunday, February 8 (two days). She testified that she did not collect her tips on Sunday, February 8, and that the person who cleaned cabins on her behalf received the tips from that voyage — without sharing them with her. Testimony of Gheorghita.

22. As the Enchantment of the Seas sailed each...