Larry SKOWRONEK, Plaintiff-Appellee, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellant, 505 F.3d 482

McKEAGUE, J., delivered the opinion of the court, in which GILMAN, J., joined. CLAY, J. (pp. 489-98), delivered a separate dissenting opinion. OPINION McKEAGUE, Circuit Judge. In this case, we consider the validity of a maintenance rate that is applicable to ill crew members and is one of the terms of a collective bargaining agreement (CBA). The CBA contained, inter alia, a maintenance rate of $56.00 per week for ill crew members and a rate of $300.00 per week for injured crew members. Due to this differential treatment, the district court granted Plaintiff-Appellee Larry Skowro-nek, an ill crew member,

summary judgment and awarded him the injured crew member rate. We REVERSE. I. BACKGROUND The facts in this case are not in dispute. Skowronek was employed as a wheelsman aboard Defendant-Appellant American Steamship Company’s ship, the MW John J. Boland. On September 3, 2004, while at sea, Skowronek suffered a heart attack. He departed the ship at that time, and he remained unfit for duty until December 2, 2004. As a member of the Seafarer’s International Union while he was employed by American Steamship, the terms and conditions of Skowronek’s employment were governed by a CBA between his union and his employer.

The portion of the CBA relevant to this case provides: The Weekly Recovery Stipend shall be paid at the rate of three hundred dollars ($300.00) weekly and will be composed of fifty-six dollars ($56.00) maintenance (eight dollars ($8.00) per day contractual rate) and two hundred forty-four dollars ($244.00) contractual support benefit. Such payments are an obligation of the employer to an employee who suffered an injury aboard the ship covered under Maritime Law, which incapacitates him for at least seven (7) days and shall be due and payable not less frequently than each second week anniversary of the injury.

Such coverage shall be retroactive to the date of injury. The injured seaman must see a doctor chosen by the employer at reasonable times when requested. Unless mutually extended, payments will not exceed one (1) year. The payment of this benefit shall constitute satisfaction of the obligation to pay maintenance but otherwise shall not constitute a waiver or be deemed to lessen any legal or contractual rights held by such injured employee. It is agreed that the Weekly Recovery Stipend is separate and distinct from any other rights and options of the employee, except as specified above.

When a member of the unlicensed personnel is entitled to maintenance under the Maritime Law, he shall be paid maintenance at the rate of eight ($8.00) per day for each day or part thereof of entitlement, upon presentation of a medical abstract. This payment shall be made regardless of whether he or she has or has not retained an attorney, filed a claim for damages, or taken any other steps to that end. The payments due hereunder shall be paid in a timely manner, generally not less frequently than twice monthly. Skowronek v. Am. S.S. Co., No. 05-73961, 2006 WL 1494947, at *1 (E.D.Mich. May 25, 2006).

Thus, the CBA provides that injured crew members are entitled to payments of $300.00 per week for the time they are unfit for duty. That amount includes an $8.00 per day maintenance payment. Ill crew members, however, are entitled only to the $8.00 per day maintenance payment. American Steamship therefore paid Skowronek $56.00 per week during the period he was unfit for duty. On September 8, 2005, he commenced an action in Michigan state court in which he sought $300.00 per week for the period. He complained that the CBA discriminated against ill crew members.

American Steamship removed the case to the United States District Court for the Eastern District of Michigan. Both parties filed motions for

summary judgment, and on May 25, 2006, the district court granted Skow-ronek’s motion and denied American Steamship’s. The latter filed a timely appeal. II. ANALYSIS This Court reviews a district court’s grant of

summary judgment under the de novo standard. Nichols v. Moore, 477 F.3d 396, 398 (6th Cir.2007).

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The district court must draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Under United States maritime law, “maintenance” is the shipowner’s duty to provide food and lodging to a seaman who becomes ill or injured while in the service of the ship. Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). The right to maintenance is related to the right to cure, which is “care, including nursing and medical attention during such period as the duty continues.” Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 82 L.Ed. 993 (1938). The shipowner’s duty to pay maintenance continues until either the seaman has recovered or his condition is declared permanent.

Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975). The duty exists irrespective of both whether the shipowner was negligent and whether the illness or injury is job-related. Id. at 4, 95 S.Ct. 1381. Maintenance has traditionally been said to serve three purposes: “(1) to protect the poor and improvident seaman while ill in foreign ports, (2) to encourage shipowners to protect the seaman’s safety and health while in service, and (3) to induce employment in the merchant marine.” Gardiner v.

Sea-Land Serv., Inc., 786 F.2d 943, 946 (9th Cir.1986) (citing Vella, 421 U.S. at 3-4, 95 S.Ct. 1381). The issue in this case is whether the maintenance rate of $56.00 per week applicable to ill crew members is enforceable even though injured crew members are entitled to a rate of $300.00 per week, where those provisions are part of a CBA that contains several other terms governing the working conditions of union crew members. We hold that it is.

Federal appellate courts have all but uniformly concluded that maintenance rates specified in a CBA will be enforced, regardless of whether they actually cover a crew member’s daily food and lodging expenses. Indeed, in addition to our decision in Al-Zawkari v. Am. S.S. Co., 871 F.2d 585, 588 (6th Cir.1989), the First, Second, Fifth, Ninth, and Eleventh Circuits have so held. The Third Circuit’s decision in Barnes v. Andover Co., L.P., 900 F.2d 630, 640 (3d Cir.1990), stands alone in holding to the contrary.

The analysis in Gardiner, on which we and our sister circuits have relied, considered the enforceability of maintenance rates in the context of national labor policy. See 786 F.2d at 948. Specifically, the Ninth Circuit noted that such policy is predicated on the assumption that employees bargain most effectively by acting through freely chosen labor organizations. Id.

Consequently, it would not “lightly embrace the repudiation of contractual obligations enumerated in a collective bargaining agreement”; rather, it would “choose the rule that w[ould] promote the enforcement of collective bargaining agreements.” Id. The court further emphasized that “it is clearly the policy of our national labor legislation to encourage both labor and management to negotiate contracts that will effectively regulate every aspect of their complex relationship.” Id. at 948-49.

Thus, because the parties in that case included a maintenance rate in the CBA, “[t]he national labor policy of promoting and encouraging collective bargaining agreements would be unduly compromised were we to conclude” that the rate was anything but “a consequence of the normal ‘give and take’ process of collective bargaining”; therefore, the rate is “entitled to the same reliability accorded to other terms and conditions within the same agreement.” Id. at 949.

The Ninth Circuit emphasized that the maintenance rate “is but one of many elements contained within the Union contract and over which the parties negotiate, and there may be a considerable amount of ‘give and take’ exercised by the parties in coming to a final agreement on all of the elements.” Id. Consequently, the maintenance rate’s adequacy “should not be examined in isolation by the court because the determination of its adequacy in relation to the whole scheme of benefits has already been made by the union and the seamen who voted for the contract.” Id.

Therefore, Gardiner held that “when a benefits package includes an express reference to a precise rate of maintenance, the adequacy of this rate, considered in isolation, is not a subject for judicial speculation when the rate is part of a total package of wages and benefits resulting from the process of collective bargaining.” Id. Like many of our sister circuits, we have found Gardiner’s, reasoning persuasive, and we have accordingly adopted it.

In Al-Zawkari, the plaintiff crew member who had become ill aboard the defendant’s ship instituted an action in which he argued that the maintenance paid to him was both insufficient and “in conflict with the intent and purpose of the Supreme Court’s decisions imposing the maintenance requirement upon shipowners.” 871 F.2d at 586. The plaintiff was a member of the Seafarers’ International Union, and the union had a CBA with the defendant providing that the plaintiff was entitled to maintenance of $8.00 per day. Id. at 587.

Relying heavily on Gardiner, we affirmed the district court’s judgment in favor of the defendant. Id. at 588, 590. We began by noting that the duty to provide maintenance can be modified and defined by contract even if it cannot be entirely abrogated. Id. at 588 (citing Gardiner, 786 F.2d at 949). We then adopted Gardiner’s rationale in emphasizing that “when a benefits package includes an express reference to a precise rate of maintenance, it must be presumed that this rate was arrived at by negotiation.” Id. at 588 (emphasis added).

Thus, we reasoned that maintenance rates, like any other benefit that is the ultimate result from give and take collective bargaining between parties, should be binding on them. Id. We therefore concluded that the $8.00 per day rate fixed by the CBA was enforceable, as we also noted that “[cjourts generally have decided that it is more appropriate for the courts to enforce privately negotiated contractual rates of maintenance, rather than engaging in overt legislation of particular dollar figures.” Id. Al-Zawkari provides strong guidance for our conclusion that the district court erred.

As set forth above, the CBA includes a maintenance rate of $8.00 per day. Therefore, a presumption that the rate was arrived at by negotiation attaches. See Al-Zawkari, 871 F.2d at 588. Skow-ronek has not rebutted that presumption. Indeed, he does not allege that the agreement was not legitimately negotiated, that the CBA was unfair as a whole, or that he was not adequately represented by the union. It therefore follows that we must conclude that the maintenance rate specified in the CBA was the result of “give and take collective bargaining between the parties.” See id.

Consequently, that rate is binding on the parties pursuant to Al-Zawkari. Id. Although courts are not to usurp the collective bargaining process by selecting various portions of a CBA with which they do not agree and legislating particular dollar figures, see id., this is not to say that a plaintiff crew member can never overcome the presumption of negotiation afforded to the terms of a collective bargaining agreement.

However, pursuant to Al-Zawkari, the burden properly rests on the plaintiff to produce evidence that a bona fide negotiation did not take place, that the CBA was unfair, or that he was not adequately represented. 871 F.2d at 588; see also Ammar, 342 F.3d at 146; Baldassaro, 64 F.3d at 213; Gardiner, 786 F.2d at 949. Skowronek has only presented a portion of the CBA showing that different payments apply to injured and ill crew members. This evidence does not permit us to determine the fairness of either the negotiation or the CBA, or the adequacy of the union’s representation of Skowronek.

As Gard-iner emphasized, “[t]he adequacy of the maintenance rate should not be examined in isolation by the court because the determination of its adequacy in relation to the whole scheme of benefits has already been made by the union and the seamen who voted for the contract.” 786 F.2d at 949. Although the CBA here provides a different level of payment for ill and injured crew members, that distinction does not prevent Al-Zawkari from providing strong persuasive authority.

The court below, focusing on that distinction, relied heavily on a decision by another district court that invalidated a provision that “discriminate^] between sick and injured sailors by withholding payment to sick sailors.” Vitco v. Joncich, 130 F.Supp. 945, 950 (S.D.Cal.1955), aff'd, 234 F.2d 161 (9th Cir.1956). However, that case preceded both Al-Zawkari and Gardiner by several decades, and the Second Circuit recently concluded that the need for courts to intervene to protect seamen “has been substantially lessened.” Ammar, 342 F.3d at 146.

Additionally, requiring collective bargaining agreements to contain the same payments for ill and injured crew members contravenes this Court’s recognition that it is not appropriate for courts to engage in overt legislation of particular dollar figures in connection with privately negotiated payments. See Al-Zawkari, 871 F.2d at 588.

The district court’s application of Vitco to the instant case also runs afoul of Gard-iners holding that “when a benefits package includes an express reference to a precise rate of maintenance, the adequacy of this rate, considered in isolation, is not a subject for judicial speculation when the rate is part of a total package of wages and benefits resulting from the process of collective bargaining.” Gardiner, 786 F.2d at 949.

Indeed, to the extent that the CBA in the instant case governed the crew members’ wages, hours, and working conditions in addition to maintenance rates, examining the adequacy of the ill crew members’ maintenance rate, whether in comparison to that of the injured crew members or otherwise, is inappropriate. The difference between the two rates indicates, if anything, that the parties actually considered and negotiated a departure from the typical rate of $8.00 per day. See Ammar, 342 F.3d at 143.

Furthermore, invalidating the CBA in the instant case because of “discrimination” would create a rule that allows crew members to bargain for an across-the-board $8.00 maintenance rate per Al-Zawkari, but prevents crew members from increasing benefits for injured crew members absent an attendant increase for ill crew members. Such a rule, of course, is contrary to the labor law policy of enforcing freely negotiated contracts, and would consequently undermine Gardiner and, by implication, Al-Zawkari. Finally, we note that the district court also erred because Vitco is distinguishable from the instant ease.

Indeed, the present dispute, unlike Vitco, see 130 F.Supp. at 950, does not involve the entire abrogation of the maintenance payment; rather, it merely provides a lesser payment to ill crew members vis-a-vis injured crew members. This distinguishing feature is critical because this Court has emphasized that “[wjhile the duty to provide maintenance payments cannot be entirely abrogated, as an implied contractual provision, the right to maintenance can be modified and defined by contract.” Al-Zawkari, 871 F.2d at 588; see also Gardiner, 786 F.2d at 949.

The dissent’s several arguments in support of its conclusion that the district court should be affirmed fail to provide reason for us to depart from the overwhelming authority-from this Court and its sister circuits-cited above. First, the dissent asserts that if there were evidence in the record that the ill and injured crew members’ maintenance payments were “actually negotiated,” the majority position “might follow,” yet it “refus[es] to infer actual good faith bargaining” and it therefore focuses its scrutiny on the two-tiered structure of maintenance rates while disregarding all other terms of the CBA. Dis.

Op. at 495. The dissent’s approach is contrary to this Court’s precedent, and for that reason alone, it must be rejected. See Al-Zawkari, 871 F.2d at 588 (“[WJhen a benefits package includes an express reference to a precise rate of maintenance, it must be presumed that this rate was arrived at by negotiation.”) (emphasis added).

But, undeterred by Al-Zawkari, the dissent continues by incorrectly stating, without authority, that the burden is on the shipowner to present evidence that the maintenance rate was specifically negotiated because “there is certainly no justification for making the seaman demonstrate an unfair procedure, as opposed to requiring the shipowner to demonstrate a fair one.” Dis. Op. at 496. The justification for placing the burden on the seaman, however, is the presence of the maintenance rate in a mutually agreed upon CBA that governs the relationship between the shipowner and the seaman.

See Gardiner, 786 F.2d at 948 (explaining that courts “will not lightly embrace the repudiation of contractual obligations enumerated in a collective bargaining agreement and will choose the rule that will promote [their] enforcement”) (citation omitted). Thus, in the absence of proof offered by the seaman that the “CBA as a whole is unfair or that this seaman was not adequately represented by the Union,” the maintenance rate is binding on the parties. Baldassaro, 64 F.3d at 213.

Requiring the shipowner to prove that the individual maintenance rate was specifically negotiated overlooks the fact that the rate is “part of a total package of wages and benefits resulting from the process of collective bargaining.” Gardiner, 786 F.2d at 949. We likewise refuse to countenance a rule requiring the shipowner to prove that a maintenance rate provision in a collective bargaining agreement was specifically negotiated. Several of our sister circuits afford the same presumption of negotiation as Alr-Zawkari in this context.

Indeed, the Ninth Circuit specifically rejected the approach that the dissent employs today, as it noted that the plaintiff crew member in that case did not allege that the CBA as a whole was unfair or inadequate, which was “significant because we do not believe the rate of maintenance specified in the collective bargaining agreement can be examined in isolation.” Gardiner, 786 F.2d at 949; see also Ammar, 342 F.3d at 146 (emphasizing that the plaintiff did not assert that the agreement was not legitimately negotiated, that his interests were not adequately represented, that the agreement as a whole was unfair, that the process was unfair, or that the maintenance provision was not a subject of the negotiation); Baldassaro, 64 F.3d at 213 (noting that the plaintiff did not allege that the collective bargaining agreement was unfair as a whole or that he was not adequately represented by the union).

Just as in those cases, Skowronek makes no such allegations. Accordingly, the presumption of give and take negotiation attaches, and from that presumption it follows that the specific maintenance rate agreed upon by the parties is binding on them. Al-Zawkari, 871 F.2d at 588. The dissent also asserts that it is “reluctant to give significant weight to the argument that the economic strength of unionized seamen requires the Court to acquiesce in the terms of the CBA.” Dis. Op. at 494.

In doing so, the dissent questions the premise upon which national labor policy has been built according to the Supreme Court, namely that by acting through a labor organization freely chosen by the majority, employees have the most effective means of bargaining for improvements in working conditions. See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).

It also rejects the finding of one of our sister circuits that seamen “are a well-organized work force with sophisticated leaders who constantly press for better working conditions” as well as that circuit’s conclusion that “the need for judicial intervention to protect seamen has been substantially lessened.” Ammar, 342 F.3d at 146. It therefore follows that by insisting that the courts intervene in privately negotiated CBAs “to ensure that seamen are economically protected against the hardships that accompany illness or injury,” Dis.

Op. at 494, the dissent rejects the reasoning upon which our decision in ANZawkari and our five sister circuits cited above is based. As stated above, our precedent, like that of our sister circuits, affords a presumption of negotiation to a rate of maintenance specified in a collective bargaining agreement and recognizes that it is not appropriate for courts to engage in legislation of dollar figures in connection with privately negotiated maintenance rates. Al-Zawkari, 871 F.2d at 588.

Because Skowronek has failed to produce any evidence demonstrating that the CBA was not a legitimately negotiated agreement, that his interests were not adequately represented in the negotiation process, or that the agreement as a whole is unfair, he has not rebutted the presumption of negotiation. Accordingly, our precedent requires us to give binding effect to the maintenance rate at issue. Id. We refuse to examine it in isolation, as it is but one of many terms of the CBA. III.

CONCLUSION For the foregoing reasons, we REVERSE the decision of the district court and REMAND the case for further proceedings consistent with this opinion. . See Ammar v. United States, 342 F.3d 133, 147 (2d Cir.2003); Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1292 (11th Cir.2000); Baldassaro v. United States, 64 F.3d 206, 212-13 (5th Cir.1995); Macedo v. F/V Paul & Michelle, 868 F.2d 519, 522 (1st Cir.1989); Gardiner, 786 F.2d at 949-50. .

For many of the same reasons, we find unpersuasive the dissent's arguments that the district court should be affirmed because seamen are wards of admiralty courts and because neither the Supreme Court nor any federal appellate court has addressed the precise factual scenario of the instant case. We also note that this Court has rejected an argument similar to the one the dissent employs today.

See Al-Zawkari, 871 F.2d at 586 (rejecting the plaintiff crew member's contention that the maintenance rate paid to him was "in conflict with the intent and purpose of the Supreme Court's decisions imposing the maintenance requirement upon shipowners”).