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HUSSEIN v. SHERATON NEW YORK HOTEL

June 1, 2000

MAMDOUH HUSSEIN, PLAINTIFF,
V.
SHERATON NEW YORK HOTEL; HOTEL TRADE COUNCIL; MARVIN JEFFERSON; VITTO J. PITTA; HOTEL ASSOCIATION NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Sidney H. Stein, U.S.D.J.:

OPINION

BACKGROUND

Since 1982, plaintiff has been a member of Local 6, Hotel Employees and Restaurant Employees Union ("Local 6"). Local 6 is one of several local unions that form the New York Hotel and Motel Trade Council ("Union"). In 1985 the Union entered into a collective bargaining agreement ("CBA") with the Association, which represents 162 hotels in New York City. See Plaintiff's attached exhibit, Office of the Impartial Chairman, No. 85-211, at 1 (Nov. 21, 1985) ("Decision No. 85-211");*fn1 see also Complaint at ¶ 21. The CBA separated waiters designated to serve banquets into three categories: A-list, B-list, and roll call. See Decision No. 85-211, at 1-2. Hotels needing banquet waiters would fill vacancies by first selecting names from the A-list. See Decision No. 85-211, at 2-3. Once the names from the A-list were exhausted, the hotels would fill vacancies with names from the B-list. See Decision No. 85-211, at 2-3. Finally, after exhaustion of the B-list, if vacancies still existed, the Union would supply banquet waiters from the list of waiters on the roll call. See Decision No. 85-211, at 2-3.

Sometime after the CBA was signed, the Sheraton Hotel and its "regular waiters" (i.e., banquet waiters on the A-list and B-list) agreed that gratuities would be distributed to banquet waiters based on the number of "shares" each waiter received, rather than the number of "covers," or guests, each waiter served. See Plaintiff's attached exhibit, Office of the Impartial Chairman, No. 93-13, at 1 (Feb. 2, 1993) ("Decision No. 93-13"). The shares were calculated by giving two shares to each waiter serving a single table (usually 8-12 guests) and three shares to each waiter serving a "split."*fn2 Although the roll call waiters were not parties to the agreement, the Sheraton Hotel calculated their gratuity based on the share system.

In accordance with the CBA, Hussein, a roll call waiter, filed a grievance challenging the roll call waiters' inclusion in the share system. On February 2, 1993, the Impartial Chairman held that the agreement between the Sheraton Hotel and its "regular waiters" did not apply to roll call waiters and therefore, the Sheraton must exclude roll call waiters from participating in the share system. Decision No. 93-13, at 1-2. The Impartial Chairman also held that a roll call waiter's gratuity must be based on the number of guests actually served by the waiter and not the number of shares. Decision No. 93-13, at 1-2.

The Hotel has complied with the . . . (1993) decision for over 6 years and it is unambiguous and requires no clarification. If this grievance is considered an application for reopening and reconsideration, the Union does not claim there is any new evidence or newly discovered facts which would warrant reopening. Instead, the Union's contention, based apparently upon the dissatisfaction of two roll call waiters, is that the . . . decision is unfair and inequitable to those roll call waiters. Under the criteria and long standing precedents established by decisions of this Office, in dealing with such applications . . . the Union's contention does not warrant reopening and reconsideration.

Office of the Impartial Chairman, No. 99-12, at 1-2 (Mar. 2, 1999) ("Decision No. 99-12").

On April 1, 1999, Hussein filed this action claiming that the defendants are "paying roll call waiters less than steady employees [A-list and B-list waiters]." Complaint at ¶¶ 6, 10. On August 3, 1999, Magistrate Judge Michael H. Dolinger, to whom the action had been referred for general pretrial supervision, ordered Hussein to demonstrate good cause why the defendants had not been served with the summons and complaint. See Fed. R. Civ. P. 4(m). The following month Judge Dolinger found that Hussein had failed to show good cause, but nonetheless granted plaintiff an additional thirty days to serve the defendants. On October 13, 1999 Hussein returned proof of service of the summons and complaint on the Association, the Sheraton Hotel, and the Union. Those defendants now move to dismiss the complaint.*fn3

DISCUSSION

Viewing Hussein's complaint in the most favorable light, Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (pro se complaints must be reviewed ""to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), he sets forth two claims for relief. He alleges first that the roll call waiters are being denied "equal rights" under 42 U.S.C. § 1981. Complaint at ¶ 5. Hussein's second claim is that defendants have engaged in an "unlawful labor practice" in violation of Section 301 of the LMRA. Id. at ¶ 4.

A. Standard of Review

When reviewing a motion to dismiss for failure to state a claim for relief, a court must accept as true the allegations of the complaint and must view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of the non-moving party. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). Dismissal of the complaint is only proper when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 ...


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