Disneyland Hotel

National Labor Relations Board - Administrative Judge Opinions

Dec 31, 2009

21-CA-037608 (N.L.R.B. Dec. 31, 2009)

JD(SF)–49–09
Anaheim, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
WALT DISNEY WORLD CO., D/B/A
DISNEYLAND HOTEL, DISNEY’S
PARADISE PIER HOTEL, AND
DISNEY’S GRAND CALIFORNIAN HOTEL
and Case 21-CA-37608
ERASMO ROSAS, An Individual
Stephanie Cahn, Esq., for the General Counsel.
Kirill Penteshin, for the Union.
Laura Fleming and Daniel F. Fears, Esqs.,
(Payne & Fears, LLP) of Irvine, CA,
for the Respondent.
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case, among others,1 was heard
in Los Angeles, California, on December 1-2, 2009. The charge was filed January 12, 2007,2 by
Erasmo Rosas, an individual, and the complaint was issued October 6, 2008. The complaint
alleges that on January 7 Walt Disney World Co., d/b/a Disneyland Hotel, Disney’s Paradise
Pier Hotel, and Disney’s Grand Californian Hotel (herein Disney) violated Section 8(a)(1) by
refusing to accord Rosas his Weingarten3 rights. This charge was originally deferred under
Collyer Insulated Wire, 192 NLRB 837 (1971). Apparently Rosas refused to file a grievance but
instead of dismissing the charge the Regional Director decided to issue a complaint. For
reasons described below I defer the case again to the grievance-arbitration procedure.
On the entire record I make the following.

1 At the hearing, I severed this case from case 21-CA- 38509, 38473 and 38764 and approved an
informal settlement agreement signed by the General Counsel and Disney covering these three cases
over the objections of the Union. I also severed case 21-CA-38410 from these cases and approved the
Union’s request to withdraw that charge after reaching a non- Board settlement with Disney.
2 All dates are in 2007 unless otherwise indicated.
3 NLRB v. J. Weingarten, Inc. , 420 U.S. 251 (1975).
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Findings of Fact
I. Jurisdiction
Disney, a corporation, is engaged in the hotel services and the amusement and theme
park industries at its facilities in Anaheim, California, where it annually derives gross revenues in
excess of $500,000 and purchases and receives at those facilities goods valued in excess of
$50,000 directly from points located outside the State of California. Disney 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 UNITE HERE! Local 11 (herein the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
As indicated, the complaint alleges a breach of Weingarten. During the relevant time
period the Union represented certain employees, including Rosas, employed by Disney. The
Union and Disney had a collective-bargaining agreement covering those employees, and that
agreement had a grievance-arbitration procedure. That agreement also provides that an
employee may request that a union representative “be present during an investigatory
conference with management.” At the hearing Disney agreed to waive the time limitations for
filing a grievance covering the matter at issue. Finally, the parties have an established
collective-bargaining relationship with a history of successful use of the grievance arbitration
procedure. Thus, all conditions are ripe for deferral of this matter to the contractual grievance-
arbitration procedure under Collyer and its progeny. Consolidated Freightways Corp., 288
NLRB 1252, 1255-56 (1988), petition for rev. denied sub nom. Hammontree v. NLRB, 925 F.2d
1486 (D.C. Cir. 1991).
Remedy
Without prejudice to any party and without deciding, the merits of the controversy, I shall
order that the complaint herein be dismissed, but the Board shall retain jurisdiction over this
dispute solely for the purpose of entertaining an appropriate and timely motion for further
consideration upon a proper showing that either (a) the dispute has not, with reasonable
promptness after the issuance of this decision, either been resolved by amicable settlement in
the grievance procedure or submitted promptly by Disney to arbitration, or (b) the grievance or
arbitration procedures have not been fair and regular or have reached a result which is
repugnant to the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.4

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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ORDER
The complaint is dismissed, provided, however, that jurisdiction of this proceeding is
hereby retained for the limited purposes indicated in that portion of the Decision and Order
herein entitled "Remedy."
Dated, Washington, D.C., December 31, 2009.
____________________
William G. Kocol
Administrative Law Judge