By Michael Musto
By Capt. James Van Thach told to Jonathan Wei
By Kera Bolonik
By Michael Musto
By Nick Pinto
By Steve Weinstein
By Michael Musto
By Michael Musto
On a sunny Tuesday this past April, a few hours before the Met's gala performance of Strauss's Die Helena, the dramatics have already started across the street, outside the pre- and post-opera hot spot Café Fiorello. Despite the balmy weather, all the outdoor tables are empty. But the sidewalk is packed with protesters. Behind police barricades, they shout, sing, and carry signs: "Stop Stealing Tips" and "Being Dehumanized, Being Abused." Some placards bear the image of Martin Luther King Jr.
"Which side are you on?" a protester yells. "Are you on the side of the rich man, or are you on the side of the worker?"
The backs of the protesters' shirts carry this slogan: "We are power. We are strong. Who are we? ROC-NY."
The Restaurant Opportunity Center of New York (ROC-NY) is a nonprofit organization founded shortly after 9/11 by Saru Jayaraman, at the time a 25-year-old Ivy Leagueeducated lawyer, to help dislocated workers from Windows on the World, the eatery that used to sit atop the World Trade Center.
From that beginning, ROC has helped those workers open a trailblazing worker-owned co-op restaurant, Colors. It's also shaking up the city's restaurant industry. Although not a union, it often employs the tactics of bargaining, protesting, and picketing. Started as a nonprofit, it's also now in the restaurant business itself.
ROC's influence has changed some long-standing practices at Café Fiorello and other popular eateries and may yet pave the way in setting new labor standards in all city restaurants.
Squared off against Jayaraman is Yale film graduate John Fireman, son of restaurateur Sheldon Fireman, who opened Café Fiorello and a string of other high-profile Manhattan eateries. For a couple of young Ivy Leaguers, Jayaraman and John Fireman aren't afraid of getting their hands dirty in this food fight.
Since 9/11, ROC has been mostly a media darling, its cause and lineage seemingly unassailable. As in any labor struggle, the Firemans accuse ROC of strong-arm tactics. But some of ROC's own members accuse ROC of aiming those tactics at them.
A lawsuit filed late last month by eight dissidents claims that ROC, famous for its belligerent tactics, ousted one of its co-op members for being . . . too belligerent. Trouble has been brewing for a long time. During the process of setting up Colors in 2004 and 2005, more than a dozen ROC members filed an angry petition asking: "When will the ROC-NY board come and answer our accusations about their aggressive behavior, mistreatment, and lack of respect?"
Back on Seventh Avenue, the nearly 100 protesters led by ROC beat on upside-down orange Home Depot buckets, blow whistles, and shake homemade maracas as tourists stop to take pictures of themselves in front of the police barricades. The protesters march their way down Seventh singing, "Went down to the rich man's house/and I took back what he stole from me/I took back my humanity." A city bus blares its horn in time to the song.
The marchers troop past the entrances of Central Park, where a mime in head-to-toe white body paint "eats" a bowl of spaghetti to show support. They head to the Brooklyn Diner, on 57th Street between Seventh and Broadway, waving signs in front of the eatery's street-level window. Inside, a man with a ponytail and his blond companion turn away from the window and stare at their menus.
The march continues on Broadway to hit two more eateries, Trattoria Dell'Arte and the Redeye Grill, both on 57th and Broadway, directly across from Carnegie Hall.
All of the restaurants targeted by the protesters are owned by the Fireman Hospitality Group. John Fireman joined his father's restaurant business at a tough time. Fireman had always worked in the restaurants: During the summers as a kid, he would bus tables, and he has worked as a line cook, a host, and a food expeditor, as well as in the pastry kitchen.
"It was always my plan to be responsible towards the business, because that wasn't a choice," he said. After graduating from Yale with a film degree, Fireman didn't join the business full time. Instead, he worked on movies, directing and producing. For a documentary he made about the recently deceased psychotherapist Albert Ellis, Fireman spent the year after college practically living with the psychologist while also working in the restaurants.
Now he's working for his father full time. On a recent evening, the 26-year-old is home from work early for a change. At 7 p.m. in his West Village apartment, he looks exhausted as he drinks an extra-large iced coffee. "There was a protest tonight," Fireman says. "No, I'm sorry, not a protesta prayer vigil." He raises his eyebrows when he says "prayer vigil."
A native New Yorker, Fireman's father Shelly opened Hip Bagel on MacDougal Street in the '60s. It was a notable place, its fame aided by Woody Allen, who lamented in the 1972 film Play It Again, Sam: "I gave her a home, affection, security. This was a girl I found waiting on tables at the Hip Bagel. I used to go there every night and over-tip her."
In 1974, as Lincoln Center was being built, Shelly Fireman opened Café Fiorello. His son John grew up in an apartment over the restaurant. "Work has always been intertwined with life in my family," he says. "Maybe because we lived so close to the restaurants. They were literally my home."
Shelly Fireman didn't open his next restaurant, Trattoria Dell'Arte, which serves Carnegie Hall concertgoers and tourists, until nearly 15 years later. In the mid-1990s, the company opened the Brooklyn Diner and Redeye Grill, and in 2000, Shelly's New York, followed by Bond 45 in 2005. Altogether, Fireman Group restaurants employ more than 1,200 people.
Meanwhile, John Fireman wanted to be a filmmaker. But when his father approached him a couple of years ago about joining the business full time, he didn't hesitate. "It really wasn't more complicated than my father asking me to," he says. "I decided that the most logical expression of that responsibility would be to work towards the point at which I could operate the company on a daily basis."
For now, though, "the ROC stuff has dominated a lot of my learning experience," he says. Fireman spends much of his time as the restaurant chain's spokesman to the media and in courtrooms. It's eye-opening, but Fireman claims that neither he nor his father was personally offended when ROC members displayed a giant puppet of Shelly Fireman's head with dollar signs for eyes.
"I honestly found it so silly that it kind of rolled off my back," says John Fireman. "I stopped listening sometime around when they started accusing my Jewish father of being an anti-Semite."
While John Fireman was learning the family business, ROC was expanding its mission, working to organize restaurant workers and fight for better working conditions. ROC says it wants to bring about a major change in the city's restaurant industry, which employs more than 150,000 workers. Its strategy includes going after high-profile targets such as Smith & Wollensky and Daniel, staging loud public protests (sometimes called "prayer vigils" to circumvent certain labor laws), threatening lawsuits, and winning out-of-court settlements for the workers.
Typically, the critics of ROC's high- profile protests atand even insidehigh-profile restaurants call them "strong-arm tactics." To which Jayaraman replies: "We're not doing anything illegal. I don't really care what people call it. It notifies the people to what's going on in the restaurant."
There are currently two class-action lawsuits against the Fireman restaurants, seeking more than $10 million. ROC itself does not sueit is not a union and has no formal standingbut it's the catalyst in organizing restaurant workers, who in turn become members of ROC and donate, if they choose, a part of their settlement to the organization.
ROC describes itself as a workers' advocacy group. The flyers that its members distribute carry a disclaimer that "ROC-NY is not a labor organization and does not seek to represent the workers or be recognized as a collective bargaining agent of the workers." But bargaining and union-style brinkmanship are exactly what it does.
"It's a safe bet that most restaurateurs take great comfort in the fact that just 4 percent of the industry is unionized," Ellen Koteff wrote in the June 2006 trade paper Nation's Restaurant News. "It is precisely that low level of participation, however, that has labor leaders viewing the restaurant industry as ripe for organization and urging their unions to become more aggressive in future recruiting tactics."
Saru Jayaraman, now 31, was raised in California by immigrant parents from southern India and graduated from Yale Law School and the John F. Kennedy School of Government at Harvard. Hard-working, she runs ROC meetings every Monday and Wednesday in the group's office in the UNITE HERE building on Seventh Avenue, where members are offered classes in bartending, public speaking, interviewing skills, and ESL. UNITE HERE, a union representing garment workers and hotel and restaurant employees, donated money toward ROC's start-up.
Jayaraman says she wants New York City restaurants to pay their employees what she calls a living wage"wages that allow workers to feed their families." According to the New York State Department of Labor, "food service workers" can be paid as little as $4.60 per hour "because their total compensation includes expected tips." If Jayaraman succeeds in changing this standardand she has at Colorsit could shake up the city's mammoth restaurant industry.
"Raising the bar in an industry that relies on cheap labor also translates into a higher cost of business, something Ms. Jayaraman is learning firsthand," Lisa Fickenscher wrote in Crain's New York Business in 2006. "Her organization is an investor in Colors, a restaurant that opened earlier this year. The restaurant pays wages above the industry average but is now struggling."
Whether or not that's true, ROC faces internal struggles as its fifth anniversary approaches. Eight former members have taken the nonprofit to court, alleging that ROC forced them out after they refused to sign what they deemed unfair contracts.
Behzad Pasdar became a member of ROC after the restaurant he'd been bartending in for almost eight years closed down after 9/11. "I knew the insecurity of working in a restaurant," he says over a beer at a Brooklyn restaurant. "It's a sink-or-swim type of thing." Pasdar, originally from Iran and now living in Jersey City with his wife and their infant son, says he wanted to be part of ROC's mission of starting a restaurant cooperative and a model for restaurant-worker centers.
"I was there to work," he says. "I was very serious about the whole mission." Over the three years that Pasdar was an unpaid member, his work for ROCwhich included catering jobs for fundraisers and speaking at City Hallwas deemed "sweat equity," which would be paid back in partial ownership of what would become the restaurant Colors. As part of Colors' ownership plan, the restaurant stock would originally be owned 50 per cent by ROC-NY and 50 percent by an Italian restaurant co-op.
In October 2004, Jayaraman presented a contact to ROC members that included mandatory protest attendance, mandatory testifying in favor of worker legislation, and mandatory support of workers in any dispute with employers. "Saru comes in with the contract, puts it down on the table, and says, 'You have to sign,' " Pasdar recalls. He says he asked if the members could take the contract home to look over or show it to a lawyer. "'If you don't sign this, you will never be part of the co-op,'" Pasdar recalls Jayaraman saying. "I remember it perfectly."
When one member refused to sign, he was voted out after what Pasdar describes as "a lot of pressure." Pasdar found a lawyer to review the contract and held his own meeting with other members at the Tribeca Bakery. Jayaraman and a group of her supporters showed up and stood outside the eatery while the meeting was taking place, he says.
The internal dispute boiled over in March 2005, according to events laid out in the dissidents' lawsuit against ROC and Jayaraman. The next month, a mediator was brought inthe dissidents say ROC chose the personand there was a showdown in a room where some of ROC's Cooperative Committee members were meeting. "The dissenters attempted to enter the meeting, led by plaintiff Pasdar," the suit says. "When they entered the room over the mediator's protest and efforts to push the door closed, she adjourned the meeting."
At a May 2005 ROC board meeting, "several persons . . . made statements critical of Pasdar, describing him as 'belligerent' and stating that Pasdar 'represented a real threat to the success of this venture,' " the suit says. Pasdar was then expelled from ROC-NY.
In late 2005, ROC-NY opened Colors. According to the suit, "none of the plaintiffs, and no more than 10 to 12 of the ROC-NY Co-op Committee members who had contributed the required sweat equity, were included as owners and were present as part of the restaurant's opening day workforce."
After the hundreds of hours dedicated to ROC, Pasdar never earned a dollar. "If we're going to accept this model as a co-op, then the whole labor movement will be screwed," he says. "This ain't a co-op. This shit's a dictatorship."
Jayaraman has heard worsea Post op- ed column last February sneeringly dubbed her a "Communist." She seems to be taking the lawsuit against ROC with a grain of salt, but there is no doubt that she has a broader agenda. It's something she has always freely acknowledged. Jayaraman says that, in a way, it's good that workers have learned to stand up and fight for what they believe in, but adds that Pasdar and others thought 100 percent of Colors' profits should have gone to them alone, instead of having a portion set aside to help other workers open other cooperative restaurants.
"It's about a movement," Jayaraman says. "It's about workers, not a group of members getting rich."
Pasdar, who worked a full-time job while a ROC member, says that he too wanted to see other co-op restaurants throughout the boroughs, but that he also wanted some security for the work put into opening and running Colors. "What's the point if the people who work at this restaurant can't pay for schools for their kids?" he says. "This is not the American dream."
Neither is the typical restaurant job in New York City. In a 2005 ROC report, "Behind the Kitchen Door," the group claimed that more than 60 percent of all New York City restaurant workers reported not receiving proper overtime wages, 25 percent reported experiencing tip irregularities, 30 percent reported experiencing racial discrimination, and 13 percent reported not receiving the minimum wage.
Jennifer Mascia first started working at the Redeye Grill in September 2004. A part-time journalism student at Columbia University at the time, Mascia had originally called ROC in search of a story. She didn't find one, but as an afterthought she asked Jayaraman about the tip-out policy in the restaurant where she'd been serving sushi rolls and steak to a high-end clientele. The Redeye Grill had a tip pool, in which the largest percentage of tips went to the servers or bartenders, with busboys and food runners receiving a smaller percentage. Fireman restaurants had created a position they called the "zone maître d'," and those workers took away 4 percent from the tip pool in addition to receiving a higher wage than the waitstaff. Some servers considered the zone maître d's to be management and resented their taking money out of the tip pool. Legally, managers cannot be part of a tip pool because they are the servers' bossesthey have the power to hire and fire and discipline. (The state Department of Labor has in fact found that the zone maître d's did not act as managers and were entitled to a share of the tip pool, but that issue is likely to be fought in court cases.)
Jayaraman advised Mascia to get other servers together because ROC could help them. Letters were written to fellow workers passing on ROC's offer to help. "I begged people to come with me," Mascia recalls. Head waiter Chad Parson had also been looking into labor laws and supported Mascia's view that the zone maître d's were, in fact, management. He and five other employees agreed to hear how ROC could help them.
The first time the Fireman Group met ROC was in November 2005, during a dinner shift at the Redeye Grill. Armed with noisemakers and bullhorns, more than 20 ROC members stormed the dining-room floor, shouting complaints about mistreated workers and unpaid wages.
While the diners gawked, Jayaraman presented a letter stating claims of misappropriated tips, sexual harassment, racial discrimination, and failure to follow wage laws.
The letter said that it was ROC's "custom to settle matters amicably," without litigation. In court, the letter noted, "your costs and fees will substantially increase." The Fireman Group was told to contact ROC to resolve the situation.
"Saru had presented the letter to a guy who was probably the closest person to the door in a suit," Fireman says. The letter was sent to a lawyer, and the Firemans thought ROC would go away.
They should have known better. Earlier in 2005, ROC had stormed the four-star restaurant Daniel in the middle of dinner service and handed a manager a letter demanding a discussion of workers' accusations and threatening a lawsuit with numbers reaching $1.2 million. Last month, Daniel settled a suit that included accusations of discrimination against non-white employees.
A lawsuit against another high-profile Manhattan eatery also forced a settlement. The Smith & Wollensky Restaurant Group, which owns Cité and the Park Avenue Café in addition to its namesake steakhouse, agreed in 2005 to pay an out-of-court settlement over claims of not paying overtime, not paying for hours worked, not giving half-hour lunch breaks, and one case of discrimination. In return, ROC agreed to end its regular demonstrations outside the restaurants. The settlement stated that the Smith & Wollensky Restaurant Group was "settling the dispute to avoid the time, trouble and extraordinary expense of further litigation," adding that the agreement was not an admission of wrongdoing.
ROC made PR hay, trumpeting on its website: "After one year and a half of protests, litigation, press, handbilling, clergy visits, and more, we won $164,000 for 23 workers in 2 restaurants in one of New York's most powerful restaurant corporations, as well as lunch breaks and much more."
As for ROC's pressure on the Fireman restaurants, Jayaraman says (as she carries a stack of buckets from a recent protest): "It's more than just the tipping-out issues. There is direct fraud in changing people's hours."
Fireman blames "human error" for time-clock problems. "We reviewed the time sheets and payroll of all our employees," he says. "There was one person, who is a plaintiff, that we discovered discrepancies of maybe a few hundred dollars." The employee, he says, has since been paid.
It's a fact that ROC's pressure on the Fireman restaurants has paid off. The Fireman Group has stopped charging servers a fee for tips left on credit cards and has also begun to pay servers for the time they spend on call or when they're sent home due to a lack of activity on particular days.
Fireman says he consulted with two lawyers on another issue: who should pay for workers' uniforms. He says the lawyers told him that restaurants are not legally responsible for purchasing or cleaning workers' uniforms. The management received an anonymous letter stating that the employees felt this unfair.
"We made the decision to pay for the uniforms," says Fireman, who adds that the restaurants are also planning to give workers a cleaning allowance. "When employees come to you en masse, it's a way of direct dialogue with us that fields results."
As long as it's kept in house, that is. One of the clashes between ROC and a Fireman restaurant actually started brewing when David Mohney, a server at Shelly's, was fired over two cups of coffee. A couple from Italy ordered coffee after they had already paid their bill, but they left before Mohney could give them a new check. Though the unpaid-for coffee was the stated reason for his firing, Mohney says he thinks the real reason was his questioning of management. After working as a server at Shelly's for three years, Mohney was sent home.
Hearing that ROC had gotten a law firm to represent a case against the Redeye Grill, Mohney contacted ROC himself. He was told that he was going to have to get other people from Shelly's involved. "They didn't want to tie it in with Redeye," Mohney recalls. So he contacted former Shelly's employees, and ROC found them the law firm Outten & Golden. Since then, more than 200 employees from Fireman restaurants have signed on, and now there are two lawsuits, one involving workers from the Redeye Grill, and the other a class-action suit with Mohney as the main plaintiff.
The class-action suit claims, among other things, that the restaurant unfairly deducts from wages for tips left on credit cards and for the cleaning of workers' uniforms. The suit also asks money for unpaid hours of on-call duty and also alleges overtime violations and sexual harassment. (The Firemans deny wrongdoing.)
Mohney, an actor with another full-time waiting job, says the lawsuit wouldn't have been possible without ROC, whose role he describes as that of an agent or middleman. "ROC really helped put it together," he says. "They did the groundwork for this."
Justin M. Swartz, a lawyer with Outten & Golden, says the 150 workers that his firm represents would be willing to settle out of court. "They [the Fireman Group] just have to pay them back," he says. "They forced the workers to sue them to get the money they are owed. . . . I've been doing this eight years, and I've never seen anything like it. They rely on their workers, so it's just baffling to me the way they treat them."
But there have been counter-protests by staffers who haven't signed onto the lawsuit. And their signs read: "The only people stealing our tips are ROC."
Veteran employee Ricardo Soto defends the Fireman restaurants and isn't part of the lawsuit, but he says that half of the employees at his restaurant are, and he tries not to talk about it with them. "You have to work with these peopleyou eat with them, you change with them," he says. "You spend more time with your co-workers than you do with your loved ones."
When there are protests while Soto is working, he says, he will make a point of holding open the restaurant door to entice diners in. "In this business, people always cry," he says. "At the end of the day, Saru will get places, but she's no Erin Brockovich."
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