Disneyland Park, 1256 (2007)

Docket Number:21-CA-35222
 
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Disneyland Park and Disney’s California Adventure, Divisions of Walt Disney World Co. and International Association of Bridge, Structural and Ornamental Iron Workers, Local 433, AFL–CIO. Case 21–CA–35222

September 13, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On May 15, 2003, Administrative Law Judge Lana H. Parke issued the attached decision. The Respondent filed exceptions and a supporting brief and a reply brief. The General Counsel filed exceptions and a supporting brief and an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The issue before the National Labor Relations Board is whether Disneyland Park,[1] violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with requested information. Having considered the decision and record in light of the exceptions and briefs, we adopt, for the reasons given by the judge, her dismissal of the allegation that the Respondent unlawfully refused to permit the Union to view subcontracts and files relating to the bidding and performance of the subcontracts. We reverse the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with the dates of each subcontract, nature of the work, the dates upon which the work was performed, and the name of the subcontractors performing unit work. Accordingly, we dismiss the complaint in its entirety.

Background

The Respondent is engaged in the business of operating a retail hotel and two entertainment facilities: Disneyland Park and Disney’s California Adventure. The Respondent and Union have been parties to successive collective-bargaining agreements covering job classifications involving primarily facility maintenance, repair, and rehabilitation. The latest collective-bargaining agreement initially concerned only Disneyland Park and was effective from March 1, 1998 to February 28, 2003. In 2000, as part of a deal to include the newly created theme park, Disney’s California Adventure, the parties extended the existing collective-bargaining agreement to February 28, 2005. Section 23 of the contract, applicable only to Disneyland Park, provides, in pertinent part, that:

During the terms of the Agreement, the Employer agrees that it will not subcontract work for the purpose of evading its obligations under this Agreement. However, it is understood that the Employer shall have the right to subcontract . . . , where the subcontracting of work will not result in the termination or layoff, or the failure to recall from layoff, any permanent employee qualified and classified to do the work.

In a February 11, 2001 letter, the Union’s attorney, David Rosenfeld, requested, in pertinent part, that the Respondent provide the Union with information concerning the Respondent’s subcontracts that were arguably within the Union’s jurisdiction. In requesting the information Rosenfeld wrote that “The Union has observed that there have been a number of subcontracts within Disneyland for work covered by the agreement within Local 433’s jurisdiction. The Union is concerned that such subcontracting may not comply with the terms of the agreement.”

In a March 11, 2001 letter, Jennifer Larson, Respondent’s labor/cast relations manager, answered that “Section 23 of the Collective Bargaining Agreement specifically allows for subcontracting of any work . . . when it will not result in the termination or layoff, or failure to recall from layoff, any permanent employee qualified and classified to do the work. [I]n light of the explicit language of the contract, [the information request is] apparently unnecessary . . . We would be happy to give your request further consideration if you could explain with some level of detail the relevance of this request . . . .”

On March 22, 2001, Rosenfeld responded by stating that the Union believed there had been an increase in subcontracts.

On April 3, 2001, Larson responded, stating that there had been no layoffs of Local 433 employees, and thus the Respondent did not believe that a contractual issue existed at that time. Larson offered to further consider the request if the Union would explain the relevance of the information to its role as the employees’ collective-bargaining representative.

On April 9, 2001, Rosenfeld replied: “At least one iron worker has retired and has not been replaced. Additionally, no new steward has been hired at the new theme park. It is plain that Disneyland is reducing its work force and subcontracting additional work. It is for these reasons the information is requested.”2

On May 10, 2001, Larson informed the Union: “you have failed to provide any reason which would lead to a viable claim under our Collective Bargaining Agreement. The Company has the explicit right to determine the number of employees and how they are utilized to run the business.” Larson informed Rosenfeld that the Respondent did not believe it was obligated to furnish the requested information.

On June 17, 2001, Rosenfeld responded: “Your letter takes the position Disney will not provide any of the subcontracts. I want to make it plain we seek only subcontracts that involve work arguably or possibly performed by Iron Workers.”

The Judge’s Decision

The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with a list of all subcontractors performing work within the Union’s jurisdiction from January 1, 1999 to present, the date of each subcontract, the nature of the work, the name of the subcontractors, and the dates the work was performed. The judge deemed this information relevant to the Union’s efforts in determining whether evidence exists of an attempt by the Respondent to evade its contract obligations through the erosion of unit work.

However, the judge found that the Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to allow the Union to review the subcontracts or any files Respondent maintains regarding the bidding and performance of the contracts. The judge found that this information did not appear to be of probable or potential relevance to the question of whether the Respondent was evading its bargaining obligation, and that neither the Union’s counsel nor the General Counsel explained how obtaining such information would assist the Union in determining whether the Respondent violated the agreement. The judge found that the Union’s generalized, conclusory explanations of how the information would assist the Union in evaluating whether the Respondent violated the Act did not trigger an obligation on the Respondent’s part to provide the information.

The Respondent’s Exceptions

The Respondent contends that the judge erred in finding that it violated Section 8(a)(5) and (1) by refusing to furnish the Union with a list of all subcontractors performing work within the Union’s jurisdiction from January 1, 1999 to present, the date of each subcontract, the nature of the work, the name of the subcontractors, and the dates the work was performed. The Respondent argues that the information requested by the Union is irrelevant under the terms of the collective-bargaining agreement, because the Respondent had the unfettered right to subcontract so long as the subcontracting did not result in the layoff or failure to recall from layoff a bargaining unit member. The Respondent noted that no member of the bargaining unit was laid off or denied recall. Further, the Respondent asserts that it cannot be found to have evaded the agreement because the agreement does not contain any provision requiring the Respondent to maintain its work force at a particular level, require them to refrain from reducing the work force, or otherwise protect the work force from reduction.

The Charging Party’s Exceptions

The Charging Party argues the judge erred in finding that the Respondent did not violate Section 8(a)(5) and (1) by failing to provide information concerning the bidding process to the Union. The Charging Party contends that the judge cannot reasonably find, on one hand, that information relating to subcontracting is relevant, but on the other hand, find that information relating to the bidding process and performance of the contracts is irrelevant. The Charging Party further asserts that information relating to the bidding and performance of the contract is relevant because it could help the Union convince the Respondent to limit or reduce subcontracting. Thus, the Respondent was obligated to provide the information.

Applicable Law

An employer has the statutory obligation to provide, on request, relevant information that the union needs for the proper performance of its duties as collective-bargaining representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967); Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). This includes the decision to file or process grievances. Beth Abraham Health Services, 332 NLRB 1234 (2000). Where the union’s request is for information pertaining to employees in the bargaining unit, that information is presumptively relevant and the Respondent must provide the information. However, where the information requested by the union is not presumptively relevant to the union’s performance as bargaining representative, the burden is on the union to demonstrate the relevance. Richmond Health Care, 332 NLRB 1304 (2000); Associated Ready Mixed Concrete, Inc., 318 NLRB 318 (1995), enfd. 108 F. 3d 1182 (9th Cir. 1997); Pfizer, Inc., 268 NLRB 916 (1984), enfd. 736 F.2d 887 (7th Cir. 1985).3 A union has satisfied its burden when it demonstrates a reasonable belief, supported by objective evidence,...

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