NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal
errors so that corrections can be included in the bound volumes.
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,
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.”
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). A union has satisfied its burden when it demonstrates
a reasonable belief, supported by objective evidence, that the requested information
is relevant. Knappton Maritime
Corp., 292 NLRB 236, 238-239 (1988).
Information about subcontracting agreements, even those
relating to bargaining unit employees’ terms and conditions of employment, is
not presumptively relevant. Therefore, a
union seeking such information must demonstrate its relevance. Richmond
Health Care, 332 NLRB 1304, 1305 fn. 1 (2000).
The Board uses a broad, discovery-type standard in determining
the relevance of requested information.
Potential or probable relevance is sufficient to give rise to an
employer’s obligation to provide information.
Id.
To demonstrate relevance, the General Counsel must present evidence
either (1) that the union demonstrated relevance of the nonunit information, or (2) that the relevance of
the information should have been apparent to the Respondent under the
circumstances. See Allison Co., 330 NLRB
1363, 1367 fn. 23 (2000); Brazos Electric Power Cooperative, Inc., 241 NLRB 1016, 1018–1019 (1979), enfd. in relevant part
6l5 F.2d 1100 (8th Cir. 1980). Absent
such a showing, the employer is not obligated to provide the requested information.
Discussion
We find that the Respondent was not obligated to provide
the Union with the requested information about
subcontracting. Insofar as the judge
found no merit to the allegations, we agree with her for the reason she cited
and those set forth below. However,
contrary to the judge’s conclusions on those allegations that she upheld, we
find that the Union failed to adequately support
the relevance of the information. As
previously shown, the requested information was not presumptively relevant
because it concerned subcontracts. Richmond
Health Care, supra. Further, the
information’s relevance was not apparent from the surrounding
circumstances. Pursuant to section 23 of
the collective-bargaining agreement, the Respondent could subcontract, provided
that the subcontracting did not result in a termination, layoff or a failure to
recall unit employees from layoff. However,
the Union made no such claim. The Union explained only that it “observed
that there [have] been a number of subcontracts within Disneyland for work covered
by the agreement;” that it believed there had been an increase in subcontracts;
and that “at least one iron worker has retired and not been replaced [and] no
new steward has been hired at the theme park [thus] [i]t is plain that
Disneyland is reducing its workforce and subcontracting additional work.” We find these explanations insufficient,
under the circumstances, to explain the relevance of the requested subcontract
information. There was no claim that any
employee had been terminated or laid off, and no claim that any employee, previously
laid off, had not been recalled.
Further, there was no claim that any such action was caused by
subcontracting. Given that the unit
appears to be sizeable, the Respondent’s
failure to hire a replacement for one retiring employee does not, by itself,
reasonably suggest that the Respondent was not honoring the
collective-bargaining agreement. In
order to show the relevance of an information request, a union must do more
than cite a provision of the collective-bargaining agreement. It must demonstrate that the contract
provision is related to the matter about which information is sought,
and that the matter is within the union’s responsibilities as the collective-bargaining
representative. Here, it has not been
shown that the Union had a reasonable belief
supported by objective evidence that the information sought was relevant. Therefore, we find that the Union
failed to meet its burden. Compare Schrock
Cabinet Co., supra (relevance demonstrated).
Pratt & Lambert,
319 NLRB 529, cited by the dissent, actually supports our view. In that case, the union showed that three
employees had lost their jobs, and no loss was due to retirement. By contrast, the Union
here showed one loss, and that was due to retirement. It was not due to any of the events which
would trigger an obligation to furnish information, i.e., termination or layoff
or failure to recall.
We recognize that article 23 begins with a general sentence
prohibiting the Respondent from subcontracting “for the purpose of evading its
obligations under this Agreement.” However,
even assuming arguendo that this sentence is to be read independently from the
remainder of the article, the Union never made
the claim that any subcontracting had that evasive purpose. Nor were the surrounding circumstances such
that the Respondent should have been aware that this was the Union’s
concern, and was its basis for requesting the information.
Finally, the judge relied on Union business agent Michael
Couch’s testimony, at the hearing, in finding that the Union’s concern was that
the Respondent was possibly evading its agreement obligations, and that the Union thereby demonstrated the relevance of the requested
information. Michael Couch testified
that he “noticed our guys, our bargaining unit employees in the shop, were
sitting in the shop while non-union people were out there doing the work they
normally do, which, to me, is a violation of the agreement.” That testimony suggests, at most, that work
was being subcontracted to nonunionized employers. It does not suggest, or even claim, that subcontracting
caused terminations, layoffs, or nonrecalls.
Nor does the testimony show that any subcontracting had an evasive purpose. Couch’s testimony cannot serve to establish
that the Union provided to the Respondent a
sufficient factual basis to establish relevance at the time the information request
was made.
Furthermore, relevance was not shown for the first time at the
hearing. As mentioned above, Couch’s
testimony did not explain how the requested information would be relevant to support
an arguable violation of the contract.
We do not suggest that the union, in order to acquire the
information must prove a breach of contract.
We simply conclude that the union must claim that a specific provision
of the contract is being breached and must set forth at least some facts to
support that claim. For example, if the Union here had clarified that employees had been laid off,
and if it had backed up that claim with facts showing the layoffs, a different
result may well have been obtained.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 13, 2007
Robert J. Battista, Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Member Liebman, dissenting.
In finding that the Union
was not entitled to the subcontracting information it requested, the majority
reaches a result that is at odds with well-settled principles. Here, the parties’ collective-bargaining agreement
includes a provision on subcontracting, and the Union
invoked that provision in seeking information, citing facts that prompted its
concern that the agreement was being violated.
No more was required to trigger the Respondent’s duty to disclose the
requested information. The majority’s
approach here would effectively require proof that the Union
had a meritorious grievance. But that is
not the law.
i.
A liberal, “discovery-type standard” governs information-request
cases under Section 8(a)(5) of the Act. NLRB v. Acme Industrial Co., 385 U.S.
432, 437 (1967). As the majority
acknowledges, this standard applies even in subcontracting cases, where the relevance
of the information must be established, not presumed.
All that is required is a showing of a “probability
that the desired information was relevant, and that it would be of use to the
union in carrying out its statutory duties and responsibilities.” Id. Thus, the “union’s burden is not an exceptionally
heavy one.” SBC Midwest, 346 NLRB No. 8, slip op. at 3 (2005) (finding an 8(a)(5)
violation involving request for subcontracting information).
The asserted need to police compliance with a contract
provision on subcontracting can establish the relevance of
subcontracting-related information, apart from any showing that an actual
grievance has or would have merit. See,
e.g., Schrock Cabinet Co., 339 NLRB at
182 fn. 6 (2003) (union established relevance by advising employer that it
requested information “for the purpose of assessing potential grievances
pursuant to the parties’ existing collective-bargaining agreement”).
Only where a union has “no basis for even suspecting that the [employer]
might be in breach” of a contractual subcontracting provision will the Board
reject a claim for subcontracting information.
Detroit Edison Co., 314 NLRB
1273, 1275 (1994).
ii.
The facts here are straightforward. Over the course of more than 4 months, the Union requested, and the Respondent declined to provide,
information relating to the Respondent’s subcontracting practices.
With respect to Disneyland
Park, article 23 of the
agreement provides that the Respondent “will not subcontract work for the
purpose of evading its obligations under this Agreement,” but permits
contracting under specified circumstances.
Those circumstances include where subcontracting will not result in the
termination, layoff, or failure to recall
employees. With respect to Disney’s
California Adventure, the agreement granted the Respondent the “unrestricted
right to subcontract or outsource work,” except where the subcontracting is
permanent and results in layoffs.
Beginning with a letter dated February 11, 2001, the Union
stated that it had observed “a number of subcontracts within Disneyland
for work covered by the agreement within Local 433’s jurisdiction” and
expressed its “concern that such subcontracting may not comply with the terms
of the agreement.” The Union asked the Respondent
to provide a list of all subcontractors that performed work within its jurisdiction
since January 1, 1999, the date of the subcontract, the nature of the work, the
dates on which it was performed, and the name of the subcontractor. The Union
also sought to review the subcontracts and associated files regarding the
bidding and performance of those contracts.
Describing the task of gathering more than 3 years of data
as “onerous” and “oppressive,” the Respondent asked the Union for a more detailed
explanation of relevance, as well as whether the Union was claiming that
subcontracting had resulted in the loss of work for permanent employees.
The Union modified its
request, asking only for the past year’s subcontracts and stating it had
observed that the number of subcontracts had increased. The Respondent replied that the contract
allowed for subcontracting absent a layoff, and repeated its request for a more
detailed explanation of relevance. The Union asserted that the Respondent was reducing its work
force and pointed to the Respondent’s failure to replace retired iron worker
Richard Halashak, and to the fact that no steward had been hired for the
California Adventure theme park. The
Respondent countered that not replacing one employee is not a contract
violation and characterized the request for the past year’s subcontracting
history as unreasonable. The Union answered that it was asking only for subcontracts
affecting work within its jurisdiction.
The Respondent did not reply.
At the hearing in this case, the Union
reiterated the basis for the information requests. Business agent Couch testified that “our
guys, our bargaining unit employees in the shop, were sitting in the shop while
non-union people were out there doing the work they normally do, which, to me,
is a violation of the agreement.”
iii.
The majority holds that the “Union
failed to adequately explain the relevance of the requested information.” In the majority’s words:
In order to show the relevance of an information request,
a union must do more than cite a provision of the collective-bargaining agreement. It must demonstrate that the contract
provision is related to the matter about which the information is sought, and
that the matter is within the union’s responsibilities as the
collective-bargaining representative.
But this test, as the majority articulates it, was
met. In seeking information about
subcontracting, the Union cited a contract
provision that governed subcontracting; the provision obviously was “related to
the matter about which the information [was] sought.” Policing the contract, in turn, obviously was
part of the Union’s representative
responsibilities. This is not a case, then, like Island Creek Coal, supra fn. 4, where
the union merely offers a “generalized, conclusionary explanation,” such as the
need “to intelligently and effectively represent the bargaining unit employees,”
with no mention of a possible contract violation at all. 292 NLRB at 490 fn. 19.
The real crux of the majority’s position is its view that
the Union failed to point to facts that “reasonably suggest that the Respondent
was not honoring the collective-bargaining agreement” and that the Union did not demonstrate “a reasonable belief supported
by objective evidence that the information sought was relevant.” The majority interprets the agreement to
prohibit subcontracting only where it results in a layoff or a failure to
recall employees from layoff, and observes that the Union
cited no actual layoff or failure to recall.
As for the agreement’s prohibition against subcontracting by the Respondent
“for the purpose of evading its obligations under this Agreement,” the majority
asserts that the Union neither claimed that subcontracting had that purpose, “nor
were the surrounding circumstances such that the Respondent should have been
aware that this was the Union’s concern.”
In apparently demanding reliable, objective evidence that
an actual violation of the contract has occurred before information must be provided, the majority sets the bar for
the Union higher than our precedent supports.
See, e.g., W-L Molding Co.,
supra, 272 NLRB at 1240 (actual instances of contract violations not required,
nor must information that triggered information request be “accurate,
nonhearsay, or even ultimately reliable”). See also Public Service Electric & Gas Co., 323 NLRB 1182, 1186–1188
(1997), enfd. 157 F.3d 222 (3d Cir. 1998).
Here, the Union pointed not only to a relevant contractual
provision, but also to facts prompting its concern that the contract might have
been violated: an apparent increase in the volume of subcontracts and a possible
decrease of two bargaining-unit positions (the Respondent’s failure to replace
a retired employee and its failure to hire a steward), coupled with the union
business agent’s observation that unit employees seemed to be idle while
subcontractors were busy with bargaining-unit work. Given the contract’s broad prohibition against
subcontracting “for the purpose of evading . . . obligations” under the
agreement, this factual basis was sufficient to support the Union’s
information request, even without an actual layoff.
In the circumstances of this case, the Union’s
factual assertions regarding the apparent erosion of the bargaining unit,
coupled with its reference to the contract terms concerning subcontracting,
fully satisfied the discovery-type standard that governs here.
The Board’s precedent is instructive on this point. In Pratt
& Lambert, Inc., 319 NLRB 529 (1995), the union sought subcontracting information
to police compliance with a contract provision that permitted subcontracting of
maintenance work, provided it did not “result in the displacement” or “lead[]
to layoff” of any maintenance employees.
The Board rejected the employer’s contention that the information sought
was irrelevant because there had been no displacement or layoff of employees,
citing the union’s demonstration that the maintenance department “had lost
approximately three employees over the course of a year and that those employees
have not been replaced.” 319 NLRB at 529
fn. 1. The Board observed that the
evidence did not establish that the lost employees had retired, and that the
interpretation of the contract provision was “not an issue that is properly
before the Board. Id.
The Union’s showing here is comparable. While it may not suffice to demonstrate a
violation of the parties’ agreement, it is enough to trigger the Respondent’s
duty to disclose the requested information.
Tellingly, the majority relies on no case law that genuinely
supports its position. In passing, the
majority cites clearly inapposite summary judgment decisions. The majority also cites Schrock Cabinet Company, supra, but there the Board found a violation of Section 8(a)(5),
relying on the union’s assertion that it sought subcontracting information to
consider potential grievances pursuant to the collective-bargaining agreement. 339 NLRB at 182 fn. 6. The Board reiterated that the “potential
merits of any particular grievances” are immaterial. Id.
iv.
A union surely is not required to wait for the substantial
erosion of bargaining unit work before it may properly seek information necessary
to police compliance with a collective-bargaining agreement’s subcontracting
provision. Vigilant monitoring—what the Union sought to practice here—is consistent with the duty
of fair representation.
Contrary to the majority, I would order the Respondent to
provide the Union with the subcontracting
information that it requested: a list of subcontractors performing work, the
date of each subcontract, when the work was performed, and the name of the
subcontractor. The judge correctly
ordered production of this information.
I would go further, however, in ordering the Respondent to permit the Union to review the subcontracts themselves and the
Respondent’s files regarding the bidding of subcontracts and their
performance. That remedy is necessary to
enable the Union to grasp the scope, scale,
and nature of the
Respondent’s subcontracting practices, and their congruity
with the collective-bargaining agreement.
Dated, Washington, D.C. September 13, 2007
Wilma B. Liebman, Member
National Labor Relations Board
Alan L. Wu, Atty.,
for the General Counsel.
Jeffrey K. Brown, Atty., of Los Angeles, California,
for the Respondent.
Tom
B. Fox, Director Labor Relations Disneyland Resort, of Anaheim,
California, for the Respondent.
David A. Rosenfeld, Atty., of Oakland, California,
for the Charging Party.
DECISION
Statement of the Case
Lana H. Parke,
Administrative Law Judge. This case was
tried in Los Angeles, California, on March 31, 2003. Pursuant to charges filed by International
Association of Bridge, Structural and Ornamental Iron Workers, Local 433,
AFL–CIO (the Union), the Regional Director for Region 21 of the National Labor Relations
Board (the Board) issued a complaint and notice of hearing (the complaint) on
October 9, 2002. The complaint alleges that Disneyland Park
and Disney’s California Adventure, Divisions of Walt Disney World Co.
(Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act) by failing and refusing to furnish the Union with information
necessary for, and relevant to, the Union’s collective-bargaining representation
obligations.
On the entire record and after considering the briefs
filed by the General Counsel and Respondent and the oral argument of the
Charging Party, I make the following
Findings of Fact
i. jurisdiction
Respondent, a Delaware
corporation, with its primary offices and amusement park located in Anaheim, California,
is engaged in the business of operating retail hotel and entertainment
facilities. During the representative
12-month period preceding the complaint, Respondent derived gross revenues in excess
of $500,000 and purchased and received at its amusement park goods valued in
excess of $50,000 directly from points outside the State of California.
Respondent admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
ii. alleged unfair labor practices
A. The Collective-Bargaining Relationship
Respondent and the Union have been parties to successive
collective-bargaining agreement, the latest of which is effective by its terms
from March 1, 1998, to February 28, 2005 (the agreement). The agreement covers at least 53 separate
work classifications associated, primarily, with facility maintenance, repair,
and rehabilitation work. The agreement was initially negotiated to run
until February 28, 2003. In 2000, the
parties agreed that the terms of the agreement would cover, as modified, a
newly constructed and conjoining amusement park, Disney’s California
Adventure. The agreement was extended by
2 years; the modifications are reflected in the addendum to the agreement and
apply only to Disney’s California Adventure.
The provisions relating to subcontracting are as follows:
SECTION 23
SUBCONTRACTING
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 and agreed that the Employer shall have the right to subcontract
when: (a) where such work is required to be sublet to maintain a legitimate
manufacturers’ warranty; or (b) 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; or (c) where the
employees of the Employer lack the skills or qualifications or the Employer
does not possess the requisite equipment for carrying out the work; or (d)
where because of size, complexity or time of completion it is impractical or uneconomical
to do the work with Employer equipment and personnel.
Modifications applicable to Disney’s California Adventure
read:
Section 23.
Subcontracting
The 1998 Maintenance Agreement at Disneyland
is hereby modified to reflect that the prohibitions pertaining to subcontracting
set forth in Section 23 shall have no force or effect and shall be replaced as
follows:
A. With respect to any operation as set forth in Section 2
(Recognitions), B.1 and/or B.2., of this Agreement, the Employer shall have the
unrestricted right to subcontract or outsource this work or operation even if
at some date subsequent to the effective date of this Agreement the Employer
chooses to operate any of said facilities or operations under the terms of this
Agreement.
B. 1.a. With respect to any operation initially operated
by the Employer under the terms of this Agreement, the Employer shall have the
unrestricted right to subcontract or outsource this work/operation, but will discuss
with the union the impact of such a decision prior to engaging in such
subcontracting or outsourcing of work.
Within thirty (30) days of the final selection of a vendor, the Company
will provide the union with a description of the work to be performed by the
vendor and the reasons that the Company is planning on subcontracting or outsourcing
work. The union may then propose
alternative or additional vendors for consideration by the Company prior to the
final vendor selection being made.
However, the final selection of the vendor shall be at the discretion of
the Company.
b. Where the decision of the Company to outsource and/or
subcontract work on a permanent basis, as outlined in paragraph B. 1 above,
results in the layoff of Regular employees, the Company agrees to subcontract
or outsource exclusively to “union contractors . . .
. . . .
2. The process described . . . above shall apply only to
work that is being permanently subcontracted or outsourced and not to any work
that is being subcontracted or outsourced on a temporary or seasonal basis, as
well as for special events or one time events. . . For this type of work or operation, the
Company shall have the unrestricted right to subcontract or outsource to the
vendor of its choice.
B.
The Union’s Request for Information
In late 2001, at a meeting between Respondent and the
Craft Maintenance Council, Mr. Couch expressed the Union’s
concern with Respondent’s subcontracting of bargaining-unit work. In early 2002, while present at the amusement
park, Mr. Couch saw employees of two companies, Welding Unlimited and Parrot
Construction, performing work he believed to be within the bargaining-unit
parameters. Mr. Couch could not find
the companies’ names on a list of employers signatory to collective-bargaining
agreements with the Union. He believed the two companies to be
“nonunion” based on that and on union steward reports.
At that time, and at all relevant times, no employee covered by the
agreement’s unit description was on layoff.
By letter dated February 11, the Union’s
attorney, David A. Rosenfeld (Mr. Rosenfeld), wrote to Respondent in pertinent
part as follows:
. . . 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.
Please provide a list of all subcontractors which have performed
work within Local 433’s jurisdiction for the period of January 1, 1999 to
present. For each such subcontract, provide
the date of the subcontract, the nature of the work, the dates upon which it
was performed and the name of the subcontractor.
Please allow us an opportunity to review the subcontracts
and any files which Disneyland maintains regarding
the bidding of that contract and the performance of the contract.
By letter dated March 11, Jennifer L. Larson (Ms. Larson)
labor/cast relations manager for Respondent answered, in pertinent part, as
follows:
As you know, Section 23 of the Collective Bargaining
Agreement specifically allows for subcontracting of any work under the
circumstances listed. In fact, one of
the terms of that section provides that subcontracting is allowed when “it 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.” Is the Union
claiming that this condition exists?
Attempting to gather information regarding subcontracts over a three
plus year period would be quite onerous, oppressive and, in light of the
explicit language of the contract, apparently unnecessary. In any event, we would be happy to give your
request further consideration if you could explain with some level of detail
the relevance of this request. Additionally,
if you could explain why you want us to go back for more than three years,
especially since any conceivable grievance must be filed within 15 days of the
occurrence or it is waived, it would be greatly appreciated.
The following exchange of letters, in pertinent part, then
followed:
Letter dated March 22, Mr. Rosenfeld to Ms. Larson:
This will acknowledge receipt of your letter of March
11. Why [don’t] you begin by giving this
information for the last year. The
reason for this is that the Union believes
that there has been an increase in subcontracts.
Letter dated April 3, Ms. Larson
to Mr. Rosenfeld:
As I explained in my previous letter, Section 23 of the
Collective Bargaining Agreement specifically allows for subcontracting of any
work under the circumstances listed. As
there have been no layoffs of employees represented by the Iron Workers Local
433, we do not believe that this is an issue at this time. As I also explained in my previous letter, we
would be happy to give your request further consideration if you could explain
with some level of detail the relevance of this request, especially since any
conceivable grievance must be filed within 15 days of the occurrence or it is
waived.
Letter dated April 9, Mr. Rosenfeld to Ms. Larson:
At least one iron worker has retired and has not been replaced. That ironworker is Richard Halashack. 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
that the information is requested.
Letter dated May 10, Mr. Rosenfeld to Ms. Larson:
Enclosed is my letter of April 9, to which I have not had
a response. Please respond.
Letter dated April 10, Ms. Larson to Mr. Rosenfeld:
Despite requesting some level of detail in your request,
which is broad, burdensome to gather, and apparently unnecessary, 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.
You mention only one employee, who retired, and was not replaced. Such a determination is clearly within our
rights under Section 6 of our Collective Bargaining Agreement, Management’s
Rights and is not a violation of Section 23, Subcontracting.
The Company sees no reasonable claim that would necessitate
providing a list of all subcontractors, the date of the subcontract, the nature
of the work, the dates upon which it was performed and the name of the
subcontractor, as requested.
Letter dated June 17, Mr. Rosenfeld to Ms. Larson:
Your letter of May 10 takes the position that Disneyland will not provide any of the subcontracts. I want to make it plain that we are seeking
only subcontracts that involve work arguably or possibly performed by Iron
Workers.
At the hearing, Michael Couch (Mr. Couch), union business
agent, testified that he noticed that “our guys, our bargaining unit employees
in the shop, were sitting in the shop while non-union people were out there
doing the work they normally do, which, to me, is a violation of the
agreement.”
C. Positions of the Parties
The General Counsel contends the Union
needs the requested subcontracting information to perform its contract administration
duties. The request, which relates to
bargaining unit employees, meets the Board’s broad discovery-type relevance
standard. Since the information sought
concerns subcontractors who employ nonbargaining unit employees, Board law
requires a special showing of relevance, which burden the General Counsel
argues the Union has satisfied by showing a reasonable belief supported by
objective evidence that a violation of the agreement may have occurred and that
the requested information would be useful in determining whether grounds exist
for filing a grievance or unfair labor practice charges.
The Union argues that Respondent has not shown the request
for information is burdensome that
the Union has never waived its right to such information, and that the information
is relevant to the following appropriate concerns: (1) as a basis to approach
Respondent with reasons why they should not subcontract, (2) to determine
whether the subcontracts comply with the subcontracting provisions of the
agreement, (3) to determine whether the contract has been complied with, and
(4) to explore potential grievances in such contractual areas as the parties’
intent to promote harmony between employer and employees, the restriction of
subcontracting for the purpose of evading the agreement, and the application of
the new construction provisions of Section 31. The Union
also argues that it is entitled to the information as it has never “waived
[its] rights to bargain over subcontracting, either the decision or the
effects, during the life of the agreement.”
Respondent’s position is that where, as here, requested information
is not presumptively relevant, a requesting union must make a “precise” showing
of relevance. According to Respondent, the
only acceptable showing of relevance must relate to the subcontracting’s direct
effect on unit employment. Relying on The
Detroit Edison Co., 314 NLRB 1273 (1994),
Respondent argues that unless the Union
can show or colorably claim that Respondent’s subcontracting resulted in the
contractually prohibited “termination or layoff, or failure to recall from
layoff” of a bargaining-unit member, it has not established the necessary
threshold relevance to justify its request for information.
D. Discussion
Under Section 8(a)(5) and 8(d) of the Act, an employer
must furnish a union with requested relevant information to enable it to
represent employees effectively in administering and policing an existing
collective-bargaining agreement. NLRB v. Acme Industrial Co., 385 U.S.
4232, 435–436 (1967), A-Plus Roofing, Inc., 295 NLRB 967, 970 (1989)
enfd. NLRB v. A-Plus Roofing, Inc., 39 F. 3d 1410 (9th Cir. 1994). Information that relates directly to the terms
and conditions of employment of the employees represented by a union is presumptively
relevant as is information necessary for processing grievances under a
collective-bargaining agreement, including that necessary to decide whether to
proceed with a grievance or arbitration.
As the General Counsel concedes, information about subcontracting
agreements, even those relating to bargaining unit employees’ terms and
conditions of employment, does not constitute presumptively relevant
information. Excel Rehabilitations & Health Center,
336 NLRB No. 10, fn. 1 (2001) (not reported in Board volumes); Richmond
Health Care, 332 NLRB 1304 (2000); Detroit Auto Auction, Inc., 324
NLRB No. 143 (1997);(not reported in Board volumes); Associated Ready Mixed
Concrete, Inc., 318 NLRB 318 (1995).
Therefore, “a union seeking such information must demonstrate its relevance.”
Excel Rehabilitations and Health Center, supra at fn. 1, and cases cited therein. This requirement is not unduly restrictive. A union need only meet a liberal
“discovery-type standard,” that is, a “probability that the desired information
is relevant, and that it would be of use to the union in carrying out its
statutory duties and responsibilities.” NLRB v. Acme Industries Co.,
supra at 437; Pittston Coal Group, Inc., 334 NLRB 690, at slip op. 3
(2001) and cases cited therein. If the
standard is met, the information must be produced. Super Valu Stores, 279
NLRB 22 (1986). In determining
relevance, the Board recognizes that “a union’s representation
responsibilities. . . encompass, among other things, administration of the
current contract and continual monitoring of any threatened incursions on the
work being performed by bargaining unit members.” Detroit Edison Co., supra at
1275. A union must explicate the relevance
of requested information with some precision,
and a generalized conclusionary explanation of relevance is “insufficient to
trigger an obligation to supply information that is on its face not
presumptively relevant.” Island Creek
Coal Co., 292 NLRB 480, 490 fn. 19 (1989), enfd. 899 F.2d 1222 (6th Cir.
1990), citations omitted. However, a
union need not demonstrate accuracy or reliability of facts relied on to
support its request and must only show that it has a reasonable basis to
suspect a breach of the collective-bargaining agreement. See Crowley Marine Services, Inc., 329
NLRB 1054, 1060 (1999).
Respondent points out that the agreement’s subcontracting
provisions give Respondent a nearly unfettered right to subcontract work that
could be performed by unit employees except where the subcontracting would
result in the termination or layoff, or the failure to recall from layoff, any
qualified unit employee. Respondent is correct that the agreement
clearly establishes the conditions under which it may subcontract. Despite the Union’s
argument that it has not waived its right to bargain over subcontracting during
the life of the agreement, there is no midterm reopener provision in the
agreement; therefore, the agreement forecloses renegotiation of subcontracting
issues during its term. Further, there
is no evidence that any of the subcontracting conditions were unmet. However, those facts do not dispose of the
issue herein. Information requested to
enable a union to assess whether an employer’s subcontracting has violated a
collective-bargaining agreement and to assist a union in deciding whether to
pursue a grievance is relevant to a union's representative responsibilities. AK Steel Corp., 324 NLRB 173, 184
(1997); Island Creek Coal Co., supra.
Here, the Union specified the relevance
of the requested information in its April 9 letter to Respondent by expressing
its concern that Respondent’s subcontracting might be an impermissible attempt
to reduce the unit work force.
In Section 23 of the agreement, Respondent “agrees it will
not subcontract work for the purpose of evading its obligations under this
Agreement.” While the Union did not note
that specific provision in its demands for information, the Union
stated in its original, February 11, request that it was “concerned that
[Respondent’s] subcontracting may not comply with the terms of the
agreement.” The Union
thereafter noted in its April 9 letter that one unit member had retired and had
not been replaced and that no new steward had been hired at Disney’s California
Adventure. Essentially, the Union charged Respondent with reducing the unit work
force through attrition or refusal to hire and supplanting unit employees with
subcontract workers. The Union could reasonably view such conduct as an attempt by
Respondent to erode unit work and, thereby, to evade its obligations under the
agreement. Whether the Union’s
view is accurate or persuasive is unimportant.
Crowley Marine Services, Inc., supra, 1062. Respondent’s failure to replace a retired
unit employee, to hire a new steward, or to utilize unit employees, while not
proving or even red flagging any contract infraction, are factors that elevate
the Union’s concern above frivolous suspicion or a mere fishing expedition.
Therefore, the Union is entitled to
explore more fully the question of whether Respondent seeks to evade its agreement
obligations. Respondent’s argument that
the information request can only be relevant if unit employee layoff or recall
denial exists ignores the Union’s legitimate
concern that Respondent may be attempting to evade the agreement by reducing
the work force.
In light of the Board’s liberal discovery-type standard
for evaluating information relevancy, the Union has asserted an arguably valid
reason for seeking, in the first part of its information request, the following
information: a list of all subcontractors performing work within the Union’s
jurisdiction for the period of January 1, 1999, to present, the date of each
subcontract, the nature of the work, when the work was performed, and the name
of the subcontractor. Detroit Edison,
supra, relied on by Respondent does not dictate a different result. The union in that case sought subcontracting
cost data, which had no apparent connection to contractual provisions, and the
union conceded that the data would not support any claim of a contract
breach. While the reasoning of Detroit
Edison applies to the second half of the Union’s
request, as set forth below, it does not apply to the first half. Information regarding subcontractors
performing work within the Union’s
jurisdiction, along with subcontract dates, the nature of the work, when the
work was performed, and the name of the subcontractor may reasonably be
reviewed and analyzed to determine whether evidence exists of an attempt to
evade contract obligations through erosion of unit work.
The Union need not show that the requested
information will be dispositive of the unit work-erosion question but only that
it is relevant. I conclude that the Union has demonstrated the requisite relevance and is
entitled to the above information.
The latter part of the Union’s
information request, i.e., the request to review Respondent’s subcontracts and
files regarding the bidding and the performance of the subcontract, requires
further analysis. This latter
information does not appear to be of “probable or potential relevance” to the question of whether Respondent
was evading its agreement obligations or to any of the other possible contract
violations suggested by the Union. In its correspondence with Respondent, the
Union explained, variously, that it needed the information because the
subcontracting might not comply with the terms of the agreement, that the Union
believed there had been an increase in subcontracts, and, as discussed above,
that the Union suspected Respondent was
reducing its work force. In his oral
argument, Respondent’s counsel specified potential contract violations the Union wished to consider such as the provision relating
to the parties’ intent to promote harmony between employer and employees and
the application of the new-construction provisions of Section 31 of the
agreement. Neither the Union’s counsel
nor counsel for the General Counsel explained how obtaining information
concerning subcontract bidding and performance would assist the Union in determining if any agreement violation had
occurred or in formulating a grievance.
The Union’s generalized and conclusionary
explanations of its bases do not trigger an obligation to provide this
information. Island Creek Coal Co., supra. In the circumstances, I conclude the Union has not demonstrated any logical foundation or
factual basis for requesting information regarding subcontract bidding or performance.
Accordingly, I find the General Counsel met his burden of
proving that Respondent violated Sections 8(a)(5) and (1) of the Act by failing
to furnish the following information to the Union: a list of all subcontractors
performing work within the Union’s jurisdiction for the period of January 1,
1999, to present, the date of each subcontract, the nature of the work, when
the work was performed, and the name of the subcontractor. I further find that the General Counsel
failed to meet his burden of proving that Respondent violated Sections 8(a)(5)
and (1) of the Act by failing to furnish the following information to the
Union: review of subcontracts and any files which Respondent maintains
regarding the bidding of said subcontracts and their performance. Therefore, I recommend the complaint be dismissed
as to this latter request for information.
Conclusions of Law
1. Respondent is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Employees employed
in the classifications listed in Schedule A, subsection V of the agreement
between Respondent and the Union constitute an
appropriate unit for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. At all times material,
the Union has been, and is now, the exclusive
collective-bargaining representative of Respondent’s employees in the above
unit within the meaning of Section 9(b) of the Act.
5. By refusing to
provide the following information to the Union on and after February 11, 2002,
Respondent has engaged in unfair labor practice conduct within the meaning of
Section 8(a)(5) and (1) of the Act: a list of all subcontractors performing
work within the Union’s jurisdiction for the period of January 1, 1999, to present,
the date of each subcontract, the nature of the work, when the work was
performed, and the name of the subcontractor.
6. The aforesaid
unfair labor practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.
7. Respondent has
not otherwise violated the Act.
Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended
ORDER
The Respondent, Disneyland
Park and Disney’s California
Adventure, Divisions of Walt Disney World Co., Anaheim, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist
from
(a) Refusing to bargain collectively with the Union by
refusing to furnish the Union with the following information: a list of all
subcontractors performing work within the Union’s
jurisdiction for the period of January 1, 1999, to present, the date of each
subcontract, the nature of the work, when the work was performed, and the name
of the subcontractor.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act:
(a) On request, bargain collectively with the Union by furnishing
it with the following information: a list of all subcontractors performing work
within the Union’s jurisdiction for the period of January 1, 1999, to present,
the date of each subcontract, the nature of the work, when the work was
performed, and the name of the subcontractor.
(b) Within 14 days after service by the Region, post at
its facility in Anaheim, California, copies of the attached notice
marked “Appendix.” Copies
of the notice, on forms provided by the Regional Director for Region 21 after
being signed by the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondent at any time
since February 11, 2002.
(c) Within 21 days
after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, San
Francisco, California,
May 15, 2003
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States
Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not do anything that interferes with these rights. More particularly,
We will not refuse to bargain collectively with the International
Association of Bridge, Structural and Ornamental Iron Workers, Local 433,
AFL–CIO (the Union) by refusing to furnish the Union with information necessary
and relevant to the Union’s performance of its responsibilities in representing
employees.
We will not in any like or related manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you by Section 7 of the
Act.
We will, on request, bargain collectively with the Union by
furnishing the Union with the first part of
the information requested in its letter of February 11, 2002.
Disneyland Park and Disney’s California Adventure,
Division of Walt Disney World Co.
