Tran v. Tran, No. 91 Civ. 6818 (RPP).
| Decision Date | 17 August 1993 |
| Docket Number | No. 91 Civ. 6818 (RPP). |
| Citation | 860 F. Supp. 91 |
| Parties | Tho Dinh TRAN, Plaintiff, v. Dinh Truong TRAN and the Alphonse Hotel Corp. d/b/a the Carter Hotels, and Jude Hotel Corp., d/b/a the Hotel Kenmore, Defendants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Randy A. Dusek, New York City, for plaintiff.
Lichtenberg & Ginach, P.C. by Daniel M. Isaacs, New York City, for defendants.
This is an action brought by Plaintiff Tho Dinh Tran ("Tran") for failure to pay back wages in which plaintiff alleges violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 206-207, breach of contract, fraud and unjust enrichment, as well as violations of New York Labor Law section 198. Defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing plaintiff's claims. For the reasons set forth below, Defendants' motion for summary judgment is granted in part and denied in part.
Defendant Dinh Truong Tran ("Truong") is the president and major stockholder of the defendant hotels, the Hotel Carter and the Hotel Kenmore, and exercised control over the daily operations and management of each hotel. Am.Compl. ¶ 12. In March 1982, plaintiff emigrated to this country from Vietnam by way of Hong Kong under the sponsorship of Truong. Three days after his arrival, plaintiff began working for defendant Hotel Carter under the supervision of Truong.
The Hotel Association of New York City, Inc. (the "Employer"), of which defendant hotels are members, and the New York Hotel and Motel Trade Council, AFL-CIO (the "Union") entered into a collective bargaining agreement on March 17, 1981 (the "1981 CBA"). The 1981 CBA was superseded and annulled by a collective bargaining agreement entered into by the Employer and the Union on June 26, 1985 (the "1985 CBA").1 Each CBA "provides that any employee of a signatory to the CBA who works more than thirty days, automatically becomes a Union member, subject to" the CBA. Pl.'s 3(g) Statement ¶ 16. For purposes of this summary judgment motion the parties agreed at oral argument that as of April 1982 plaintiff became a member of the Union until 1985, and that his Union membership resumed in 1989.
During the term of his employment from 1982 to 1988 and in exchange for his work for defendant, plaintiff received room and board and $300 per week pay. According to plaintiff "room and board are not charged to employees of defendants whom sic live at the hotels of defendants." Id. ¶ 13.
Plaintiff worked for the defendants from March 1982 to June 1985, at which time he quit due to Truong's alleged refusal to pay plaintiff his full wages since 1982. Plaintiff alleges that upon his resignation he demanded his back wages from defendants. Am. Compl. ¶ 25.2
Defendant Truong is alleged thereafter to have made oral promises to plaintiff on behalf of Truong and the corporate defendants that defendants would pay him his full wages as well as all back wages due plaintiff as of 1982 if he returned to work for the defendant hotels. Plaintiff returned to work for defendants in December 1988 and was employed at the Hotel Carter. He remained an employee of defendants until July 1991. On or about July 4, 1991, however, Plaintiff again resigned his position as an employee of defendants on the ground that "defendants continued to breach their agreement to pay his back wages from 1982 to the present." Pl.'s 3(g) Statement ¶ 10.
Both section 15 of the 1981 CBA and section 26 of the 1985 CBA require arbitration of all disputes between the defendant employers, who are signatories of the CBAs, and employees of the defendants who are members of the Union. Both sections read as follows:
See Truong Aff. Ex. C.
There is no dispute that plaintiff did not attempt to grieve or seek to arbitrate his disputes with defendants as required by the 1981 and 1985 CBAs. See Tran Dep. at 101, Truong Aff.Ex. D. Instead, on October 10, 1991, plaintiff filed suit in Federal Court to recover back wages and punitive damages from defendants.
In his first claim for relief, which alone is brought under the FLSA, 29 U.S.C. § 206-207, plaintiff claims that he "performed work, labor and services for which schedules and rates of pay are provided for in the" CBAs, but that "Defendants have never paid plaintiff at any time in conformity with those schedules and rates of pay." Pl.'s 3(g) Statement ¶¶ 19-20. Specifically, plaintiff claims that defendants intentionally failed to pay any wages to plaintiff other than room, board and food for the period March 1982 to August 1985, made only partial payments to plaintiff from September 1987 to August 1990, and failed to pay any wages from September 1990 to July 1991. Am.Compl. ¶ 35. Plaintiff also alleges that he is entitled to recover for "vacation and holiday time or pay" which defendants were obligated to pay him "under the Collective Bargaining Agreement." Id.
In his second claim for relief, plaintiff claims that in December 1988 defendants promised plaintiff to pay all his back wages from 1982 if he resumed working for defendants, but that defendants failed thereafter to pay plaintiff his back wages and pay. Id. ¶¶ 40-41; Pl.'s 3(g) Statement ¶¶ 19-20.
In his third claim for relief, plaintiff further claims that defendants' promises to pay him his back wages and full pay thereafter if he returned to work for them constitute fraud because at the time these promises were made defendants had no intention of abiding by them. Am.Compl. ¶ 44.
In his fourth claim for relief, for unjust enrichment, plaintiff claims that "Defendants have unjustly reaped the benefits from the work, labor and services performed for them by the plaintiffs sic." Id. ¶ 49.
In the fifth claim for relief, plaintiff alleges that defendants breached the CBAs by failing to pay plaintiff the wages owed him under the CBA, and by requiring "plaintiff to work longer hours than permitted under the Collective Bargaining Agreement, and imposing harsh working conditions on plaintiff which were prohibited by the Collective Bargaining Agreement." Id. ¶ 58. Finally, count six of the amended complaint claims that defendants violated New York Labor Law § 198.
Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and the Court must view the facts in the light most favorable to the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Defendants move to dismiss plaintiff's state law and common law claims, as well as certain of plaintiff's claim under the FLSA. In support of their motion for summary judgment dismissing plaintiff's state law and common law claims, defendants argue that (1) plaintiff failed to arbitrate the current dispute as required by the 1981 and 1985 CBAs, and therefore all of plaintiff's claims should be dismissed; and (2) plaintiff's state law claims are preempted by the FLSA. Because the Court finds that plaintiff failed to utilize the Union grievance and arbitration procedures provided in the CBA, it need not address the issue of preemption or any remaining issues.
It is well-settled that "as a general rule in cases in which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). Only when the union "refuses to press or only perfunctorily presses the individual's" state law or common law claim "may the claimant seek other forms of redress." Id.; see Drywall Tapers & Pointers Local 1974 v. Local 530, 954 F.2d 69, 77 (2d Cir.1992). But unless the collective bargaining agreement between the employee's union and his employer provides otherwise — for example, by stating expressly that arbitration is not the exclusive remedy at court — "there can be no doubt that the employee must afford the union the opportunity to act on his behalf." Id.
The general rule requiring employees first to exhaust the modes of redress provided by a collective bargaining agreement before suing in federal court serves several purposes. First, it advances the union's interest in prosecuting employee grievances, enhances the union's prestige with employees, and "complements the union's status as exclusive bargaining representative by permitting it to participate actively...
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