The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
In this action against defendants for failure to pay back wages, plaintiff Tho Dinh Tran ("Tran") moves pursuant to Rule 15 of the Federal Rules of Civil Procedure for leave to file a Second Amended Complaint to add a cause of action under the Labor Management Relations Act § 301, 29 U.S.C.A. § 185(a).
His original Verified Complaint and his Amended Verified Complaint alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206-207, breach of contract, fraud and unjust enrichment.
For the reasons set forth below, plaintiff's FLSA claim is dismissed and plaintiff's motion for leave to file a second amended complaint is denied.
As set forth more completely in this Court's Opinion and Order of August 13, 1993, the following are among the undisputed facts in this case. Defendant Dinh Truong Tran ("Truong") is the president and major stockholder of defendants Alphonse Hotel Corp. d/b/a the Carter Hotels and Jude Hotel Corp. d/b/a the Hotel Kenmore, and exercises control over the daily operations and management of each hotel. Amended Complaint PP 12-13. In March 1982 plaintiff Tran emigrated to the U.S. under the sponsorship of Truong. Def.'s Rule 3(g) Statement P 4. Shortly after his arrival, Tran began working for the Hotel Carter under Truong's supervision at a rate of $ 300 per week, plus room and board. Id. Tran alleges he worked for the Hotel Carter from 1982 until "on or about" June 1988 when he quit. Pl.'s Amended Complaint P 25. Tran asserts that upon Truong's promise to pay plaintiff's claim for back wages, Tran resumed work for the defendant hotels in December 1988 and continued until July 1991, when he quit for a second and final time. Id. PP 27,30. In his complaint, Tran claims he did not receive any weekly pay until 1985, and after that only sporadically. Id. PP 20-22. Suit was brought in this Court on October 10, 1991, to recover the back pay allegedly owed to Tran.
The defendant hotels are members of the Hotel Association of New York City, Inc. ("Association"), which entered into a CBA ("1981 CBA") with the New York Hotel and Motel Trade Council, AFL-CIO ("Union") on March 17, 1981. A subsequent CBA ("1985 CBA"), entered into by the Association and the Union on June 26, 1985, superseded the 1981 CBA. The plaintiff became a beneficiary under the 1981 CBA 30 days after he began his employment with the defendant hotels. 1981 CBA at 3; Amended Complaint P 56. Indeed, Tran claims that at least as of "late April 1982" he was a member of the Union. Plaintiff's Rule 3(g) Statement in Opposition PP 16-17. There is no dispute that plaintiff was subject to the 1981 and 1985 CBAs, including their provisions on grievance procedures. 1981 CBA P 15; 1985 CBA P 26. The relevant provision in both CBAs reads 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 involving an Employer member of the Association shall in the first instance, be submitted to the Labor Manager who will be appointed and employed by the 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.
1981 CBA P 15; 1985 CBA P 26.
Six days after this Court's Opinion and Order of August 13, 1993, which dismissed plaintiff's state and common law claims, plaintiff invoked this section of the CBAs by a letter from counsel demanding that the Union arbitrate plaintiff's claim for back wages. Pl.'s counsel's Aff't in Support, Exh. D. After receiving a letter from the Union dated September 17, 1993, denying his request, plaintiff filed this motion for leave to file a second amended complaint.
A. Applicability of Arbitration to ...