McDonald's USA, LLC, a joint employer, et al.

National Labor Relations Board - Unpublished Board Decisions

Apr 21, 2015

02-CA-093893 (N.L.R.B. Apr. 21, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
LEWIS FOODS OF 42ND STREET, LLC, A
McDONALD’S FRANCHISEE, AND
McDONALD’S USA, LLC, JOINT EMPLOYERS,
et al.
and Cases 02-CA-093893, et al.
04-CA-125567, et al.
FAST FOOD WORKERS COMMITTEE AND 13-CA-106490, et al.
SERVICE EMPLOYEES INTERNATIONAL 20-CA-132103, et al.
UNION, CTW, CLC, et al. 25-CA-114819, et al.
31-CA-127447, et al.
ORDER1
Respondent McDonald’s USA, LLC’s request and supplemental request for special
permission to appeal the February 9, 2015 Order of Administrative Law Judge Lauren
Esposito denying its Request for Reconsideration Regarding Transcription of Conference
Call are denied. The Respondent has failed to establish that the judge abused her
discretion in denying the Respondent’s Request To Create An Official Record Of The
February 11, 2015 Teleconference.2

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 Member Johnson agrees with his colleagues that the Respondent has failed to establish
that the judge abused her discretion in denying the Respondent’s request that the
February 11, 2015 prehearing conference call be transcribed by a court reporter. Member
Johnson regrets that the Board has taken so long to issue the order in this matter, and
believes that the Board can and should achieve a more timely turnaround in the future on
similar matters. However, Member Johnson notes that the Respondent did not file its
request for special permission to appeal (208 pages long) until January 10, 2015, only one
day before the prehearing conference was scheduled, and eleven days after the Judge
first indicated that the prehearing conference would not be transcribed or recorded.
Member Johnson would like to remind all parties of the following, especially in the
context of a massive case like this one, with near daily filings, which itself is only one of
hundreds of cases pending before the Board in which there are also frequent filings. If
parties need expedited consideration of issues, they should caption their filings
accordingly, make the request clear in a motion, contact the Office of the Executive
Secretary to inform the Board of the need for expedition, and make any other appropriate
2
Dated, Washington, D.C., April 21, 2015.
MARK GASTON PEARCE, CHAIRMAN
HARRY I. JOHNSON, III, MEMBER
LAUREN McFERRAN, MEMBER

effort to indicate to the Board the time sensitive nature of the request. Under Section
102.26 of the Board’s Rules and Regulations, requests for special permission to appeal
from a ruling of the judge, together with the appeal from such ruling, must be “promptly”
filed. Although the term “promptly” is not specifically defined, common sense dictates that
it be defined by the circumstances of each particular case. In this case, the Respondent
waited until it was not practicable for the Board to consider the voluminous pleadings and
then act in a timely fashion, especially given that the Respondent did not make a clear
request for expedited consideration.