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THO DINH TRAN v. DINH TRUONG TRAN

August 13, 1993

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.



The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P. PATTERSON, JR., U.S.D.J.

 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.

 BACKGROUND

 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. P 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 The 1981 CBA was superseded and annulled by a collective bargaining agreement entered into by the Employer and the Union on June 26, 1985 (the "1985 CBA"). *fn1" 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 P 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. P 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. P 25. *fn2"

 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 P 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:

 
COMPLAINTS, GRIEVANCES AND ARBITRATION
 
All complaints, disputes or grievances arising between the parties hereto involving questions or interpretation or application of any clause of this Agreement, or any acts[,] conduct or relations between the parties, directly or indirectly, which shall not have been adjusted, by and between the parties involved shall be referred to a permanent umpire to be known as the Impartial Chairman, and his decision shall be final and binding upon the parties hereto. Any such complaint, dispute or grievance shall in the first instance, be submitted to the Labor Manager who will be appointed and employed by the [Employers' Hotel Association] to consider and adjust with a duly accredited representative of the Union, for their joint consideration and adjustment; if they agree, such decision shall be binding on the parties hereto. Should the matter not be resolved by the Labor Manager and the representative of the Union, it shall then be referred to the Impartial Chairman as aforesaid.

 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 ...


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