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

National Labor Relations Board - Unpublished Board Decisions

Jan 16, 2018

02-CA-093893 (N.L.R.B. Jan. 16, 2018)

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.
04-CA-125567 et al.
FAST FOOD WORKERS COMMITTEE AND
SERVICE EMPLOYEES INTERNATIONAL
UNION, CTW, CLC, et al.
ORDER1
Respondent McDonald’s USA, LLC filed a request for special permission to
appeal (1) Administrative Law Judge Lauren Esposito’s order granting the petitions to
revoke the August 2017 subpoenas duces tecum served by the Respondent on
Charging Parties Service Employees International Union (SEIU), Fast Food Workers
Committee (FFWC), and Pennsylvania Workers Organizing Committee (PWOC), SEIU
employee Kendall Fells, and non-party New York Communities for Change (NYCC),
and (2) the judge’s order and supplemental order requiring the Respondent to create
and provide an expert report regarding the anticipated testimony of expert witness
Chekitan Dev.
The request for special permission to appeal from the order and supplemental
order regarding the creation of an expert report is granted, and on the merits we reverse
the judge’s ruling. As the judge acknowledged, the Board has not previously imposed
such a requirement. In addition, we find that there is no demonstrated need for an
expert report that cannot be met by alternate measures such as granting a continuance,

1 The Board has delegated its authority in this proceeding to a three-member panel.
2
if appropriate, after the Respondent’s expert has testified, despite the inherent delay
that would result. Therefore, we find that the judge abused her discretion in requiring an
unwarranted discovery procedure in this case.
The Respondent’s request for special permission to appeal from the judge’s
order granting the petitions to revoke the Respondent’s August 2017 subpoenas duces
tecum is denied.2
Dated, Washington, D.C., January 16, 2018
MARVIN E. KAPLAN, CHAIRMAN
LAUREN McFERRAN, MEMBER
WILLIAM J. EMANUEL, MEMBER

2 Chairman Kaplan and Member Emanuel view the request as controlled by the prior
Board decision denying the Respondent’s request to appeal the judge’s prior order on
essentially the same subpoena issue. See McDonald’s USA, LLC, 363 NLRB No. 144,
slip op at 1-2, 3 fn. 5, and 11-19 (2016). They express no opinion whether that request
was correctly denied.