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

National Labor Relations Board - Unpublished Board Decisions

Sep 16, 2020

02-CA-093893 (N.L.R.B. Sep. 16, 2020)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
McDONALD’S USA, LLC, A JOINT EMPLOYER,
et al.
and Cases 02-CA-093893 et al.
FAST FOOD WORKERS COMMITTEE AND
SERVICE EMPLOYEES INTERNATIONAL
UNION, CTW, CLC, et al.
ORDER DENYING MOTION TO REOPEN THE RECORD
AND FOR RECONSIDERATION1
The Charging Parties’ Motion to Reopen the Record and for Reconsideration of
the Board’s Order Remanding reported at 368 NLRB No. 134 (2019) is denied.2 The
Charging Parties have not identified any material error or demonstrated extraordinary
circumstances warranting reconsideration under Section 102.48(c)(1) of the Board’s
Rules and Regulations.3 Nor have the Charging Parties identified any basis, under that
1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel. Chairman Ring took no part in the consideration of this motion or
the underlying Order Remanding.
2 The General Counsel and McDonald’s USA, LLC filed oppositions to the Charging
Parties’ motion, and the Charging Parties filed reply briefs. Chicago Franchisees V.
Oviedo, Inc.; K Mark Enterprises, LLC; Karavites Restaurants 11102, LLC; Karavites
Restaurants 26, Inc.; Karavites Restaurant 5895, Inc; Taylor & Malone Management;
Seven McD, Inc.; Karavites Restaurant 6676, Inc.; and Topaz Management filed a brief
in support of McDonald’s USA, LLC’s opposition, as did New York Franchisees AJD,
Inc.; Lewis Foods of 42nd Street, LLC; 18884 Food Corporation; 14 East 47th Street,
LLC; John C Food Corp.; 1531 Fulton St., LLC; McConner Street Holding LLC’s store
located at 2142 Third Avenue; McConner Street Holding LLC’s store located at 2049
Broadway; Mic-Eastchester, LLC’s store located at 341 Fifth Avenue; and Bruce C.
Limited Partnership’s store located at 4259 Broadway.
3 The Charging Parties argue, among other things, that Chairman Ring and Member
Emanuel should have been recused from this case based on their prior affiliation with
the law firms of Morgan Lewis and Littler Mendelson, respectively. However, we have
2
same section, why the record should be reopened.4 The Charging Parties’ request for a
stay of the Board’s Order Remanding is denied as moot.
Dated, Washington, D.C., September 16, 2020.
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
previously addressed the Charging Parties’ arguments in this regard. McDonald’s USA,
LLC, 368 NLRB No. 134, slip op. at 1 fn. 2.
Member McFerran adheres to the views expressed in her dissent from the
Board's Order Remanding. Nevertheless, she concurs in the denial of the present
motion solely because the Charging Parties have not established grounds for
reconsideration under Sec. 102.48(c)(1) of the Board's Rules.
4 The Charging Parties assert that the record should be reopened so that they can
present additional evidence in support of their Motion to Recuse Member Emanuel. The
evidence the Charging Parties seek to adduce is an apparently leaked internal Agency
document from February 9, 2018. Even if the document were authenticated and
admissible, the Charging Parties have failed to explain why that document, “if adduced
and credited . . . would require a different result,” as required under Sec. 102.48(c)(1) of
the Board’s Rules and Regulations. The proffered document is not from the Agency’s
Designated Agency Ethics Official (DAEO) and contains no evident input from the
DAEO or Member Emanuel. It is also devoid of any discussion of the Charging Parties’
recusal motion or federal ethics requirements. The Order Remanding, not the proffered
document (which predates the Order Remanding by 21 months), provides Member
Emanuel’s rationale for his determination, in consultation with the DAEO, that it was
unnecessary for him to recuse himself in this matter. McDonald’s USA, LLC, 368 NLRB
No. 134, slip op. at 1 fn. 2. Accordingly, the Charging Parties have not established a
basis for reopening the record.
The General Counsel has requested that we strike from the record the evidence
the Charging Parties seek to adduce and all references to it. We deny the request as
the evidence does not affect our disposition of the Charging Parties’ motion.