Disneyland Resort

National Labor Relations Board - Administrative Judge Opinions

Jan 24, 2007

21-CA-037243 (N.L.R.B. Jan. 24, 2007)

JD(SF)–02–07
Anaheim, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
DISNEYLAND RESORT, DIVISION OF WALT DISNEY
WORLD CO., AND WALT DISNEY PARKS & RESORTS
LLC, d/b/a DISNEYLAND HOTEL, DISNEY’S PARADISE
PIER HOTEL & DISNEY’S GRAND CALIFORNIAN
HOTEL
and Case 21-CA-37243
INDEPENDENT EMPLOYEES SERVICE ASSOCIATION
Patrick J. Cullen, Esq., for the General Counsel.
Daniel F. Fears, Esq., (Payne & Fears, LLP),
of Irvine, California, for Respondent.
Dana S. Martinez, Esq., (Holguin & Garfield),
of Los Angeles, California, for the Union
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Los Angeles, California,
on October 30, 2006. The charge was filed April 13, 2006,1 by the Independent Employees Service
Association (herein the Union) and the complaint was issued June 30. The complaint alleges that
Disneyland Resort, Division of Walt Disney World Co., and Walt Disney Parks & Resorts LLC, d/b/a
Disneyland Hotel, Disney’s Paradise Pier Hotel & Disney’s Grand Californian Hotel (herein Disneyland)
violated Section 8(a)(5) and (1) by failing to provide the Union with requested information. Disneyland
filed a timely answer that denied it had violated the Act. Although the complaint alleges a failure to
provide information, the General Counsel does not seek to require Disneyland to actually give the
requested information to the Union.
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel, Disneyland, and the Union, I make the following.
Findings of Fact
I. Jurisdiction
Disneyland, a corporation, is engaged in the hotel services and amusement and theme park
industry with a facility at 1313 Harbor Boulevard, Anaheim, California, where it annually derives gross
revenues in excess of $500,000 and purchases and receives goods valued in excess $50,000 from points
outside the State of California. Disneyland admits and I find that it is an employer engaged in commerce

1 All dates are in 2006 unless otherwise indicated.
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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. Background
Since at least about April 1, 2005, the Union has represented the regular and casual temporary
Disneyland employees described in their collective-bargaining agreement and employed out of the
Disneyland facility located at 1313 Harbor Boulevard, Anaheim, California, but excluding all other
employees and supervisory employees as defined in the Act. The unit is composed of security guards.
The collective-bargaining agreement runs from April 1, 2005, to March 31, 2008. Disneyland recognizes
about 25 labor organizations and frequently receives requests for information. There is no evidence that
Disneyland has any history of unlawfully failing to provide information that a union has requested.
When complaints of sexual harassment are made by employees, Disneyland assembles a
compliance team to conduct an investigation. During the investigation the compliance team may take
witness statements and make notes of its investigation.
B. Facts
Alfred Welch is a security officer for Disneyland. On or about January 31 Disneyland placed
Welch on an investigatory suspension without pay for allegedly harassing a coworker. On about
February 8 or 10, Disneyland received an information request from Andrew Sackett, the Union’s attorney,
concerning Welch’s temporary suspension. Adam Smith was a security officer for Disneyland. On about
February 6, Disneyland also placed Mr. Smith on an investigatory suspension without pay for allegedly
harassing a coworker. On about February 7 or 8, Disneyland received an information request from
Sackett concerning Smith’s temporary suspension. The information requests are identical and contained
seven items of information only four of which are at issue in this proceeding. Those four items are:
• All correspondence, e-mails, memos, phone notes, and complaints concerning
and/or referring to allegations of sexual or other misconduct on the part of
[Welch/Smith].
• The personnel file of [the] accuser.
• The document known as Chapter 7.
• The personnel files and supporting documentation of all security officers who
have received any level of discipline for sexual misconduct.
The three items of information that Disneyland did give to the Union included the personnel files of Welch
and Smith. The investigation of the allegations against Smith and Welch were still ongoing at the time the
Union made the requests for information.
Jeffrey Levon, Disneyland’s labor relations manager, responded in writing to the Union’s request
for information. Disneyland provided the Union with certain information but it “object[ed]” to providing
other information. Disneyland claimed that the information request was premature because no discipline
had been issued and no grievance had been filed. Disneyland also claimed that the last three items listed
above were “vague, ambiguous, overly broad, unduly burdensome, and they seek irrelevant and
confidential information.” Disneyland concluded by inviting the Union to contact it if the Union had any
questions or comments. Disneyland did not provide the Union with the personnel files of the “accusers”
of Welch or Smith. Disneyland also did not provide the Union with copies of “Chapter 7”; Disneyland
does not have such a document. Finally, Disneyland did not give the Union the personnel files and
supporting documentation of all security officers who have received any level of discipline for sexual
misconduct.
Melanie Ann Young has worked for Disneyland as a security guard for 15 years. Young is also
president of the Union. Young explained that the Union generally requested the information to determine
whether to file grievances on behalf of the Welch or Smith. Although Young testified that the Union did
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not receive any documents in response to item 1, she did not directly receive the documents from
Disneyland; they were sent to Andrew Sackett, the Union’s attorney. Moreover, she never reviewed the
documents either; instead she relied on a description of what had been provided from the Union’s
attorney. In fact, Disneyland gave the Union a copy of Welch’s statement. Levon testified that he was
unaware of any other documents that were responsive to this request. But he admitted that he did not
contact the compliance team to ascertain whether it had documents covered by the Union’s information
request. He explained at the trial that he would have considered giving the information once the
investigations were complete but he did not want to provide the information prior to the completion of the
investigation for fear of possibly tainting the investigation.
With regard to the request concerning the personnel files of the accusers, Young explained that
the Union viewed this necessary to determine whether the accusers had a history or pattern of making
such accusations and, if so, whether discipline resulted from the accusation. Personnel files contain
irrelevant matters, such as employment applications; they also contain confidential matters such as social
security numbers and medical records. When Young was asked why the Union did not narrow the
request to focus on the documents that might show the accusers’ history concerning complaints of sexual
harassment she explained that it was easier to request the entire file.
Concerning the request for the Chapter 7 documents, Disneyland does not have any such
documents. Young explained, based on hearsay reports, that when Welch met with the compliance
team, member Brenda Shockley referred to “Chapter 7” and the Union did not know what that meant so
the Union requested it. Levon testified that at some point he told the Union that he did not know what a
Chapter 7 was. Levon thought he might have mentioned this to Sackett during the February 23 telephone
conversation described below. Levon explained that after he received the Union’s request for the
Chapter 7 documents, he talked to other labor relations managers and none of them knew what a
Chapter 7 was. Young admitted that at some point she heard indirectly that Levon had indicated that
there was no document known as Chapter 7. I conclude that at some point soon after the Union made
the information request Levon advised a union official that that Disneyland did not have a document
described as Chapter 7.
Concerning the request for the personnel files and supporting documentation of other security
officers who had been disciplined for sexual misconduct, Young explained that the Union wanted those
documents if Welch or Smith were disciplined to determine whether that discipline was consistent with
what other employees received. Disneyland has employed security guards since 1955.
On February 23 Sackett called Levon because, although Levon had indicated in his letter that he
had enclosed Smith’s personnel file, in fact that file had not been included in the information that Sackett
had received. When Sackett told Levon of this, Levon promised to send Sackett the missing documents.
Sackett and Levon then briefly discussed an unrelated matter and the conversation ended. Sackett did
not raise any other issues concerning Disneyland’s response to the Union’s request for information. On
February 27, Levon sent Sackett the missing file and again invited Sackett to contact him if he had any
questions or comments.
On about April 7, Young called Levon concerning an employee who Disneyland had put on leave
and had seen a psychologist but who was required to see a second psychologist. The conversation
became heated as Young pressed the point of why the employee was being sent a second time if the first
psychologist had cleared him. At some point Young asked why they were not working together and
Disneyland was not cooperating with the Union and pointed out that the information that the Union had
requested, including the Welch and Smith matters, was not being received. Levon, who at that point
thought the Union had been satisfied with his response because the Union had not raised the matter
further since he provided some information weeks earlier, asked Young to explain how the additional
information was relevant and necessary for the Union. Young was unable to do so and said that the
Union needed to file charges with the Board; Young then hung up. Less than a week later the Union filed
the charge in this case.
The facts in the preceding paragraph are based on a composite of the credible testimony of
Young and Levon. I have considered Young’s testimony that she hung up the telephone before Levon
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could respond after she raised the lack of receipt of requested information. I credit Levon’s testimony on
this point. In general he was a more convincing witness; Young was unnecessarily combative and eager
to score points rather than simply relate the facts. Also, against the entire backdrop of evidence in this
case, I think it more likely than not that Levon would have responded to the Union’s claim that he had
failed to adequately provide requested information.
The Union did not file grievances over the Welch and Smith matters.
C. Analysis
An employer must provide a union with information that the union requests if the information is
useful to the union’s obligation to represent the employees as their exclusive collective bargaining
representative. NLRB v. Acme Die Casting Co., 385 U.S. 432 (1967). Here the Union requested the
personnel files of the accusers. This request patently included both irrelevant and confidential material.
The Union also requested the personnel files of “all” security officers who have received “any level of
discipline” for sexual misconduct. This request, in addition to requesting irrelevant and confidential
information, was also patently overbroad inasmuch as Disneyland has used security guards for over 50
years. Disneyland correctly pointed this out to the Union in its responses to the Union’s requests for this
information. Disneyland did not refuse to provide this information; it instead “object[ed]” to having to
provide this information and invited the Union to contact it if the Union had any questions or comments.
The Union did not do so until Young raised the matter with Levon in early April. And when Levon sought
to discuss the matter with Young, she hung up the telephone and the Union thereafter filed a charge with
the Board.
The General Counsel and the Union argue that Disneyland should have done more and its failure
to do so violated federal law. In support of this argument the General Counsel and the Union cite Keahou
Beach Hotel, 298 NLRB 702 (1990) for the proposition that an employer may not simply refuse to comply
with an ambiguous or overbroad information request, but must request clarification and/or comply with the
request to the extent that it encompasses necessary and relevant information. In Keahou Beach the
employer refused to recognize the union in order to test the validity of the Board’s certification. The union
requested information and the employer simply refused to respond to the request. The employer first
raised objections to the union’s information request in a summary judgment proceeding. Those facts are
different from the facts here, where Disneyland did respond, gave some information, voiced legitimate
objections to other requests, and invited the Union to respond in light of those objections. It is not
necessary that an offer to bargain further be made in any specific language; it is enough that an employer
has voiced valid objections and invites further discussion of the matter.2 Northern Indiana Public
Service, 347 NLRB No. 17 (2006). In this case context is important. Disneyland deals with many labor
organizations and, so far as this record shows, has routinely provided them with requested information.
In this context the Union should have understood that Disneyland was not refusing to provide the
information but instead was inviting further discussion on the matter. Disneyland should not be required
to guess at what records in the personnel files the Union might consider relevant, nor should it have to
guess how many years worth of files the Union might deem sufficient. The General Counsel cites
Goodyear Atomic Corp., 266 NLRB 890, 891 (1983) indicating that an employer must substantiate a claim
that an information request is unduly burdensome and offer to bargain with a union over an
accommodation. But here the Union’s request that Disneyland canvass a half-century of personnel files
was obviously burdensome by its very nature. The General Counsel next cites Association of D.C. Liquor
Wholesalers, 300 NLRB 224, 229 (1990) and Pennsylvania Power and Light Co., 301 NLRB 1104. 1105
(1991) and argues that an employer bears the burden of proving confidentiality. But here Disneyland has
established that the personnel files contain confidential information. More importantly, the Union knew
this also yet made a blanket request to see the entire file, including what it knew would be confidential
information. The General Counsel also points out that information concerning unit employees rates of

2 The General Counsel makes much of the fact that Levon conceded in his testimony that the
language he used in the letters responding to the Union’s information requests did not specifically offer to
bargain with the Union. But the test is not Levon’s subjective assessment but rather the test is whether
objectively Disneyland met its legal obligations.
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pay etc. are presumptively relevant and that an employer bears the burden of showing a lack of
relevance, citing A-Plus Roofing, 295 NLRB 967-971-972. But here again Disneyland has established
that the personnel files contain much information that is irrelevant to the Union’s interest of assuring fair
treatment of employees accused of sexual harassment; the Union was aware of this fact but nonetheless
requested information that it knew was irrelevant to the issue it was pursuing. I shall dismiss these
portions of allegations in the complaint.
Concerning the Union’s request for the “Chapter 7” document, I have concluded above that
Disneyland does not have such a document and Levon informed the Union of this. Disneyland was
required to do nothing more. In its brief the Union contends that Chapter 7 was a policy of Disneyland.
But the record in this case does not support that contention. The mere mention of a “Chapter 7” in a
meeting, without the context in which it was used, is insufficient to establish it a company policy as
opposed to say, a misstated or misunderstood reference to a legal code or some other non Disneyland
policy. I dismiss this portion of the complaint too.
Lastly, I turn to the allegation that Disneyland failed to provide the Union with all correspondence,
e-mails, memos, phone notes, and complaints concerning and/or referring to allegations of sexual or
other misconduct on the part of Welch and Smith. Disneyland failed to do so. Levon admitted that he did
not even attempt to ascertain whether the compliance team had such information although he conceded
that it was likely that they did or would have. Disneyland defends on the basis that it has a normal
practice of providing the information to the Union after the investigation is completed. It delays providing
the information during the course of the investigation in order to avoid compromising the investigation. I
am persuaded by this argument. In his letter to the Union Levon indicated that the request for information
was premature in that no decision had yet been made concerning discipline. The record also supports
Disneyland’s assertion that it provides the information to the Union upon completion of the investigation
and in response to a timely request. Thus, Disneyland does not refuse to provide the information; it
instead delays providing it until the investigations are complete in order to enhance the efficacy of its
investigation. This seems an appropriate balance between the Union’s need to have this information to
determine whether to pursue grievances and Disneyland’s need to conduct effective investigations into
sensitive matters such as allegations of sexual harassment. Detroit Edison v. NLRB, 440 U.S. 301
(1979). As noted above, after Disneyland completed the investigation of the sexual harassment
allegations the Union elected not to file grievances. Under these circumstances I shall dismiss this
portion of the complaint also.
Conclusions of Law
Respondent has not violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended.3
ORDER
The complaint is dismissed.
Dated, Washington, D.C., January 24, 2007.
____________________
William G. Kocol
Administrative Law Judge

3 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.