Walt Disney World Co.

National Labor Relations Board - Board Decisions

Mar 4, 1975

216 N.L.R.B. 836 (N.L.R.B. 1975)

836 DECISIONS OF NATIONAL LABOR RELATIONS` BOARD
Walt Disney World Co. and Harry E. Winkler and
Henry W. Davis . Cases 12-CA-6396 and 12-CA-
6396-2
March 4, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon charges duly filed, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 12, issued a complaint and
notice of hearing on July 24, 1974, against Walt
Disney World Co., Respondent. The complaint
alleged that the Respondent had engaged in, and was
engaging in, certain unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (3),
and (4) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charges and of the complaint and notice of hearing
were duly served on the parties. On August 1, 1974,
the Respondent filed its answer to the complaint
denying the commission of unfair labor practices and
requesting that the complaint be dismissed.
Thereafter, the parties entered into a stipulation of
facts and jointly moved to transfer this proceeding
directly to the Board for findings of fact, conclusions
of law, and order. The parties waived a hearing
before, and the making of findings of fact, conclu-
sions of law, and issuance of a decision by, an
Administrative Law Judge, and stipulated that no
oral testimony is necessary or desired by any of the
parties.' The parties also agreed that the charges,
complaint, answer, and stipulation constitute the
entire record in this proceeding.
On September 4, 1974, the Board issued its order
approving the stipulation and transferring the pro-
ceeding to the Board. Thereafter, the General
Counsel, the Charging Parties, and the Respondent
filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the stipulation, includ-
ing exhibits, and the entire record in this proceed-
ing,2 and hereby makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Florida corporation, has its princi-
pal place of business in Orange and Osceola
Counties, Florida, where it is engaged in the
operation of a vacation and entertainment complex.
During the past 12 months, Respondent had gross
revenues in excess of $500,000, and in the course and
conduct of its business , purchased and received
goods and materials valued in excess of $50,000,
directly from points located outside the State of
Florida.
The complaint alleges , Respondent admits, and we
find that Walt Disney World Co. is, and has been,
engaged in commerce within the meaning of Section
2(6) and (7) of the Act. We find that it will effectuate
the purposes of the Act to assert jurisdiction herein.
H. THE UNFAIR LABOR PRACTICES
A. Facts
At approximately 2:30 p.m. on June 3, 1974,
employee Harry E. Winkler was served by the Union
with a Board subpoena ad testificandum requiring his
attendance at a representation hearing scheduled on
June 4, 1974.3 Upon receipt of the subpena, Winkler
went to his immediate supervisor, Loren Greenwood,
and told him that he had received an NLRB subpena
that required him to attend the June 4 hearing and
asked Greenwood what to do. Greenwood, after
consulting with Respondent's counsel, told him that
he was to report to work the following day and,
failing to do so, he would be subject to disciplinary
action. Winkler was also advised by Greenwood that
he had 5 days in which to petition the Board to
revoke the subpena.
Between 6 and 7 p.m. on June 3, 1974, Davis was
also served with a Board subpoena ad testificandum
requiring his attendance at the representation hear-
ing scheduled for June 4, 1974. Prior to the hearing,
on the morning of June 4, Davis tried unsuccessfully
to contact his supervisor to advise him of the
subpena and his absence from work that day.
Winkler and Davis both attended the hearing on
June 4, 1974, and Davis attended also on June 5,
1974, but neither was called as a witness to testify by
the Union. However, they appeared at the counsel
table and assisted the union attorney. During the
hearing, Respondent's manager of labor relations,
Reudebusch, informed both men that because of
I The parties agreed that the stipulation was made without prejudice to
any objection that any party may have as to the materiality or relevancy of
any facts stated therein
2 Respondent 's request for oral argument is hereby denied, as the record
and the briefs adequately present the issues and positions of the parties. The
216 NLRB No. 35
General Counsel's request to strike what is referred to as "Attachment A" of
the Respondent's brief is hereby granted since the purported exhibit is
clearly outside the record which the parties had agreed to.
3 Walt Disney World Company, 215 NLRB No. 89 (1974).
WALT DISNEY WORLD CO. 837
their absence from work without authorization they
were placing their jobs in jeopardy and were subject
to severe disciplinary action.
Davis was suspended by Respondent for investiga-
tion from Thursday, June 6, until Tuesday, June 11,
1974. He was subsequently paid for the days of
missed work during his suspension , but a written
reprimand was placed in and remains in his person-
nel file.
Winkler was suspended by Respondent for investi-
gation from Friday, June 7, through Friday, June 14,
1974. He also was given a written reprimand which
was placed in and remains in his personnel file.
Winkler was reinstated to his job, but he was not
reimbursed for the period of his suspension from
employment.
Winkler and Davis were scheduled to work June 4
and 5 , 1974, as per their respective work schedules-
Winkler as a pageant host and Davis in the print
shop. The workweek and workday for pageant
host/hostesses consists of a 7 -day workweek with a
single shift workday commencing at 9 a.m. and
ending at 6 p .m. Print shop employees work an 8
a.m.-5 p.m. workday and a 5-day Monday to Friday
workweek . On the days in question 29 pageant
host/hostesses were scheduled to work and 29
pageant host/hostesses were scheduled off.
B. Issue
The parties have stipulated that the issue to be
decided in this case is whether Respondent 's action
in disciplining its employees Winkler and Davis for
absenting themselves from work without authoriza-
tion from the Company in response to a subpena to
testify at a National Labor Relations Board repre-
sentation hearing , taken in the factual circumstances
of this case , constitutes an unfair labor practice as
alleged in the complaint.
C. Contentions of the Parties
Respondent contends : ( 1) it did not violate Section
8(a)(1) of the Act by its nondiscriminatory enforce-
ment of existing work for rules unauthorized ab-
sences; 4 (2) it did not violate Section 8(a)(3)of the Act
inasmuch as its bona fide efforts to maintain
employee discipline and efficiency by its nondispa-
rate insistence that the employees adhere to standard
published rules and procedures did not encourage or
4 In support of this argument Respondent cites two cases, John
Wanamaker, Philadelphia, Inc., 199 NLRB 1266 (1972) ( Member Fanning
dissenting in relevant part ), and Iowa Beef Processors, Inc., 186 NLRB 521
(1970), where the Board found that employers had not violated the Act by
disciplining employees who attended Board hearings without permission
from a supervisor . However , neither case is apposite because in Wanamaker
the employees did not attend pursuant to subpena, and in Iowa Beef the
employee was disciplined for unexcused absences unrelated to the subpena
before the employer learned that he had been subpenaed.
discourage membership in a labor organization; and
(3) it did not violate Section 8(a)(4) of the Act by the
prudent exercise of its rights under the Act and it did
not discipline or discriminate against its employees
due either to their attendance at an NLRB proceed-
ing or for responding to an NLRB subpena.
The General Counsel argues that Respondent
attempted to coerce Davis and Winkler into not
honoring the subpenas and not attending the
hearing, thereby interfering with the effectiveness of
the Board's processes. He asserts that Respondent's
true obligation with respect to subpenaed witnesses is
one of noninterference, nonrestraint, and noncoer-
cion as to an employee's right and obligation to
attend scheduled hearings as a subpenaed witness,
and one of nonreprisal against such employees
because they are subpenaed witnesses. Accordingly,
the General Counsel requests that the Board find
that Respondent illegally threatened, coerced, and
disciplined Winkler and Davis for attending an
NLRB representation hearing in response to a Board
subpena.
D. Discussion
The Act and the Rules and Regulations of the
Board clearly provide that a person served with a
subpena is required to appear and to give testimony
pursuant to the subpena.5 Until the person served
with the subpena petitions to have the subpena
revoked, he continues to be under an obligation to
appear pursuant to the subpena.6 A respondent
employer's "obligation, with respect to subpoenaed
employee witnesses, is one of noninterference,
nonrestraint, and noncoercion as to such employees'
right and obligation to attend scheduled hearings as
subpoenaed witnesses , and one of nonreprisal to such
employees because they are subpoenaed witnesses." 7
"Once an employee has been subpoenaed," the
Supreme Court has said, "he should be protected
from retaliatory action regardless of whether he has
filed a charge or has actually testified."8
Respondent contends that it disciplined Davis and
Winkler not because of their attendance at the
NLRB hearing or for responding to an NLRB
subpena, but because they violated established and
recognized company rules concerning the proper
procedures for seeking an authorized leave of
absence. But Respondent's rules of procedure cannot
5 Winn -Dixie Stores, Inc, and Winn -Dixie Greenville, Inc., 128 NLRB
574,579 ( 1960).
6 Ibid.
r Neptune Meter Company, 212 NLRB 87 (1974), par 5 of "Contentions
and Conclusions."
8 N L.R.B v. Scrivener, 405 U.S. 117, 124 ( 1972), citing with approval
Eugen Pederson v. N.LR.B., 234 F.2d 417, 420 (C.A. 2, 1956), where the
court stated . "It is, we think , a permissible inference that Congress intended
the protection [of Section 8(ax4) ] to be as broad as the [subpena ] power."
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limit or restrict an individual's obligation to respond
to a Board subpena. The stipulated facts show that
Respondent was aware that Winkler and Davis had
been subpenaed and that its conduct could only have
had the effect, if successful, of dissuading the two
employees from responding to their subpenas. Thus,
when Winkler upon receiving his subpena told his
supervisor, Greenwood, that he had received a
subpena requiring him to attend the hearing on the
following day, and asked what he was to do,
Greenwood replied, after consulting Respondent's
counsel, that he was to report for work and, if he
failed to do so, he would be subject to disciplinary
action. During the hearing, Manager of Labor
Relations Ruedebusch also informed both employees
that because of their absence from work they were
subject to severe disciplinary action.
The written reprimand served on employee Davis
recited:
This investigation reveals that on June 4, 1974, at
approximately 6:00 A.M., you telephoned the
Lead of the Print Shop, Jim Thompson, stating to
him that you had been served with a subpoena the
night before, ordering your appearance before the
National Labor Relations Board regarding a
hearing between the Union (I.A.T.S.E.) and Walt
Disney World. At this time, Jim informed you
that he could not authorize your absence from
work since he was not a supervisor and advised
you to contact Lon McCabe, Assistant Manager-
Merchandising, in order to obtain approval to be
absent from work. You stated that you called
Lon's office, however, he was not available and
you left word with his secretary that you would
not be in to work due to the fact you were
subpoenaed.
At approximately 10:00 A.M., on June 4th, at the
National Labor Relations Board Hearing Room,
you were advised by John Ruedebusch, Manager,
Labor Relations , that you were placing your
employment in serious jeopardy by being away
from work without authorization. At this time you
consulted with Mr. Frank Hamilton, attorney for
the Union, and according to you, he advised you
to honor the subpoena as it stands or face the
possibility of having it enforced against you as an
alternative for violating the "due process of law."
You stated that because Mr. Hamilton had
advised you to remain at the hearing and, not
being familiar with the legal aspect of a subpoena,
9 Winn-Dixie Stores, Inc., supra.
If Respondent anticipated that the attendance of Davis and Winkler at
the hearing would be seriously disruptive of its operations , the remedy was
not to warn the employees not to respond to the subpenas , but to work out
an accommodation with other parties so as to minimize the time the
you felt obligated to remain away from work
without permission and honor the subpoena
rather than face the possibility of legal action
against you.
The written reprimand served on employee Wink-
ler recited:
On Monday, June 3, 1974, at approximately 3:00
P.M., you showed me a subpoena issued by the
National Labor Relations Board in Tampa and
asked what you should do. I informed you I
would get back to you with an answer before your
shift ended at 6:00 P.M. After checking with top
management, I told you that you must report to
work on Tuesday, June 4, and emphasized that
you had prior committment to work at Walt
Disney World. I also told you that you had five
(5) days after receiving the subpoena to petition
in writing to revoke the subpoena and that if you
did not report to work on Tuesday you would be
subject to severe disciplinary action.
You did not report to work as directed on
Tuesday, June 4, nor did you attempt to contact
me and tell me you would not be at work. This
defiant attitude constitutes insubordination. Your
failure to report to work also obstructed the work
schedule, obligations and responsibilities of your
Department.
As the written reprimands make clear, the acts of
insubordination on the part of Winkler and Davis
consisted in disobeying the instructions of their
supervisors to ignore the subpenas and report to
work. It was because they failed to follow these
instructions that Winkler and Davis were disciplined.
In attempting to dissuade the two employees from
complying with the subpenas, Respondent disregard-
ed the fact that, until the person served with the
subpena petitions to have the subpena revoked, he
continues to be under an obligation to appear
pursuant to the subpena. And, although such person
has the right to seek revocation, the employer cannot
insist under threat of disciplinary action that the
person subpenaed take such action .9
Accordingly, we find that the above-described
conduct of Respondent interfered with the right of
employees to participate in proceedings before the
Board and that it tended to impede the Board in the
exercise of its power to compel the attendance of
witnesses at its proceedings and to obstruct the
employees would be away from work . Neptune Meter Company, supra.
Respondent made no such attempt . Further, the stipulation contains no
evidence which would warrant a finding that the presence of Davis and
Winkler at the hearing seriously inconvenienced Respondent's operations
WALT DISNEY WORLD CO. 839
Board in its investigation . As this conduct had the
tendency to deprive the employees of vindication by
the Board of their statutory rights, it violated Section
8(a)(1) of the Act.10 Moreover, as Respondent's
disciplinary action against Winkler and Davis tended
to restrain them and other employees from partici-
pating in Board proceedings, we find that by such
conduct Respondent also violated Section 8(a)(4) of
the Act."
III. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The conduct of Respondent set forth above,
occurring in connection with its operations as set
forth in section I, have a close, intimate, and
substantial relation to trade, traffic, and commerce
among the several States, and tends to lead to labor
disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent Walt Disney World Co. is an
employer engaged in commerce and in operations
affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By discriminatorily suspending and issuing
reprimands to employees Winkler and Davis for
attending an NLRB hearing pursuant to subpena,
Respondent violated Section 8(a)(1) and (4) of the
Act.
3. The unfair labor practices engaged in by
Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having fou.id that Respondent has engaged in,
and is engaging in, certain unfair labor practices, we
shall order it to cease and desist therefrom. In order
to effectuate the purposes of the Act, we shall also
order Respondent to make whole employee Harry E.
Winkler for any loss of earnings he may have
suffered during the period from the beginning of his
suspension to the date of his reinstatement, comput-
ed in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). We
iO Ibid.
it N L R. B. v Scrivener, supra . Fuqua Homes (Ohio), Inc, 211 NLRB 399
(1974); Neptune Meter Company, supra.
In view of our finding that by the disciplinary action taken against
employees Winkler and Davis Respondent violated Sec . 8(aXI) and (4) of
the Act , we find it unnecessary to decide whether, as alleged in the
complaint , the foregoing conduct also violated Sec . 8(a)(3), inasmuch as the
remedy would be the same even if the additional violation were found.
The parties by stipulation limited the issues to a question of whether
Respondent 's disciplinary actions constituted an unfair labor practice (see
shall also order Respondent to treat as a nullity and
to remove from the personnel files the reprimand
notices issued to Winkler and Davis.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Walt Disney World Co., Lake Buena Vista, Florida,
its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Suspending employees for attending hearings of
the National Labor Relations Board pursuant to
subpena.
(b) Issuing reprimands, written or otherwise, to
employees because they attended hearings of the
National Labor Relations Board pursuant to subpe-
na.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the Act:
(a) Make Harry E. Winkler whole, in the manner
set forth in the section of this decision entitled "The
Remedy," for any loss of earnings he may have
suffered as a result of the discrimination practiced
against him.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Remove from the personnel files the reprimand
notices issued to Harry E. Winkler on June 14, 1974,
and to Henry W. Davis on June 11, 1974, and
consider those notices null and void.
(d) Post at its premises in Lake Buena Vista,
Florida, copies of the attached notice marked
"Appendix." 12 Copies of said notice, on forms
provided by the Regional Director for Region 12,
after being duly signed by Respondent's representa-
tive, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
sec B, above) Accordingly , we make no findings with respect to the
allegation that Respondent unlawfully threatened Winkler when , on June 3,
Supervisor Loren Greenwood told Winkler that he would be subject to
disciplinary action if he did not report to work on June 4
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered , defaced, or covered by any other material.
(e) Notify the Regional Director for Region 12, in
writing , within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We are posting this notice to comply with the order
issued by the National Labor Relations Board which
found that we violated the law and has ordered us to
post this notice . We intend to carry out the order of
the Board and abide by the following:
WE WILL NOT suspend employees for attending
a hearing of the National Labor Relations Board
pursuant to subpena.
WE WILL NOT issue reprimands , written or
otherwise , to employees because they attended
hearings of the National Labor Relations Board
pursuant to subpena.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce employees in the
exercise of rights guaranteed in Section 7 of the
Act.
Because it has been decided that we discrimina-
torily suspended Harry E. Winkler and Henry W.
Davis , WE WILL pay Harry E. Winkler for any
wages he lost during his period of suspension.
Henry W. Davis has already been reimbursed for
pay lost during the period of his suspension.
Because it has been decided that we discrimina-
torily reprimanded Harry E. Winkler and Henry
W. Davis , WE WILL remove from their personnel
files the reprimand notices issued to Harry E.
Winkler on June 14 , 1974, and to Henry W. Davis
on June 11 , 1974, and will consider those notices
to be null and void.
WALT DISNEY WORLD
Co.