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