USCA Case # Document # Filed: 05/30/2013 Page 1 of 106 PETITION FOR WRIT OF MANDAMUS OR PROHIBITION

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1 USCA Case # Document # Filed: 05/30/2013 Page 1 of 106 UNITED STATES COURt OF APPEALS FOA OtSTF\lCT OF COLUMBIA CIACUtT [ : ~AY :a 0 ~013 ] MAY s ft 201~ IN RE CSC HOLDINGS, LLC, AND CABLEVISION SYSTEMS NEW YORK CITY CORP., PETITIONERS CaseNo l! J PETITION FOR WRIT OF MANDAMUS OR PROHIBITION Doreen S. Davis JONES DAY 222 East 41st Street NewYork,N.Y (212) Jerome B. Kauff KAUFF, MCGUIRE & MARGOLIS LLP 950 Third Avenue 14th Floor New York, N.Y (212) Matthew D. McGill Counsel of Record Eugene Scalia GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C (202) MMcGill@gibsondunn.com Counsel for Petitioners CSC Holdings, LLC,and Cablevision Systems New York City Corp.

2 USCA Case # Document # Filed: 05/30/2013 Page 2 of 106 TABLE OF CONTENTS INTRODUCTION... 1 RELIEF SOUGHT... 3 ISSUE PRESENTED... 4 STATEMENT OFF ACTS... 4 REASONS WHY THE WRIT SHOULD ISSUE... 6 I. THE COMPANIES HAVE No OTHER REMEDY To PREVENT THE BOARD AND ITS AGENTS FROM CONDUCTING UNLAWFUL PROCEEDINGS... 7 II. THE COMPANIES HAVE A CLEAR AND INDISPUTABLE RIGHT NOT To FACE PROCEEDINGS THAT THE BOARD'S AGENTS LACK POWER TO CONDUCT A. Neither The Board Nor Its Agents May Exercise The Board's Powers Under The Act Because The Board Lacks A Quorum B. The Commencement And Continued Conduct Of Unfair-Labor-Practice Proceedings By The Board's Agents Is Clearly Unlawful C. The Board And Its Agents Lack Authority To Commence Federal-Court Litigation To Seek Injunctive Relief Under Section 1 OU) III. MANDAMUS Is APPROPRIATE To ENFORCE THIS COURT'S ORDERS, PROTECT ITS JURISDICTION, CONFINE THE AGENCY To THE LAWFUL EXERCISE OF ITS JURISDICTION, AND PREVENT IRREPARABLE HARM A. Mandamus Is Necessary To End The Board's Ongoing Defiance Of This Court's Rulings... 21

3 USCA Case # Document # Filed: 05/30/2013 Page 3 of 106 B. Mandamus Is Appropriate To Protect This Court's Jurisdiction C. Mandamus Would Avert Irreparable Harm To The Companies And The Public CONCLUSION CERTIFICATE OF PARTIES AND AMICI CURIAE CORPORATE DISCLOSURE STATEMENT ADDENDUM CERTIFICATE OF SERVICE 11

4 USCA Case # Document # Filed: 05/30/2013 Page 4 of 106 Cases TABLE OF AUTHORITIES Page(s) Ass'n ofnat'l Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979)... 9 Belize Soc. Dev. Ltd v. Gov 't of Belize, 668 F.3d 724 (D.C. Cir. 2012)... 7, 21 Beverly Health & Rehab. Servs., Inc. v. Feinstein, 103 F.3d 151 (D.C. Cir. 1997)... ' Bloomingdale's, Inc., 359 NLRB No. 113, 2013 WL (2013)... 4, 9, 16, 24 * Cheney v. Dist. Ct. for Dist. of Columbia, 542 u.s. 367 (2004)... 7, 21, 22, 23 * City of Cleveland v. Fed Power Comm 'n, 561 F.2d 344 (D.C. Cir. 1977)... 22, 23 Conkright v. Frommer!, 129 S. Ct (2009) (Ginsburg, J., in chambers) Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) FTC v. Dean Foods Co., 384 U.S. 597 (1966) In re City of New York, 607 F.3d 923 (2d Cir. 2010) In re Sealed Case, 151 F.3d 1059 (D.C. Cir. 1998)... 2 * Authorities upon which we chiefly rely are marked with asterisks. 111

5 USCA Case # Document # Filed: 05/30/2013 Page 5 of 106 *Iowa Utils. Bd. v. FCC, 135 F.3d 535 (8th Cir. 1998)... 22, 23, 27 *Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009)... 4, 10, 11, 12, 14, 15, 18, 20, 23 MCI Telecomms. Corp. v. FCC, 580 F.2d 590 (D.C. Cir. 1978)... 22, 30 Mills v. Dist. of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) Myers v. Bethlehem Shipbldg. Corp., 303 U.S. 41 (1938) Nara v. Frank, 494 F.3d 1132 (3d Cir. 2007) *New Process Steel, LP v. NLRB, 130 S. Ct (2010)... 4, 10, 11, 20 * NLRB v. New Vista Nursing & Rehab., _ F.3d _, 2013 WL (3d Cir. May 16, 2013)... 1, 12, 13, 14, 16, 20 *Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013)... 1, 4, 9, 10, 11, 12, 13, 14, 15, 16, 18,20,21,23,28 Philip Morris USA Inc. v. Scott, 131 S. Ct. 1 (2010) (Scalia, J., in chambers) Roche v. Evaporated Milk Ass 'n, 319 u.s. 21 (1943) * Telecomms. Res. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984)... 26, 27 United States v. Allocco, i '! 305 F.2d 704 (2d Cir. 1962) J United States v. Mendoza, 464 U.S. 154 (1984) IV

6 USCA Case # Document # Filed: 05/30/2013 Page 6 of 106 United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) Wash. Metro. Area Transit Comm 'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) Will v. United States, 389 U.S. 90 (1967) *Yablonski v. United Mine Workers of Am., 454 F.2d 1036 (D.C. Cir. 1971)... 22, 23 Constitutional Provisions U.S. Const. art. I, 5, cl U.S. Const. art. II, 2, cl U.S. Const. art. II, 2, cl Statutes 28 U.S.C U.S.C U.S.C , 11,17 29 U.S.C , 15 * 29 U.S.C , 4, 7, 8, 10, 15, 16, 17, 19, 20, 24, 26 Regulations And Rules * 29 C.F.R , 16, C.F.R C.F.R C.F.R v

7 USCA Case # Document # Filed: 05/30/2013 Page 7 of C.P.R C.P.R C.P.R C.P.R C.P.R C.P.R C.P.R C.P.R * 29 C.P.R Fed. R. App. P Sup. Ct. R Other Authorities 112th Cong., Congressional Directory (2011) Cong. Rec. S8783 (Dec. 17, 2011) Cong. Rec. S1 (Jan. 3, 2012) Cong. Rec. S3 (Jan. 6, 2012) Fed. Reg (Apr. 6, 1955) Fed. Reg. 65,998 (Dec. 21, 2001) Fed. Reg. 70,628 (Nov. 25, 2002) Fed. Reg. 69,768 (Nov. 9, 2011) Fed. Reg. 45,696 (2012) Vl

8 USCA Case # Document # Filed: 05/30/2013 Page 8 of 106 Costco Wholesale Corp., 358 NLRB No. 106 (Sept.7, 2012) Ctr. for Soc. Change, Inc., 358 NLRB No. 24, 2012 WL (2012)... 9 D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2012) Executive Power-Recess Appointments, 33 Op. Att'y Gen. 20 (1921) Marriot Int'l, Inc., 359 NLRB No.8 (Sept. 28, 2012) NLRB, Board Members Since 1935, 12, 13, 20 NLRB, Jim Paulsen named Regional Director in Brooklyn (Jan. 6, 2012), 16 NLRB, Karen Fembach named Regional Director in Manhattan (Jan. 6, 2012), /news-outreach/ announcements/karen-fembach-namedregional-director-manhattan S. Journal, 112th Cong., 2d Sess. (2012) Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011) Teamsters Local 7 5, 349 NLRB No. 77 (Jan. 26, 2007) WKYC-TV, Inc., 359 NLRB No. 30 (Dec. 12, 2012) Vll

9 USCA Case # Document # Filed: 05/30/2013 Page 9 of 106 INTRODUCTION The National Labor Relations Board has problems with authority. A panel of this Court held in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), that since at least January 3, 20 12, the Board has lacked a statutorily mandated quorum of three validly appointed Members. And under controlling precedent, absent a quorum, neither the Board nor its agents can wield any power under the National Labor Relations Act; actions they have purported to take are simply "void."!d. at 514. Two weeks ago, the Third Circuit echoed that conclusion, holding that the Board's lack of authority dates back even earlier. See NLRB v. New Vista Nursing & Rehab.,_ F.3d _, 2013 WL , at *11-30 (3d Cir. May 16, 2013). Yet by Board's lights, neither the absence of statutory authority enabling the Board to act nor the existence of judicial authority foreclosing further action by the Board poses any obstacle. It has brushed aside these challenges to its power in other cases. See In re Geary, No (D.C. Cir.); In re SFTC, LLC, (D.C. Cir.). And despite failing to seek, much less obtain, a stay in Noel Canning, the Board boldly proclaims that its authority to act is undiminished-arrogating a stay of the decision to itself without demonstrating that one is warranted. The Board's defiance of Congress and the federal courts is at war with the rule of law. Yet the casualties are not merely respect for the law and the courts who are its expositors, but also those whom the Board-absent authority-insists

10 USCA Case # Document # Filed: 05/30/2013 Page 10 of 106 on regulating, among them petitioners CSC Holdings, LLC ("CSC") and Cablevision Systems New York City Corp. ("Cablevision") (collectively, the "Companies"). Disregarding this Court's precedent, the Board has issued unfair-laborpractice complaints against the Companies and haled them to appear before the agency to defend themselves against the complaints' groundless allegations. If that were not enough, the Board also is now considering additional litigation to obtain even more intrusive injunctive relief. The burdens these unauthorized proceedings will foist on the Companies are immense, including the massive time and resources needed to prepare for the Board's proceedings. And the costs spill over to the employees conscripted as witnesses, to the judges that must adjudicate the ultra vires complaints, and ultimately to the taxpayers, who must underwrite this spectacle. Lacking any other recourse against the Board's overreaching, the Companies seek a writ of mandamus or prohibition from this Court to halt the Board's illegal actions.l Controlling precedent already establishes that the agency's continued actions are unlawful. Neither the Board nor its agents had authority to issue the complaints; indeed, the officers who issued them were not validly holding office at I The standards for issuing writs of mandamus and prohibition are "'virtually identical,"' In resealed Case, 151 F.3d 1059, 1063 n.4 (D.C. Cir. 1998) (citation omitted), and petitioners here are entitled to the relief they seek regardless of the label. For simplicity and clarity, this petition refers hereafter only to mandamus. 2

11 USCA Case # Document # Filed: 05/30/2013 Page 11 of 106 all. Moreover, both the Board and its agents, including ALJ s, are equally powerless to adjudicate the dispute. It would be senseless and unfair to force private parties to litigate the merits of a case that the agency cannot lawfully decide. Yet without a writ, the Companies have no means to avoid the unjust burdens that the Board's actions thrust upon them. The Board's suggestion that parties to its unlawful proceedings should litigate their challenge to the agency's authority to act before the Board itself and only then come to court is decidedly Kafkaesque: The Board has made clear that it will not even entertain such challenges; indeed, this Court has held that litigants need not even ask. And, of course, an employer could follow the Board's suggested path only by enduring the very harms for which it needs and seeks relief from this Court. Such a procedure has no place in a system of limited, accountable government. The Companies respectfully request that this Court issue a writ immediately. At minimum, the Companies ask that their case be heard together with those this Court has already determined warrant plenary consideration. RELIEF SOUGHT The Companies seek a writ of mandamus or prohibition to prevent the Board from prosecuting unfair-labor-practice complaints, and any related proceedings under 29 U.S.C. 160G), against CSC or Cablevision. 3

12 USCA Case # Document # Filed: 05/30/2013 Page 12 of 106 ISSUE PRESENTED Unless the National Labor Relations Board has a quorum of three lawfully appointed Members, see 29 U.S.C. 153(b), the Board cannot exercise any authority under the National Labor Relations Act, 29 U.S.C. 151 et seq., see New Process Steel, LP v. NLRB, 130 S. Ct. 2635, 2640, (2010), nor may agents of the Board exercise authority that the Board has previously delegated to them, see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, (D.C. Cir. 2009), cert. denied, 130 S. Ct (2010). This Court has held that the Board has lacked a quorum since at least January 3, See Noel Canning v. NLRB, 705 F.3d 490, (D.C. Cir. 2013), petition for cert. filed, No (Apr. 25, 2013). The Board does not believe this Court's rulings constrain its ability to act. See Bloomingdale's, Inc., 359 NLRB No. 113, 2013 WL , at * 1 (20 13 ). Should the Court issue a writ of mandamus or prohibition under the All Writs Act, 28 U.S.C. 1651, to prevent the Board or its agents from continuing to prosecute unfair-labor-practice complaints and conducting any related litigation under 29 U.S.C. 160G) against the Companies? STATEMENT OF FACTS esc provides telecommunications and media services to millions of customers in the New York metropolitan area and the Western United States. CSC is 4

13 USCA Case # Document # Filed: 05/30/2013 Page 13 of 106 headquartered in New York and employs over 17,000 employees. Cablevision is a CSC subsidiary charged with field operations in New York. In February 20 12, the Board certified the Communication Workers of America, AFL-CIO (the "Union") as the exclusive bargaining representative for 277 technician employees of Cablevision in Brooklyn, New York. Since then, Cablevision and the Union have met regularly to negotiate an initial collectivebargaining agreement with respect to wages, hours, and other terms and conditions of employment. Cablevision has provided the Union with information and made numerous offers to facilitate the finalizing of an agreement. The parties have not yet reached an agreement, but negotiations continue. Despite progress at the bargaining table, the Union recently filed several unfair-labor-practice charges against Cablevision or against Cablevision and CSC. In Case Nos. 02-CA and 02-CA (the "Bronx Case"), the Union alleged that both Cablevision and CSC violated Sections 8(a)(1) and (3) of the Act supposedly by discouraging non-covered employees in the Bronx and elsewhere from selecting the Union as their bargaining representative.2 Similarly, in Case Nos. 29-CA , 29-CA , and 29-CA (the "Brooklyn Case"), the Union alleged that Cablevision violated Sections 8(a)(1), (3) and (5) of the Na- 2 The complaint in the Bronx Case names CSC as well as Cablevision because it alleges that the Companies constitute a "single employer" under the Act. Add

14 USCA Case # Document # Filed: 05/30/2013 Page 14 of 106 tional Labor Relations Act by engaging in "surface bargaining" and other acts that interfered with covered employee's exercise of rights protected by the Act.3 On behalf of the Board, Karen F em bach, Regional Director for Region 2 of the Board, issued an unfair-labor-practice complaint in the Bronx Case on April 17, Add. 1. The Regional Director for Region 29, James Paulsen, did the same in the Brooklyn Case on April 29, 2013, Add. 13, and is now seeking authorization from the Board to petition for injunctive relief in that case under Section 1 OU) of the Act, Add A joint hearing for both cases has been scheduled before an Administrative Law Judge for July 8, Add 32.5 REASONS WHY THE WRIT SHOULD ISSUE This Court has authority under the All Writs Act, 28 U.S.C. 1651(a), to "issue all writs necessary or appropriate in aid of [its] jurisdiction and agreeable to the usages and principles of law." Id A writ of mandamus is warranted when (1) there is '"no other adequate means to attain the relief [the petitioner] desires"'; 3 The cases have since been consolidated. Add. 3 7 ("Consolidated Complaint"). 4 As discussed below, see infra at 15-16, the appointments of both Ms. Fembach and Mr. Paulsen were unlawful because at the time the Board purported to name them as Regional Directors pursuant to 29 U.S.C. 154(a), the Board lacked a quorum, and therefore could not lawfully make the appointments. Accordingly, Mr. Fembach and Mr. Paulsen do not lawfully hold office as Regional Directors. For simplicity and clarity, however, this brief refers to both as Regional Directors. 5 The Acting General Counsel also has declined a request by the Companies that he suspend prosecution of the Bronx and Brooklyn Cases, as well as any related existing or potential litigation under Section 1 OU) of the Act, until the Board regains a quorum of three lawfully appointed members. Add. 33, 51. 6

15 USCA Case # Document # Filed: 05/30/2013 Page 15 of 106 (2) the petitioner's "'right to issuance of the writ is clear and indisputable"'; and (3) "'the issuing court, in the exercise of its discretion, [is] satisfied that the writ is appropriate under the circumstances."' Belize Soc. Dev. Ltd. v. Gov 't of Belize, 668 F.3d 724, (D.C. Cir.) (quoting Cheney v. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, (2004)), cert. denied, 133 S. Ct. 274 (2012). Those criteria are readily satisfied here. The Companies have no alternative means to obtain the relief they request: being freed from the immense burdens of the Board's harmful and illegitimate proceedings. The Companies are clearly entitied to that relief, indeed, controlling precedent establishes that the Board lacks a statutorily mandated quorum, and therefore neither it nor any of its agents have authority to act. They are powerless to issue complaints or decide cases. Mandamus is plainly appropriate to halt the Board's defiance of this Court's clear commands, and its attempt to evade this Court's prospective jurisdiction over Board actions, see 29 U.S.C. 160(f). The Board's unlawful proceedings, if left unchecked, not only would irreparably injure the Companies, but also would seriously undermine the rule of law and cause severe and lasting harm to labor-management relations. I. THE COMPANIES HAVE No OTHER REMEDY To PREVENT THE BOARD AND ITS AGENTS FROM CONDUCTING UNLAWFUL PROCEEDINGS. There can be no serious dispute that the Companies have "'no other adequate means"' besides mandamus "'to attain the relief [they] desir[ e]. "' Belize Soc. Dev., 668 F.3d at 729 (citation omitted). The relief the Companies request, 7

16 USCA Case # Document # Filed: 05/30/2013 Page 16 of 106 and to which they are legally entitled, is the cessation of the illegitimate proceedings before the Board in the Bronx and Brooklyn Cases and any related litigation stemming from those actions. There is no other avenue open to the Companies to obtain that relief other than mandamus. As the Board itself has asserted, the Companies cannot petition for review directly from non-final actions by the Board or its agents-including the issuance of an unfair-labor-practice complaint, Resp 't' s Opp. to Pet. for Mandamus 9, In re SFTC LLC, No (D.C. Cir. Apr ) ("SFTC Opp."), or the Acting General Counsel's refusal to direct Board personnel under his supervision to suspend the proceedings, see supra at 6 n.5. The Board has argued in opposing other mandamus petitions that parties whom the Board's agents have forced to litigate similar unlawful proceedings do have an adequate remedy because they may litigate their cases before the Board, and then seek judicial review of a final Board order under Section 1 O(f), 29 U.S.C. 160(f). SFTC Opp But that supposed alternative deprives the Companies of the very relief they seek: It would require them to expend massive resources litigating before the agency-first taking part in a costly hearing before an ALJ, and then pursuing appellate review by the Board-which is precisely the harm that the Companies and other similarly situated litigants ought not suffer. Review after further agency proceedings cannot afford the Companies the desired relief. 8

17 USCA Case # Document # Filed: 05/30/2013 Page 17 of 106 Indeed, the Board's demand that litigants first challenge the agency's authority to act before the Board is disingenuous. The Board has steadfastly refused to entertain such challenges. Before this Court's ruling in Noel Canning, 705 F.3d 490, the Board explicitly "declined to determine the merits of claims attacking the validity of Presidential appointments to positions involved in the administration of the Act," including claims assailing the validity of the January 2012 appointments. Ctr. for Soc. Change, Inc., 358 NLRB No. 24, 2012 WL , at *1 (2012). And since Noel Canning, the Board has simply rejected this Court's ruling, asserting that the Board and its agents can continue acting because the January 2012 appointments' validity "remains in litigation," and other courts have taken different views on the limits on recess appointments. Bloomingdale's, Inc., 359 NLRB No. 113, 2013 WL , at *1 (2013). But see infra at Forcing litigants to press their claims before the agency-and requiring the use of government resources to hear and contest those claims-thus would be futile. What is more, under Noel Canning, parties may assail the Board's authority to act, including based on the January 2012 appointments' invalidity, whether or not they raised such claims before the Board. 705 F.3d at ; cf Ass 'n of Nat'! Advertisers, Inc. v. FTC, 627 F.2d 1151, (D.C. Cir. 1979) (exhaustion doctrine did not bar review of challenge to FTC Chairman's continued participation in proceedings). The Board's claim that review only after the agency litiga- 9

18 USCA Case # Document # Filed: 05/30/2013 Page 18 of 106 tion is complete offers an adequate remedy is thus plainly incorrect. Only relief from this Court stopping the litigation now can redress the Companies' grievance. 6 II. THE COMPANIES HAVE A CLEAR AND INDISPUTABLE RIGHT NOT To FACE PROCEEDINGS THAT THE BOARD'S AGENTS LACK POWER TO CONDUCT. The Companies are plainly entitled to mandamus relief to halt the Board's unlawful proceedings because, under the Act and controlling precedent, those proceedings are ultra vires. The Supreme Court's and this Court's case law establish that the Board itself, and any agent to whom the Board delegates its authority, cannot wield any power the Act confers on the Board unless the Board has a quorum of three validly appointed Members when the action is taken. See New Process Steel, 130 S. Ct. at ; Laurel Baye, 564 F.3d at And this Court has held that the Board has in fact lacked a quorum since at least January 3, See Noel Canning, 705 F.3d at Neither the Board nor its delegees, therefore, could lawfully issue the unfair-labor-practice complaints against the Companies in April 2013, and cannot now prosecute those complaints or initiate other litigation. The Companies' right to relief is therefore clear and indisputable. 6 The same is true of litigation that the Board or its agents might commence under Section 10(j) of the Act, 29 U.S.C. 160(j), seeking preliminary-injunctive relief against the Companies-which Board personnel in Region 29 are "currently seeking authorization" to pursue. Add. 29. Although the Companies could contest a suit seeking to impose a Section 10(j) injunction, 28 U.S.C. 1292(a)(1), they could do so only by engaging infurther burdensome litigation that the quorum-less agency has no authority to initiate or prosecute. 10

19 USCA Case # Document # Filed: 05/30/2013 Page 19 of 106 A. Neither The Board Nor Its Agents May Exercise The Board's Powers Under The Act Because The Board Lacks A Quorum. 1. Both Congress and the Supreme Court have made clear that the Board may exercise its powers under the Act only when it has a lawful quorum. Section3(b) of the Act, 29 U.S.C. 153(b), establishes that "three members of the Board shall, at all times, constitute a quorum." Id That provision, the Supreme Court held, means exactly what it says, and "requires three participating members 'at all times' for the Board to act." New Process Steel, 130 S. Ct. at 2640 (quoting 29 U.S.C. 153(b)). When the Board's membership falls below three lawfully appointed Members, the Board has no authority to act. See id at Any action it purports to take is "void ab initio." Noel Canning, 705 F.3d at 493. As this Court has further explained, the Board's loss of a quorum prevents not only the Board itself from exercising authority under the Act, but also preeludes anyone else from wielding that authority on the Board's behalf. See Laurel Baye, 564 F.3d at "[B]asic tenets of agency and corporation law" establish that "an agent's delegated authority terminates when the powers belonging to the entity that bestowed the authority are suspended" or "upon the resignation or termination of the delegating authority." Id at 473. It follows that no agent to whom the Board has delegated authority may continue exercising it when the Board loses its own ability to act. See id ("The delegee' s authority to act on behalf of the Board therefore ceased the moment the Board's membership dropped below its 11

20 USCA Case # Document # Filed: 05/30/2013 Page 20 of 106 quorum requirement of three members."). The Board, in short, "cannot by delegating its authority circumvent the statutory Board quorum requirement, because this requirement must always be satisfied."!d. 2. Under these controlling precedents, both the Board and its agents have been powerless to act at all times relevant to the unfair-labor-practice actions at issue. Indeed, as this Court recently held, the Board has lacked a quorum of three validly appointed Members since at least January 3, 2012, long before the events at issue began. See Noel Canning, 705 F.3d at Until then, the Board purportedly had three Members: Chairman Mark G. Pearce, and Members Brian Hayes, whose term expired in December 2012, and Craig Becker.!d. at Even assuming that Becker's appointment was valid, 8 that putative appointment expired, and the Board lost its quorum, when the Senate's Session ended on J anuary 3. See 705 F.3d at On January 4, the President attempted to restore the Board's quorum by naming three new Members: Sharon Block, Terence F. Flynn, and Richard F. 7 See NLRB, Board Members Since 1935, (all Internet materials last visited May 29, 2013). 8 Unlike Pearce and Hayes, who were confirmed by the Senate, Becker was sitting pursuant to a "recess" appointment purportedly made in March See New Vista, 2013 WL , at *6, *11. As the Third Circuit correctly held, Becker's recess appointment was not valid.!d. at *30. 12

21 USCA Case # Document # Filed: 05/30/2013 Page 21 of 106 Griffin. See Noel Canning, 705 F.3d at But as this Court held in Noel Canning, each of those appointments was invalid. Id at Article II of the Constitution permits the President to appoint principal officers (which includes Board Members) only with the Senate's consent, see U.S. Const. art. II, 2, cl. 2, subject to just one exception: The Recess Appointments Clause, id art. II, 2, cl. 3, allows him "to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."!d. As Noel Canning explained, that Clause permits appointments only during "intersession" recesses-i.e., sine die adjournments between numbered Senate "Sessions"-and only to vacancies that first arise during the recess in which the appointment is made. 705 F.3d at On January 4, 2012, however, the Senate was not in the midst of an intersession recess, but an intrasession adjournment. See Noel Canning, 705 F.3d at 506. In any event, each of the vacancies Block, Flynn, and Griffin filled did not arise during that break. Id at Because none was confirmed by the Senate, they could not and cannot lawfully hold office. Since January 3, 2012, therefore, the Board has "had no quorum." Id at 9 Flynn's appointment expired in July Board Members Since 1935, supra. IO The Third Circuit agreed that recess appointments are permissible only during intersession recesses. See New Vista, 2013 WL , at * As Noel Canning noted, other circuits have interpreted the Clause differently, but this Court specifically rejected their analyses and holdings. See 705 F.3d at ,

22 USCA Case # Document # Filed: 05/30/2013 Page 22 of Any actions by the Board (or its agents, see Laurel Baye, 564 F.3d at ) thus are "void." Noel Canning, 705 F.3d at B. The Commencement And Continued Conduct Of Unfair-Labor Practice Proceedings By The Board's Agents Is Clearly Unlawful. Because both the Board and its agents have been unable to exercise the- Board's statutory authority since January 3, 2012, its issuance of the unfair-laborpractice complaints giving rise to the Bronx and Brooklyn Cases and its continued prosecution of those actions are plainly unlawful. Indeed, neither the Board nor any of its agents, including ALJ s, have authority to oversee the litigation, or to bring Section 1 OG) litigation seeking an injunction. I I! 11 Moreover, the Block, Flynn, and Griffin appointments were independently unlawful because on January 4, 2012, the Senate was not in "Recess" even by the Executive's own longstanding definition. Since the Executive first claimed power to make intrasession recess appointments of any kind, it has maintained that the Senate cannot be deemed in "Recess" unless it breaks for more than three days (i.e., long enough to require consent of the House of Representatives, U.S. Const. art. I, 5, cl. 4). See Pet. for Cert. 21, NLRB v. Noel Canning, No (U.S. Apr. 25, 2013); Respondent's Letter Brief 3, New Process Steel, 130 S. Ct. 2635; Executive Power-Recess Appointments, 33 Op. Att'y Gen. 20, (1921). The Senate, however, held sessions on both January 3 and 6, S. Journal, 112th Cong., 2d Sess. 1-2 (2012); 158 Cong. Rec. S1 (Jan. 3, 2012); 158 Cong. Rec. S3 (Jan. 6, 2012). And, as the Third Circuit correctly determined, see New Vista, 2013 WL , at *19-20, those sessions cannot be discounted merely because the Senate described them as "pro forma... with no business conducted," 157 Cong. Rec. S8783 (Dec. 17, 2011). The Senate's determination that it was in session is dispositive, and in any case it was unquestionably "available" to act on appointments or other matters at those sessions, just as it had during identical "pro forma" sessions before January 4. New Vista, 2013 WL , at *12, *19. 14

23 USCA Case # Document # Filed: 05/30/2013 Page 23 of The Bronx and Brooklyn complaints were unlawful exercises of Board authority. The Act provides that "the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue" complaints alleging "unfair labor practice[s]." 29 U.S.C. 160(b). The Board, by regulation, has designated its "regional director[ s ]" as the agents responsible to issue complaints "in the name of the Board."12 When the Regional Directors for Regions 2 and 29 issued the complaints, they purported to exercise authority belonging to the Board, which it had delegated to them. But because the Board lacked a quorum in April 2013, when each complaint was issued, see Add. 1, 13, the Regional Directors could not wield that authority on the Board's behalf. See Laurel Baye, 564 F.3d at The complaints are therefore "void," Noel Canning, 705 F.3d at 514, and the proceedings that they instituted are unlawful. The Regional Directors' issuance of the complaints and their continued prosecution of the administrative proceedings are independently unlawful, moreover, because the Regional Directors themselves were invalidly appointed. Both the Act and longstanding Board policy establish that appointment of Regional Directors requires Board approval. See 29 U.S.C. 154(a); 20 Fed. Reg. 2175, C.F.R ("[a ]fter a charge has been filed, if it appears to the regional director that formal proceedings in respect thereto should be instituted, he shall issue and cause to be served on all other parties a formal complaint in the name of the Board"). 15

24 USCA Case # Document # Filed: 05/30/2013 Page 24 of 106 (Apr. 6, 1955), as amended, see, e.g., 77 Fed. Reg. 45,696 (2012). The Board announced its appointments of Ms. Fembach and Mr. Paulsen on January 6, But the Board had already ceased to have a quorum at least three days earlier, see Noel Canning, 705 F.3d at ; in fact, the Board had lacked a quorum since August 2011, see New Vista, 2013 WL , at * Both the Fembach and Paulsen appointments thus were "void ab initio." Noel Canning, 705 F.3d at 493. Because neither one legally held office, neither one could wield authority that the Board's regulations (29 C.P.R ) confer exclusively on as a Regional Director. 2. The Board has countered, in both its own rulings and other litigation, that its lack of a quorum does not bar the issuance of complaints because Section 3(d) of the Act gives the General Counsel "final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under [29 U.S.C. 160], and in respect of the prosecution of such complaints before the Board." 29 U.S.C. 153(d); see Bloomingdale's, 2013 WL , at *1; SFTC Opp That assertion is both incorrect and irrelevant. 13 See NLRB, Karen Fembach named Regional Director in Manhattan (Jan. 6, 20 12), / NLRB, Jim Paulsen named Regional Director in Brooklyn (Jan. 6, 2012), 16

25 USCA Case # Document # Filed: 05/30/2013 Page 25 of 106 a. The Act explicitly confers authority to issue complaints only on "the Board," and permits the Board to delegate that task to others as it chooses, 29 U.S.C. 160(b) (emphasis added), which the Board has done by assigning the task to Regional Directors, 29 C.F.R Section 3(d) itselfmakes clear, moreover, that whatever authority the General Counsel wields with respect to the prosecution of complaints, he exercises "on behalf of the Board." 29 U.S.C. 153(d) (emphasis added). The General Counsel thus does not issue complaints in his own name, but is acting for the Board, exercising a portion of the authority that Congress conferred explicitly on the Board, see id. 160(b ), but merely allocated within the Board to the General Counsel.l4 b. Even if the General Counsel did have some freestanding authority apart from the Board when it has lost a quorum, however, that authority would have no bearing here. To begin with, the Acting General Counsel himself did not issue the complaints in the Bronx and Brooklyn Cases. Each was issued instead by aregional Director, explicitly invoking the authority delegated exclusively to them under 29 C.F.R Add. 1, 7, 13, The Board's regulations confirm this: They permit "appeal[s] to the [G]eneral [C]ounsel" from decisions by Regional Directors-the officers to whom the Board has expressly delegated authority to issue complaints, 29 C.F.R not to issue unfair-labor-practice complaints in particular cases. See id

26 USCA Case # Document # Filed: 05/30/2013 Page 26 of 106 c. In any event, whoever issued the complaints, the litigation cannot proceed because neither the Board nor any agent can adjudicate it. The Board itself cannot hear and decide the case, either in the first instance or on review from an ALJ' s recommendation. See Noel Canning, 705 F.3d at 493, 514. Any final ruling it issues would be "void ab initio."!d. at 493. The Board is equally powerless to render interlocutory rulings during the course of the litigation, as its own regulations contemplate. See 29 C.F.R The Board thus is incapable of performing its fundamental supervisory function in the proceedings it itself has commenced. Just as importantly, no Board agent-including an ALJ-may conduct a hearing or oversee litigation on the Board's behalf. An ALJ is "the agent of the Board," 29 C.P.R , and wields authority to hold hearings, subpoena witnesses, and perform other tasks only because the Board has delegated to him the power to do so.15 But, as this Court has held, if the Board itself cannot convene hearings or compel parties or witnesses to appear, neither can its "agent" do so on its behalf. See Laurel Baye, 564 F.3d at It would be a truly bizarre system of civil enforcement that permitted an officer to bring complaints and initiate proceedings notwithstanding the absence of any body to adjudicate such complaints. The Board also has asserted in other cases that Congress intended to preclude all judicial review of the General Counsel's decisions to issue complaints or 15 See, e.g., 29 C.F.R ,.23,.25,.29,.30,.31,.33,.34,

27 USCA Case # Document # Filed: 05/30/2013 Page 27 of 106 not. SFTC Opp & n.ll. But the case law the Board has invoked is concerned with interference with the agency's "prosecutorial discretion"-i.e., the "weighing of all [the] considerations" such as "culpability, evidence, prosecutorial resources, and the public interest" that "facto[r] into the issuance of a complaint." Beverly Health & Rehab. Servs., Inc. v. Feinstein, 103 F.3d 151, 153 (D.C. Cir. 1997). At issue here is not the Board's or any other official's exercise of discretion, but the agency's raw power to issue a complaint. Surely if the Board began issuing complaints asserting not breaches of the National Labor Relations Act, but of the Clean Air Act or the Securities Act, the agency's exclusive discretion over the balancing of prosecutorial interests would not insulate its action from judicial review. A fortiori, such discretion cannot bar judicial relief to prevent prosecution of complaints when the agency cannot issue them at all. C. The Board And Its Agents Lack Authority To Commence Federal Court Litigation To Seek Injunctive Relief Under Section lo(j). For many of the same reasons that neither the Board nor its agents may initiate or continue unfair-labor-practice litigation before the agency itself, they are equally powerless to commence federal-court litigation seeking injunctive relief under Section lou) of the Act, 29 U.S.C. 160U)-as the Board is considering doing in the Brooklyn Case, see supra at 6. Section 1 OU) confers power exclusively on the Board to file a petition in district court seeking "appropriate temporary relief or [a] restraining order" pending resolution of unfair-labor-practice proceedings 19

28 USCA Case # Document # Filed: 05/30/2013 Page 28 of 106 before the agency. 29 U.S.C. 160Q). But neither the Board nor any delegee acting for it may seek such relief while the Board lacks a quorum, see Laurel Baye, 564 F.3d at as it currently does, see Noel Canning, 705 F.3d at Moreover, the Board's alleged delegation of authority to the Acting General Counsel to seek Section IOU) relief, 76 Fed. Reg. 69,768 (Nov. 9, 2011), was itself unlawful. When that delegation was purportedly made in November 2011, the Board already lacked a quorum because one of the Board's then-members, Craig Becker, held office pursuant to an invalid recess appointment. See New Vista, 2013 WL , at * In any case, the November 2011 delegation was invalid because, by its terms, it would take effect only after the Board lost a quorurn and was powerless to act or assign its powers to someone else. Allowing such evasion of the quorum requirement would not merely "create a tail that... would continue to wag after the dog died," New Process Steel, 130 S. Ct. at 2645, but indeed a tail that does not even begin to wag until the dog has met its demise. ***** Under binding Supreme Court and Circuit precedent, the Board and its agents had no basis to commence, and have no authority now to continue, proceed- 16 The same was true of two earlier, similar delegations on which the Board has relied. See 67 Fed. Reg. 70,628 (Nov. 25, 2002); 66 Fed. Reg. 65,998 (Dec. 21, 2001); compare Board Members Since 1935, supra (showing dates of recess appointments of Members Walsh, Hurtgen, Bartlett, and Cowen), with Joint Comm. on Printing, 112th Cong., Congressional Directory (2011) (showing dates of Senate sessions). 20

29 USCA Case # Document # Filed: 05/30/2013 Page 29 of 106 ings against the Companies. Despite the Companies' request, the agency has refused to halt the proceedings. The Companies are clearly entitled to a writ directing the Board and all of its agents to suspend the unlawful litigation. Ill. MANDAMUS Is APPROPRIATE To ENFORCE THIS COURT'S ORDERS, PROTECT ITS JURISDICTION, CONFINE THE AGENCY To THE LAWFUL EXERCISE OF ITS JURISDICTION, AND PREVENT IRREPARABLE HARM. Notwithstanding the Companies' clear entitlement under this Court's rulings to be free of these unlawful proceedings, the Board has pressed on, defying this Court's holdings that its actions in the absence of a quorum are "void." Noel Canning, 705 F.3d at 514. Mandamus is manifestly '"appropriate under the circumstances"' (Belize Soc. Dev. Ltd., 668 F.3d at 730 (quoting Cheney, 542 U.S. at 381)) to end the Board's open disobedience of this Court's directives and its unabashed "usurpation of power." Will v. United States, 389 U.S. 90, 95 (1967). A writ also is appropriate to prevent the Board's efforts to evade this Court's jurisdiction and avert imminent, irreparable harm to the Companies and others whom the Board continues to assail with a club it lacks authority to wield. A. Mandamus Is Necessary To End The Board's Ongoing Defiance Of This Court's Rulings. 1. The mandamus relief the Companies seek falls squarely within the writ's "traditional use... in aid of appellate jurisdiction both at common law and in the federal courts" of "confin[ing]" an entity "to a lawful exercise of its prescribed jurisdiction." Roche v. Evaporated MilkAss'n, 319 U.S. 21,26 (1943). The array of 21

30 USCA Case # Document # Filed: 05/30/2013 Page 30 of 106 ultra vires actions the writ can remedy is wide-ranging, but at the core are "actions [that] would threaten the separation of powers." Cheney, 542 U.S. at 381. Indeed, "[a] federal court's power to utilize mandamus to enforce its prior mandate against an administrative agency is firmly established." Iowa Utils. Bd. v. FCC, 135 F.3d 535, 541 (8th Cir. 1998), vacated on other grounds, 525 U.S (1999). "A federal court of appeals can use mandamus to preclude an agency from taking steps to evade the effect of its mandate, even if those steps were not expressly contemplated by the prior decision."!d. at 542. That power enables a court to halt agency action that is "clearly inconsistent" even "with the basic themes of [a] decision,"17 or to "rectify any deviation" from "'either the letter or spirit of [the court's prior] mandate construed in the light of the opinion of the court deciding the case."'18 Having resolved an issue once, a court plainly may issue a writ "to prevent relitigation of issues already decided." Yablonski, 454 F.2d at The Board's unapologetic refusal to obey this Court's clear directives exemplifies the contumacy that the writ exists to police. As discussed above, this Court's controlling precedent leaves no ambiguity about the Board's lack of a quorum and the consequent inability of the Board or its agents to exercise any au- 17 MCI Telecomms. Corp. v. FCC, 580 F.2d 590, 597 (D.C. Cir.) (emphasis added), cert. denied, 439 U.S. 980 (1978) 18 City of Cleveland v. Fed. Power Comm 'n, 561 F.2d 344, 346 (D.C. Cir. 1977) (quoting Yablonski v. United Mine Workers of Am., 454 F.2d 1036, 1038 (D.C. Cir )) (emphasis added) 22

31 USCA Case # Document # Filed: 05/30/2013 Page 31 of 106 thority under the Act. See Noel Canning, 705 F.3d ; Laurel Baye, 564 F.3d at By issuing and prosecuting complaints in the absence of a quorum (and threatening additional, more burdensome litigation), the agency thus is acting "manifestly in the teeth of the definitive rulings" of this Court. Yablonski, 454 F.2d at That disobedience poses a severe "threa[t] [to] the separation of powers" that amply justifies mandamus. Cheney, 542 U.S. at 381. Indeed, the Board's action flouts not only this Court's authority and Congress's prescription of the quorum requirement, but also the Senate's constitutional role in appointments: Allowing invalidly appointed Board Members to wield federal authority "wholly defeat[ s] the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause." Noel Canning, 705 F.3d at 503. This Court undeniably has power to compel the Board's compliance with "the letter [and] spirit" of those rulings. Iowa Utils. Bd., 135 F.3d 542; City of Cleveland, 561 F.2d at The Board has countered in other cases that issuance of a writ to end its illegal activities is inappropriate because it is entitled to disregard Noel Canning until such time as the Supreme Court resolves the merits of the issue against the Board. Though it did not seek a stay of this Court's decision pending further appeal, the Board nevertheless claims the right to disregard it simply "[b]ecause the question of the validity of the President's recess appointments remains in litiga- 23

32 USCA Case # Document # Filed: 05/30/2013 Page 32 of 106 tion," and other courts (addressing other appointments) have arrived at different answers. SFTC Opp. 8-10, 20-21; cf Bloomingdale's, 2013 WL , at *1. It contends, moreover, that even though Congress established review as of right of Board rulings in this Court, 29 U.S.C. 160(±), the Board can continue acting because it can seek enforcement of its orders elsewhere, see id. 160( e). See SFTC Opp. 7, 19-21, 27. The Board's claim that its "disagree[ment]" with this Court's ruling itself authorizes the Board to refuse to comply with the ruling is antithetical to the rule of law. No decision of this Court or any other even remotely supports it. The Board invokes the principle that federal agencies are immune from nonmutual estoppel, see United States v. Mendoza, 464 U.S. 154 (1984), SFTC Opp. 21 & n.20, but that has no relevance. Mendoza merely recognized a limited exception to issue preclusion to ensure the "development of important questions of law" that otherwise would be hindered "by freezing the first final decision rendered on a particular legal issue." 464 U.S. at 160. That exception exists primarily for the Supreme Court's benefit, to enable "several courts of appeals to explore a difficult question before [the Court] grants certiorari."!d. This rationale has no application here. The premise of the agency's disregard of this Court's decisions is that a split already exists)9 Its reliance on other courts' recess-appointments rul- 19 See Bloomingdale's, 2013 WL , at *1; Pet. for Cert ,23-24,31, Noel Canning, No

33 USCA Case # Document # Filed: 05/30/2013 Page 33 of 106 ings-none of which involved the Board, or indeed any executive agency20_to evade a ruling from this Court to which it was a party is badly misplaced. 3. Indeed, by claiming an entitlement to ignore this Court's rulings until a higher court addresses them, the Board asserts an unprecedented authority to stay judicial decisions unilaterally. The Board did not even request, much less obtain, a stay of the Noel Canning ruling from either this Court, see Fed. R. App. P. 41(d)(2), or the Supreme Court, see Sup. Ct. R. 23. It has not even asserted, let alone demonstrated to the satisfaction of a federal court, that the stringent requirements of a stay pending disposition of a petition for a writ of certiorari-including a "likelihood" of "irreparable harm"2i-are satisfied. Instead it has arrogated to itself the power to decide when an Article III court's ruling shall take effect, seeking to shift onto private parties the burden of proving such harm. The Board's broad claim of power to delay the effect of judicial decisions with which it "disagree[ s ]" is only further reason why its overreaching should be repudiated. B. Mandamus Is Appropriate To Protect This Court's Jurisdiction. Mandamus also is appropriate to aid, and prevent evasion of, this Court's jurisdiction. A final Board decision in the underlying actions is directly reviewable 20 Evans v. Stephens, 387 F.3d 1220, 1222 (11th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1009 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, (2d Cir. 1962). 21 Conkright v. Frommert, 129 S. Ct. 1861, (2009) (Ginsburg, J., 1n chambers); see also, e.g., Nara v. Frank, 494 F.3d 1132, 1133 (3d Cir. 2007). 25

34 USCA Case # Document # Filed: 05/30/2013 Page 34 of 106 in this Court. See 29 U.S.C. 160(±). To be sure, the Court's direct review of Board rulings is limited to final orders. See id. A court, however, need not wait for a matter to become "final" and "within its appellate jurisdiction" to issue a writ of mandamus, but instead may act even though "'no appeal has been perfected'... to protect its prospective jurisdiction. "22 A court is not powerless when an agency seeks to forestall legally required action and deprive injured parties of an expeditious path to a reviewable "final disposition." TRAC, 750 F.2d at 72. A court likewise need not sit idly where, as here, an agency prosecutes unlawful proceedings that impose tremendous harms on private parties. The Court, of course, can later declare the agency's actions illegal. But waiting until then would preclude the Court from preventing the severe and unjustified consequences of the Board's actions on unwilling litigants, and the attendant abuse of the public fisc. And until the agency's ability to act is definitively adjudicated by an authority it is willing to recognize, the Companies will have no repose, at risk of facing future complaints without a resolution of the Board's authority to bring them. Until the Board regains a lawful quorum, neither the Companies nor any other party will realize even "the benefits of agency expertise," let alone secure the certainty to which they are entitled. TRAC, 750 F.2d at Telecomms. Res. & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 76 (D.C. Cir. 1984) (quoting FTC v. Dean Foods Co., 384 U.S. 597, (1966)) (emphasis added); see also In re City of New York, 607 F.3d 923, 939 (2d Cir. 2010). 26

35 USCA Case # Document # Filed: 05/30/2013 Page 35 of 106 The Board elsewhere has suggested that a writ is nevertheless inappropriate because review of final Board action or a Section 1 OU) injunction might lie in another circuit, and thus this Court might never have jurisdiction to protect.23 But the power to protect prospective jurisdiction is not diminished by the fact that another ; court may share in that jurisdiction. See, e.g., Iowa Utils. Bd., 135 F.3d at 542 (rejecting argument that mandamus relief was inappropriate becall:se review of agency action inconsistent with prior court order was available only in another court). As this Court has explained, moreover, its authority to issue writs in aid of its jurisdiction supports "an ultimate power of review" and "'extends to those cases which are within its appellate jurisdiction although no appeal has been perfected.'" TRA C, 750 F.2d at 76 (citation omitted). The Board's reasoning would eviscerate this authority, restricting the Court only to the "issuance of writs in aid of jurisdiction already acquired by appeal."!d. (emphasis added). THis is not the law.24 C. Mandamus Would Avert Irreparable Harm To The Companies And The Public. There is no question that the ultra vires actions of the Board and its agents will cause irreparable harm absent the issuance of a writ of mandamus. The only 23 See, e.g., Resp't's Opp. to Pet. for Mandamus 12-13, In re Geary, No (D.C. Cir. Mar ) ("Geary Opp."). 24 See, e.g., Teamsters Local 75, 349 NLRB No. 77, 84 (Jan. 26, 2007) (Schaumber, dissenting) (noting Court's issuance of writ of mandamus to Board); see also Iowa Utils. Bd., 135 F.3d at

36 USCA Case # Document # Filed: 05/30/2013 Page 36 of 106 question is whether the harms threatened by the Board's illegitimate activities are sufficiently grave and irreparable to warrant mandamus relief. They are. Indeed, the fact that the Board's continued action is premised on purported appointments that this Court has held unconstitutional, see Noel Canning, 705 F.3d at , by itself establishes irreparable harm, for "[i]t has long been established that the loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Mills v. Dist. of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (internal quotation marks omitted). Moreover, the Companies will be compelled to expend massive resources in litigation fighting action this Court already has declared "void ab initio." Noel Canning, 750 F.3d at 493. Once expended, those resources can never be recouped. Even a ruling by this Court holding that the Bronx and Brooklyn complaints were unlawfully issued could not recompense the Companies for the burdens of litigating.25 Worse, if the Bronx and Brooklyn Cases are deemed nullities, the Companies may be forced to incur these costs a second time if the Board seeks to restart the litigation and conduct a second trial once it regains a quorum. 25 See Wash. Metro. Area Transit Comm 'n v. Holiday Tours, Inc., 559 F.2d 841, 843 n.2 (D.C. Cir. 1977) (economic harm can be irreparable injury if no "'adequate compensatory or other corrective relief will be available at a later date"' (citation omitted)); see also Philip Morris USA Inc. v. Scott,' 131 S. Ct. 1, 4 (2010) (Scalia, J., in chambers) ("[i]f expenditures cannot be recouped, the resulting loss may be irreparable"). 28

37 USCA Case # Document # Filed: 05/30/2013 Page 37 of 106 To be sure, in ordinary cases the cost of litigation necessary to determine the merits of claims before the Board does not constitute irreparable harm. See Myers v. Bethlehem Shipbldg. Corp., 303 U.S. 41, 51 (1938). For while claims may well prove "groundless" on their merits, "no way has been discovered of relieving a defendant from the necessity of a trial to establish the fact."!d. at But this case is anything but ordinary, and the Companies are not requesting the writ here simply because the Bronx and Brooklyn complaints' lack merit (though that is true) or even because of a departure from the "regularity of [the Board's] proceedings."!d. at 49. The proceedings must stop because this Court has determined that the Board has no authority to prosecute them at all and the Board simply refuses to acknowledge that determination. There is nothing to litigate before the agency; there is no need for agency expertise or a factual record. Indeed, there is no need for any litigation: This Court has already answered the dispositive questions in Noel Canning and Laurel Baye. Forcing the Companies to litigate them again before the agency, which will not entertain them, before this Court can apply its controlling case law would needlessly injure the Companies. Nor are the harms confined to the Companies. The Board's action also causes real harm to the corporations, unions, and employees affected by the everincreasing body of rules and decisions issued by the Board acting absent the safeguards of the National Labor Relations Act and Constitution. These rules and de- 29

38 USCA Case # Document # Filed: 05/30/2013 Page 38 of 106 cisions-including hundreds issued after Noel Canning-are significant and, in some cases, overturn decades of established precedent.26 Their effect on labor relations and the economy is substantial. And their adverse effects cannot be easily repaired. Nor can the loss to the public that results from invalidly appointed officers depleting the federal coffers to litigate cases they have no authority to bring. The Court has ample power to stop the illegal actions of the Board and its agents and compel obedience to Noel Canning and Laurel Baye. See MCI Telecomms. Corp., 580 F.2d at 597. It is plainly appropriate to exercise that power here to prevent further evasion of this Court's precedents, protect its jurisdiction, and save the Companies and many others from needless but irreparable harm. CONCLUSION The petition for mandamus or prohibition should be granted without delay. If the Court does not immediately grant the writ, the Companies respectfully request that their case be heard together with In re Geary, No (D.C. Cir.), and In re SFTC, LLC, (D.C. Cir.). 26 See, e.g., WKYC-TV, Inc., 359 NLRB No. 30 (Dec. 12, 2012) (overturning fifty years of precedent regarding dues deductions after expiration of collective bargaining agreement); Marriot Int'l, Inc., 359 NLRB No. 8 (Sept. 28, 2012) (overturning longstanding precedent governing off-duty-access policies); see also Costco Wholesale Corp., 358 NLRB No. 106 (Sept.7, 2012); Banner Health System, 358 NLRB No. 93 (July 30, 2012); D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2012); Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011). 30

39 USCA Case # Document # Filed: 05/30/2013 Page 39 of 106 Dated: May 30, 2013 Doreen S. Davis JONES DAY 222 East 41st Street New York, N.Y (212) Jerome B. Kauff KAUFF, MCGUIRE & MARGOLIS LLP 950 Third A venue 14th Floor New York, N.Y (212) Respectfully submitte:, O /) 1 11-wd~~lf Matthew D. McGill Counsel of Record Eugene Scalia GIBSON, DUNN & CRUTCHERLLP 1050 Connecticut Avenue, N.W. Washington, D.C (202) MMcGill@gibsondunn.com Counsel for Petitioners CSC Holdings, LLC and Cablevision Systems New York City Corp. 31

40 USCA Case # Document # Filed: 05/30/2013 Page 40 of 106 CERTIFICATE OF PARTIES AND AMICI CURIAE Pursuant to Circuit Rules 21(d) and 28(a)(l)(A), petitioners CSC Holdings, LLC and Cablevision Systems New York City Corp. respectfully submit the following certificate of parties and amici curiae: The parties to this petition for writ of mandamus or prohibition are petitioners CSC Holdings, LLC and Cablevision Systems New York City Corp.; the National Labor Relations Board; and Communications Workers of America, AFL- CIO, which is the charging party in both actions before the National Labor Relations Board. There currently are no intervenors or amici. May 30,2013 ~~/ldl Matthew D. McGill Counsel for Petitioners CSC Holdings, LLC and Cablevision Systems New York City Corp.

41 USCA Case # Document # Filed: 05/30/2013 Page 41 of 106 CORPORATE DISCLOSURE STATEMENT Cablevision Systems New York City Corporation is a direct subsidiary of CSC Holdings, LLC, which is a direct subsidiary of Cablevision Systems Corporation. Cablevision Systems Corporation is a publicly held corporation organized in Delaware with headquarters in Bethpage, New York. Cablevision Systems Corporation has no parent corporation. The following publicly held corporations own 10% or more of Cablevision Systems Corporation's common stock: (1) Clear- Bridge Investments LLC, and (2) T. Rowe Price Associates, Inc. I ----i

42 USCA Case # Document # Filed: 05/30/2013 Page 42 of J ADDENDUM I I \ l. I

43 USCA Case # Document # Filed: 05/30/2013 Page 43 of 106 ADDENDUM: TABLE OF CONTENTS Complaint, CSC Holdings, LLC & Cablevision Systems New York City Corp., Nos. 02-CA , 02-CA (Apr. 17, 2013)... Add. 1 Complaint, Cablevision Systems New York City Corp., Nos. 29-CA , 29-CA , 29-CA (Apr. 29, 2013)... Add. 13 Letter from D. Gribben, Counsel for Acting General Counsel, to Hon. J. Biblowitz, 1 (May 14, 2013)... Add. 29 Scheduling Order, CSC Holdings, LLC & Cablevision Systems New York City Corp., Nos. 02-CA , 02-CA ; Cablevision Systems New York City Corp., Nos. 29-CA , 29-CA , Add. 32 Letter from E. Scalia et al. to L. Solomon (May 21, 2013)... Add. 33 Order Further Consolidating Cases, CSC Holdings, LLC & Cablevision Systems New York City Corp., Nos. 02-CA , 02-CA ; Cablevision Systems New York City Corp., Nos. 29-CA , 29-CA , (May 24, 2013)... Add. 37 Letter from L. Solomon to E. Scalia (May 28, 2013)... Add. 51 Statutes and Regulations... Add. 54 U.S. Const. art. II, 2, cl Add. 54 U.S. Const. art. II, 2, cl Add U.S.C. 1651(a)... Add U.S.C. 153(b), (d)... Add U.S.C. I 54( a)... Add U.S.C. 160(b), (e), (f), U)... Add. 56 (Add. i]

44 USCA Case # Document # Filed: 05/30/2013 Page 44 of C.F.R Add C.F.R Add C.F.R Add. 59 [Add. ii]

45 USCA Case # Document # Filed: 05/30/2013 Page 45 of 106 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 2 CSC HOLDINGS, LLC and CABLEVISION SYSTEMS NEW YORK CITY CORP., as a single employer Respondent and Case Nos. 02-CA CA COMMUNICATION WORKERS OF AMERICA, AFL-CIO Charging Party ORDER CONSOLIDATING CASES, CONSOLIDATED COMPLAINT AND NOTICE OF HEARING Pursuant to Section of the ~ules and Regulations of the National Labor Relations Board (the Board) and to avoid unnecessary costs or delay, IT IS ORDERED THAT Cases 02-CA and Case 02-CA , which are based on charges filed by Communication Workers of America, AFL-CIO, herein called the Union, against CSC Holdings, LLC and Cablevision Systems New York City Corp., as a single employer, herein called Respondent, are consolidated. This Order Consolidating Cases, Consolidated Complaint and Notice of Hearing, which is based on these charges, is issued pursuant to Section 10(b) of the National Labor Relations Act, 29 U.S.C. 151 et seq. (the Act) and Section of the Board's Rules and Regulations, and alleges Respondent has violated the Act as described below: 1. (a) The charge in Case No. 02-CA was filed by the Union on July 23, 2012, and a copy was served by regular mail on Respondent on July 24, (b) The charge in Case No. 02-CA was filed by the Union on October 5, 2012, and a copy was served by regular mail on Respondent on October 10, [Add. 1]

46 USCA Case # Document # Filed: 05/30/2013 Page 46 of 106 (c) An amended charge in Case No. 02-CA was filed by the Union on November 16, 2012, and a copy was served by regular mall on Respondent on November 19, (d) A second amended charge in this matter was filed by the Union on Novemb.er 29,. 2012, and a copy was served by regular mail on Respondent on December 4, (a) At material' times CSC Holdings LLC, herein individually called CSC Holdings, has been a domestic corporation with an office and headquarters located at 1111 Stewart Avenue, Bethpage, New York, engaged in various business enterprises, including the provision of cable television and communications services in various parts of the United States. (b) At material times Cablevision Systems New York City Corp., herein called Cablevision New York City, has been a domestic corporation with an office and place of business at 500 Brush Avenue, Bronx New York, herein called the Bronx facility, engaged in providing broadband cable communication services to residential and commercial customers in the Bronx and other locations in New York, New York. {c) At all material times, CSC Holdings and Cablevision Systems New York City Corp have been affiliated business enterprises with common officers, ownership, directors, management, and supervision; have (formulated and) administered a common labor policy; have shared common premises and facilities; have provided services for and made sales to each i,. I } other; have interchanged personnel with each other; have interrelated operations with common management and have held themselves out to the public as a single-integrated business enterprise. (d) Based on its operations described above in subparagraph (c), CSC 2 [Add. 2]

47 USCA Case # Document # Filed: 05/30/2013 Page 47 of 106 Holdings and Cablevision New York City constitute a single-integrated business enterprise and a single employer within the meaning of the Act. (e) Annually, in course and conduct of their business operations esc Holdings and Cablevision New York City separately and collectively derive revenues in excess of $500,000. (f) Annually, in course and conduct of their business operations esc Holdings and Cablevision New York City separately and collectively purchase and receive at their facilities in New York State goods and services valued in excess of $5,000 directly from suppliers located outside the State of New York. 3. At material times, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 4. At material times the Union has been a labor organization within the meaning of Section 2(5) of the Act. 5. At material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act): James l. Dolan Chief Executive Officer Barry Monopoli Vice President Fi~ld Operations Richard House Construction Manager John Lynn Construction Manager Andre Diaz Fiber Department Supervisor Ewan Isaacs Plant Maintenance Supervisor Randy Reed Construction Supervisor 3 [Add. 3]

48 USCA Case # Document # Filed: 05/30/2013 Page 48 of 106 Winston Mcintosh Construction Supervisor 6. In or about April, 2012, the precise date being unknown to General Counsel, but within the knowledge of Respondent, the Employer, by Dolan, at a.meeting of employees at the Bronx facility: a. Promised its employees improved wages and benefits; b. Pro~ised its employees an improved system. for. registering their complaints~ witbout fear of retaliation; c. By soliciting employee complaints and grievances, promised its employees increased benefits and improved terms and conditions of employment. d. Respondent engaged in the conduct described above in subparagraphs a through c in order to discourage employees from selecting the Union as their collective bargaining representative. 7. (a) On or about April15, 2012, the Employer, by various methods, including a power point presentation shown to employees at the Bronx facility and other locations not presently known to General Counsel, but within the knowledge of Respondent, announced the implementation of wage and benefit improvements. (b) In or about May 2012, the exact date not presently known to General Counsel, but within the knowledge of Respondent, Respondent implemented the first phase of its wage and benefit improvements. (c) Respondent engaged in ~he conduct described above in subparagraphs (a) and (b) because certain employees of Respondent joined or supported the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. 4 [Add. 4]

49 USCA Case # Document # Filed: 05/30/2013 Page 49 of On or about June 26, 2012, Respondent by Dolan, at a meeting of employees at the Bronx facility impliedly threatened employees with the loss of opportunities for training, and advancement and loss of work if they selected the Union as their collective-bargaining representative. 9. By the conduct described above in paragraphs 6 through 8, Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 10. By the conduct described above in paragraph 7, Respondent has been discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(1) and (3) of the Act. 11. The unfair labor practices of Respondent described above affect commerce within the meaning of Section 2(6) and (7) of the Act. WHEREFORE as part of the remedy for the unfair labor practices alleged above in paragraphs 6 through 8, the General Counsel seeks an Order requiring that the Notice be read to employees during working time by James l. Dolan. Wherefore as part of the remedy for the unfair labor practices alleged above in paragraphs 6 through 8 General Counsel seeks an Order requiring that the notice: be read at Respondent's facilities in the Bronx, New York, Shelton, Connecticut, White Plains, New York, Newark, New Jersey and at its facilities in Nassau and Suffolk Counties, New York. 5 [Add. 5]

50 USCA Case # Document # Filed: 05/30/2013 Page 50 of 106 ANSWER REQUIREMENT Respondent is notified that, pursuant to Sections and of the Board's Rules and Regulations, it must file an answer to the (consolidated) complaint. The answer must be received by this office on or before May 1, 2013, or postmarked on or before April 30, Respondent should file an original and four copies of the answer with this office and serve a copy of the answer on each of the other parties. An answer may_ also be filed electronically through the Agency's website. To file electronically, go to click on File Case Documents, enter the NLRB Case Number, and follow the detailed instructions. The responsibility for the receipt and usability of the answer rests exclusively upon the sender. Unless notification on the Agency's website informs users that the Agency's E-Fillng system is officially determined to be in technical failure because it is unable to receive documents for a continuous period of more than 2 hours after 12:00 noon (Eastern Time) on the due date for filing, a failure to timely file the answer will not be excused on the basis that the transmission could not be accomplished because the Agency's website was off-line or unavailable for some other reason. The Board's Rules and Regulations require that an answer be signed by counsel or non-attorney representative for represented parties or by the party if not represented. See Section If the answer being filed electronically is a pdf document containing the required signature, no paper copies of the answer need to he transmitted to the Regional Office. However, if the electronic version of an answer to a complaint is not a pdf file containing the required signature, then the E-filing rules require that such answer containing the required signature continue to be submitted to the Regional Office by traditional means within three (3) business days after the date of electronic filing. Service of the answer on each of the other parties must still be accomplished by means allowed under the 6 [Add. 6]

51 I USCA Case # Document # Filed: 05/30/2013 Page 51 of 106 Board's Rules and Regulations. The answer may not be filed by facsimile transmission. If no answer is filed, or if an answer is filed untimely, the Board may find, pursuant to a Motion for Default Judgment, that the allegations in the (consolidated) complaint are true. NOTICE OF HEARING PLEASE TAKE NOTICE THAT on May 29, 2013, at 9:30 a.m. at the Mary Walker Taylor Hearing Room on the 36th Floor of 26 Federal Plaza, New York, New York, and on consecutive days thereafter until concluded, a hearing will be conducted before an administrative law judge of the National labor Relations Board. At the hearing, Respondent and any o~her party to this proceeding have the right to appear and present testimony regarding the allegations in this (consolidated) complaint. The procedures to be followed at the hearing are described in the attached Form NLRB The procedure to request a postponement of the hearing is I I described in the attached Form NLRB Dated this 1 ih day of April At New York, New York ~~ Karen P. Fernbach, Regional Director National Labor Relations Board Region 2 26 Federal Plaza Room 3614 New York, NY [Add. 7]

52 USCA Case # Document # Filed: 05/30/2013 Page 52 of 106 FORM NLRB 4338 (6~90) UNITED STATES GOVERNMENT NATIONAL LABOR RELATIONS BOARD NOTICE Case 02-CA The issuance of the notice of formal hearing in this case does not mean that the matter cannot be disposed of by agreement of the parties. On the contrary, it is the policy of this office to encourage voluntary adjustments. The examiner or attorney assigned to the case will be pleased to receive and to act promptly upon your suggestions or comtnents to this end. An agreement between the parties, approved by the Regional Director, would serve to cancel the hearing. However, w1less otherwise specifically ordered, the hearing will be held at the date, hour, and place indicated. Postponements will not he granted unless good and sufficient grounds are shown and the following requirements are met: (1) The request must be in writing. An original and two copies must be filed with the Regional Director when appropriate under 29 CFR (a) or with the Division of Judges when appropriate under 29 CFR (b). (2) Grounds must be set forth in detail; (3) Alternative dates for any rescheduled hearing must be given; ( 4) The positions of all other parties must be ascertained in advance by the requesting party and set forth in the request; and (5) Copies must be simultaneously served on all other parties (listed below), and that fact must be noted on the request. Except under the most extreme conditions, no request for postponement will be granted during the three days immediately preceding the date of hearing. ERIC CHANG, Director of Human Resources CABLEVISION SYSTEMS OF NEW YORK CITY CORPORATION 500 BRUSH AVE BRONX, NY Peter Clark, ESQ. KAUFF MCGUIRE & MARGOLIS LLP 950 Third Avenue 14th Floor New York, NY [Add. 8]

53 USCA Case # Document # Filed: 05/30/2013 Page 53 of 106 TIMOTHY DUBNAU COMMUNICATION WORKERS OF AMERICA WEISSMAN & MINTZ LLC 9602-D MARTIN LUTHER KING JR. HIGHWAY LANHAM, MD DANIEL E. CLIFTON, ESQ. LEWIS, CLIFTON & NIKOLAIDIS, P.C. 3507THAVE STE 1800 NEW YORK, NY MARY K. O'MEL VENEY, GENERAL COUNSEL COMMUNICATIONS WORKERS OF. AMERICA, AFL-CIO, CLC 501 3RD ST., NW, SUITE.800 WASHINGTON, DC GABRIELLE SEMEL, District Counsel COMMUNICATION WORKERS OF AMERICA, DISTRICT 1- LEGAL DEPARTMENT 350 7TH AVE FL 18 NEW YORK, NY [Add. 9]

54 USCA Case # Document # Filed: 05/30/2013 Page 54 of 106 NOTICE The Complaint attached hereto alleges that the Respondent has violated certain sections of the National labor Relations Act and a fonnal hearing has been scheduled with respect thereto. By this notice I wish. to call the attention of all parties to the policy of this Agency favoring a settlement of oases notwithstanding that a Complaint has issued. It is the position of th~ Agency that an early settlement will be an advantage to all parties because it eliminates, among other things, the time and expense involved in formal litigation of a matter. In furtherance of this policy the Board agent with whom you have dealt or the attomey to whom the matter has been assigned for trial, will contact the representatives of the Respondent and the Charging Party within a matter of days for the purpose of engaging in intensive discussions to detennine whether or not a settlement can be achieved. All of the facilities of this office are available to the parties in furthering the.achievement of a satisfactory disposition of the matter which will be consistent with the purposes and policies of the National Labor Relations Act. g;:m.-f', 2~ Regional Director National labor Relations Board Region 2 [Add. 10]

55 USCA Case # Document # Filed: 05/30/2013 Page 55 of 106 Form NLRB-4668 (4-05) SUMMARY OF STANDARD PROCEDURES IN FORMAL HEARINGS HELD BEFORE THE NATIONAL LABOR RELATIONS BOARD IN UNFAIR LABOR PRACTICE PROCEEDINGS PURSUANT TO SECTION 10 OF THE NATIONAL LABOR RELATIONS ACT The hearing will be conducted by an administrative law judge of the National Labor Relations Board who will preside at the hearing as an independent, impartial finder of the facts and applicable law whose decision in due time will be served on the parties. The offices of the administrative law judges are located in Washington, DC; San Francisco, California; New York, N.Y.; and Atlanta, Georgia. At the date, hour, and place for which the hearing is Set, the administrative law judge, upon the joint request of the parties, will conduct a "prehearing" conference, prior to or shortly after the opening of the hearing, to ensure that the issues are sharp and clearcut; or the administrative law judge may independently conduct such a conference. The administrative law judge will preside at such conference, but may, if the occasion arises, permit the parties to engage in private discussions. The conference will not necessarily be recorded, but it may well be that the labors of the conference will be evinced in the ultimate record, for example, in the form of statements of position, stipulations, and concessions. Except under unusual circumstances, the administrative law judge conducting the prehearing conference will be the one who will conduct the hearing; and it is expected that the formal hearing will commence or be resumed immediately upon completion of the prehearing conference. No prejudice will result to any party unwilling to participate in or make stipulations or concessions during any prehearing conference. (This is not to be construed as preventing the parties from meeting earlier for similar purposes. To the contrary, the parties are encouraged to meet prior to the time set for hearing in an effort to narrow the issues.) Parties may be represented by an attorney or other representative and present evidence relevant to the issues. All parties appearing before this hearing who have or whose witnesses have handicaps falling within the provisions of Section 504 of the Rehabilitation Act of 1973, as amended, and 29 C.F.R , and Who in order to participate in this hearing need appropriate auxiliary aids, as defined in 29 C.F.R , should notify the Regional Director as soon as possible and request the necessary assistance. An official reporter will make the only official transcript of the proceedings, and all citations in briefs and arguments must refer to the official record. The Board will not certify any transcript other than the official transcript for use in any court litigation. Proposed corrections of the transcript should be submitted, either by way of stipulation or motion, to the administrative law judge for approval. All matter that is spoken in the hearing room while the hearing is in session will be recorded by the official reporter unless the administrative law judge specifically directs off-the-record discussion. In the event that any party wishes to make off-the-record statements, a request to go off the record should be directed to the administrative law judge and not to the official reporter. Statements of reasons in support of motions and objections should be specific and concise. The administrative law judge will allow an automatic exception to all adverse rulings and, upon appropriate order, an objection and exception will be permitted to stand to an entire line of questioning. All exhibits offered in evidence shall be in duplicate. Copies of exhibits should be supplied to the administrative law judge and other parties at the time the exhibits are offered in evidence. If a copy of any exhibit is not available at the time the original is received, it will be the responsibility of the party offering such exhibit to submit the copy to the administrative law j1:1dge before the close of hearing. In the event such copy is not submitted, and the filing has not been waived by the administrative law judge, any ruling receiving the exhibit may be rescinded and the exhibit rejected. Any party shall be entitled, on request, to a reasonable period of time at the close of the hearing for oral argument, which shall be included in the transcript of the hearing. In the absence of a request, the administrative law judge may ask for oral argument if, at the close of the hearing, it is believed that such argument would be beneficial to the understanding of the contentions of the parties and the factual issues involved. (OVER) [Add. 11]

56 USCA Case # Document # Filed: 05/30/2013 Page 56 of 106 Form NLRB.-46S8 (4-05) Contlnued In the discretion of the administrative law judge, any party may, on request made before the close of the hearing, file a brief or proposed fmdings and conclusions, or both, with the administrative law judge who will fix the time for such filing. Any such filing submitted shall be double-spaced on 8 1/2 by 11 inch paper. Attention of the patties is called to the following requirements biid down in Section of the Board's Rules and Regulations, with respect to the procedure to be followed before the proceeding is transferred to the Board: No request for an extension of time within which to submit briefs or proposed findings to the administrative law judge will be considered unless received by the Chief Administrative Law Judge in Washington, DC (or, in cases under the branch offices in San Francisco, California; New York, New York; and Atlanta, Georgia, the Associate Chief Administrative Law Judge) at least 3 days prior to the expiration oftime fixed. for the submission of such documents. Notice ofrequest for such extension oftime must be served simultaneously on ah other parties, and proof of such service furnished to the Chief AdministratiVe Law Judge or the Associate Chief Administrative Law Judge, as the case may be. A quicker response is assured if the moving party secures the positions of the other parties and includes such in the request. All briefs or proposed findings filed with the administrative law judge must be submitted in triplicate, and may be printed or otherwise legibly duplicated with service on the other parties. In due course the administrative law judge will prepare and file with the Board a decision in this proceeding, and will cause a copy thereof to be served on each of the patties. Upon filing of this decision, the Boat d will enter an order transferring this case to itself, and will serve copies of that order, setting forth the date of such transfer, on all parties. At that point, the administrative law judge's official connection with the case will cease. The procedure to be followed before the Board from that point forward, with respect to the filing of exceptions to the administrative law judge's decision, the submission of supporting briefs, requests for oral argument before the Board, and related matters, is set forth in the Board's Rules and Regulations, particularly in Section I and following sections. A summary of the more pertinent of these provisions will be served on the parties together with the order transferring the case to the Board. Adjustments or settlements consistent with the policies of the National Labor Relations Act reduce government expenditures and promote amity in labor relations. If adjustment appears possible, the administrative law judge may suggest discussions between the parties or, on request, will afford reasonable opportunity during the hearing for such discussions. [Add. 12]

57 USCA Case # Document # Filed: 05/30/2013 Page 57 of 106 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION29 CABLEVISION SYSTEMS NEW YORK CITY CORPORATION and COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO Case Nos. 29-CA CA CA ORDER CONSOLIDATING CASES, CONSOLIDATED COMPLAINT AND NOTICE OF HEARING Pursuant to Section of the Rules and Regulations of the National Labor Relations Board (the Board) and to avoid unnecessary costs or delay, IT IS ORDERED THAT Cases 29- CA , 29-CA , and 29-CA which are based on charges filed by COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO (Charging Party) against CABLEVISION SYSTEMS NEW YORK CITY CORPORATION (Respondent) are consolidated. This Order Consolidating Cases, Consolidated Complaint and Notice of Hearing, which is based on these charges, is issued pursuant to Section 1 O(b) of the National Labor Relations Act, 29 U.S.C. 151 et seq. (the Act) and Section ofthe Board's Rules and Regulations, and alleges Respondent has violated the Act as described below: 1(a). The charge in Case 29-CA was filed by the Charging Party on January 24, 2013, and a copy was served by regular mail on Respondent on January 25, (b). The first amended charge in Case 29-CA was filed by the Charging Party on January 28, 2013, and a copy was served by regular mail on Respondent on January 28, [Add. 13]

58 USCA Case # Document # Filed: 05/30/2013 Page 58 of 106 (c). The second amended charge in Case 29-CA was filed by the Charging Party on April26, 2013, and was served by regular mail on Respondent on April26, (d). The charge in Case 29-CA was filed by the Charging Party on January 31, 2013, and a copy was served by regular mail on Respondent on February 4, (e). The first amended charge in Case 29-CA was filed by the Charging Party on February 19, 2013, and a copy was served by regular mail on Respondent on February 21, (f). The second amended charge in Case 29-CA was filed by Charging Party on April25, 2013, and was served by regular mail on Respondent on April26, (g). The charge in Case 29-CA was filed by the Charging Party on March 12, 2013, and a copy was served by regular mail on Respondent on March 13, (a). At all material times, Respondent a domestic corporation with its corporate office located at 1111 Stewart Avenue, Bethpage, New York, and with facilities located in Brooklyn, New York, has been engaged in the business of providing broadband cable and communication services to residential and commercial customers in Brooklyn. (b). Annually, in the course and conduct of its business operation described above in paragraph 2(a), the Employer has derived gross revenues excess of $500,000, and has purchased goods, products and materials valued in excess of $5,000 directly from points located outside the State ofnew York. (c). At all material times, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 3. At all material times, the Charging Party has been a labor organization within the meaning of Section 2( 5) of the Act. 2 [Add. 14]

59 USCA Case # Document # Filed: 05/30/2013 Page 59 of The following employees of Respondent (the Unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time field service technicians, outside plant technicians, audit technicians, inside plant technicians, construction technicians, network fiber technicians, logistics associates, regional control center (RCC) representatives and coordinators employed by the Employer at its Brooklyn, New York facilities; excluding all other employees, including customer service employees, human resource department employees, professional employees, guards, and supervisors as defined in Section 2(11) of the Act. 5. On February 7, 2012, following the conduct of an election in Case No. 29-RC , the Board certified the Charging Party as the exclusive collective-bargaining representative ofthe Unit. 6. At all times since February 7, 2012, based on Section 9(a) of the Act, the Charging Party has been the exclusive collective-bargaining representative of the Unit. 7(a). At various times from about May 30, 2012, through March 4, 2013, Respondent and the Charging Party met for the purposes of negotiating an initial collective-bargaining agreement with respect to wages, hours, and other terms and conditions of employment. (b). During the period described above in paragraph 7(a), Respondent engaged in surface bargaining with no intent of reaching agreement by: (1) refusing to meet at reasonable times; (2) refusing to discuss economic issues until non-economic issues were resolved; (3) insisting on changing the scope of the certified bargaining unit; (4) rigidly adhering to proposals that are predictably unacceptable to the Charging Party; (5) refusing to discuss a union security clause and then raising philosophical objections to such clause; ( 6) submitting regressive proposals to the Charging Party; (7) withdrawing from a tentative agreement; (8) refusing to 3 [Add. 15]

60 USCA Case # Document # Filed: 05/30/2013 Page 60 of 106 discuss mandatory subjects of bargaining; and (9) by significantly delaying the provision of relevant wage information to the Charging Party. (c). By its overall conduct, including the conduct described above in paragraph 7(b), Respondent has failed and refused to bargain in good faith with the Union as the exclusive collective-bargaining representative of the Unit. 8(a). Since about August 23, 2012, the Charging Party has requested, in writing, that Respondent furnish it with the following information: Documents related to changes made during the period April 1, 2012, to the present, with respect to the wages and benefits, Career Progression Plan, and Salary Matrix of all non-brooklyn Cablevision employees, employed in the same or similar job classifications as the Brooklyn CW A bargaining unit employees. (b). The information requested by the Charging Party, as described above in paragraph 8(a) is necessary for, and relevant to, the Charging Party's performance of its duties as the exclusive collective-bargaining representative of the Unit. (c). From about September 5, 2012, to about March 6, 2013, Respondent unreasonably delayed in furnishing the Union with the information requested by it as described above in paragraphs 8(a) and (b). 9. At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act: Daryl Gaines Rick La V esque Area Operations Manager Vice President 4 [Add. 16]

61 USCA Case # Document # Filed: 05/30/2013 Page 61 of At all material times, Harry Hughes held the position of Respondent's Corporate Investigator for Respondent's Security Department and has been an agent of Respondent within the meaning of Section 2( 13) of the Act. 11. About January 24, 2013, Respondent, through Daryl Gaines, instructed employees not to engage in activities in support of the Charging Party. 12. About February 7, 2013, Respondent, by Harry Hughes, in front of the Madison Square Garden Arena in New York City, engaged in surveillance of employees engaged in union activities. 13. About the first week of February 2013, Respondent, by Rick LaVesque, in his office at Respondent's 96th Street facility, informed a Unit employee that it was futile for the employee to support the Charging Party because bargaining for a contract with Respondent was futile. 14(a). About January 30, 2013, certain employees of Respondent ceased work concertedly and engaged in a strike. (b). The strike described above in paragraph 13(a) was caused by Respondent's unfair labor practices described above in paragraphs 7(a) through (c). 15(a). About January 30, 2013, Respondent, by Rick LaVesque, informed the following employees engaged in the unfair labor practice strike described above in paragraphs 14(a) and (b), that they had been permanently replaced: Clarence Adams David Gifford La'kesia Johnson Courtney Graham Miles Watson Eric Ocasio Malik Coleman Andre Riggs Raymond Reid Borris H. Reid 5 [Add. 17]

62 USCA Case # Document # Filed: 05/30/2013 Page 62 of 106 Andre Bellato Jerome Thompson Trevor Mitchell Ray Meyers Marlon Gayle Richard Wilcher Steven Ashurst Shaun Morgan Stanley Galloway Brent Randein Corey Williams Raymond Williams (b). About January 30, 2013, Respondent directed the employees described above in paragraph 15(a) to, among other things, turn in their identification badges, keys, and radios, and had these employees escorted out of the facility by NYPD officers. (c). By the conduct described above in paragraphs 15(a) and (b), Respondent discharged the named employees on January 30, (d). On various dates beginning on February 6, 2013, and ending on March 20, 2013, Respondent reinstated the named employees to their former positions of employment without back pay. (e). Respondent engaged in the conduct described above in paragraphs 15(a) through (d) because the named employees of Respondent assisted the Charging Party and engaged in concerted activities, and to discourage employees from engaging in these activities. 16. By the conduct described above in paragraphs 7 and 8, Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collectivebargaining representative of its employees in violation of Section 8(a)(l) and (5) of the Act. 17. By the conduct described above in paragraphs 11 through 13, Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(l) of the Act 6 [Add. 18]

63 USCA Case # Document # Filed: 05/30/2013 Page 63 of By the conduct described above in paragraph 15, Respondent has been discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(l) and (3) of the Act. 19. The unfair labor practices of Respondent described above affect commerce within the meaning of Section 2(6) and (7) of the Act. As part of the remedy for the unfair labor practices alleged above, the Acting General Counsel seeks an Order requiring that the Notice be read to employees during working time by a high level official ofrespondent. As part of the remedy for the unfair labor practices alleged above in paragraphs 7 and 8, the General Counsel seeks an Order requiring Respondent to: (1) bargain on request within 15 days of a Board Order; (2) bargain on request for a minimum of 15 hours a week until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining; (3) prepare written bargaining progress reports every 15 days and submit them to the Regional Director and also serve the reports on the Charging Party to provide the Charging Party with an opportunity to reply; and ( 4) make whole employee negotiators for any earnings lost while attending bargaining sessions. As part of the remedy for Respondent's unfair labor practices alleged above in paragraphs 7 and 8, the Acting General Counsel seeks an Order requiring Respondent to bargain in good faith with the Charging Party, on request, for an additional period of 12 months as provided for by Mar-Jac Poultry, 136 NLRB 785 (1962), as the recognized bargaining representative in the appropriate unit. The General Counsel further seeks all other relief as may be just and proper to remedy the unfair labor practices alleged. 7 [Add. 19]

64 USCA Case # Document # Filed: 05/30/2013 Page 64 of 106 As part of the remedy for the unfair labor practices alleged above in paragraphs 15(a) through (e), the Acting General Counsel seeks an order requiring reimbursement of amounts equal to the difference in taxes owed upon receipt of a lump-sum payment and taxes that would have been owed had there been no discrimination. The Acting General Counsel further seeks that Respondent be required to submit the appropriate documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate periods. The Acting General Counsel further seeks all other relief as may be just and proper to remedy the unfair labor practices alleged. ANSWER REQUIREMENT Respondent is notified that, pursuant to Sections and ofthe Board's Rules and Regulations, it must file an answer to the Consolidated complaint. The answer must be received by this office on or before May 13, 2013, or postmarked on or before May 11, Respondent should file an original and four copies of the answer with this office and serve a copy of the answer on each of the other parties. An answer may also be filed electronically through the Agency's website. To file electronically, go to click on File Case Documents, enter the NLRB Case Number, and follow the detailed instructions. The responsibility for the receipt and usability of the answer rests exclusively upon the sender. Unless notification on the Agency's website informs users that the Agency's E-Filing system is officially determined to be in technical failure because it is unable to receive documents for a continuous period of more than 2 hours after 12:00 noon (Eastern Time) on the due date for filing, a failure to timely file the answer will not be excused on the basis that the transmission could not be accomplished because the Agency's 8 [Add. 20]

65 USCA Case # Document # Filed: 05/30/2013 Page 65 of 106 website was off-line or unavailable for some other reason. The Board's Rules and Regulations require that an answer be signed by counsel or non-attorney representative for represented parties or by the party if not represented. See Section If the answer being filed electronically is a pdf document containing the required signature, no paper copies of the answer need to be transmitted to the Regional Office. However, if the electronic version of an answer to a complaint is not a pdf file containing the required signature, then the E-filing rules require that such answer containing the required signature continue to be submitted to the Regional Office by traditional means within three (3) business days after the date of electronic filing. Service of the answer on each of the other parties must still be accomplished by means allowed under the Board's Rules and Regulations. The answer may not be filed by facsimile transmission. If no answer is filed, or if an answer is filed untimely, the Board may find, pursuant to a Motion for Default Judgment, that the allegations in the Consolidated complaint are true. Any request for an extension of time to file an answer must, pursuant to Section (b) of the Board's Rule and Regulations, be filed by the close of business on May 10, The request should be in writing and addressed to the Regional Director ofregion 29. NOTICE OF HEARING PLEASE TAKE NOTICE THAT on May 29, 2013, at 9:30 a.m. and on consecutive days thereafter until concluded, a hearing will be conducted before an administrative law judge of the National Labor Relations Board. At the hearing, Respondent and any other party to this proceeding have the right to appear and present testimony regarding the allegations in this Consolidated complaint. The procedures to be followed at the hearing are described in the 9 [Add. 21]

66 USCA Case # Document # Filed: 05/30/2013 Page 66 of 106 attached Form NLRB The procedure to request a postponement of the hearing is described in the attached Form NLRB Dated: April29, 2013 Is/ JAMES PAULSEN REGIONAL DIRECTOR NATIONAL LABOR RELATIONS BOARD REGION29 TWO METRO TECH CENTER STE 5100 FL5 BROOKLYN, NY Attachments 10 [Add. 22]

67 USCA Case # Document # Filed: 05/30/2013 Page 67 of 106 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION29 CABLEVISION SYSTEMS NEW YORK CITY CORPORATION and CABLEVISION SYSTEMS OF NEW YORK CITY CORPORATION and COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO Case 29-CA ; 29-CA ; 29-CA AFFIDAVIT OF SERVICE OF: Complaint and Notice of Hearing (with forms NLRB and NLRB-4668 attached) I, the undersigned employee of the National Labor Relations Board, being duly sworn, say that on, I served the above-entitled document(s) by certified or regular mail, as noted below, upon the following persons, addressed to them at the following addresses: PAUL HILBNER, Vice President, Human Resources for Field Operations CABLEVISION SYSTEMS NEW YORK CITY CORPORATION 9502 A VENUE D BROOKLYN, NY G. PETER CLARK, ESQ RDAVE 14TH FLOOR NEW YORK, NY RICK LEVESQUE CABLEVISION SYSTEMS OF NEW YORK CITY CORPORATION 9502 A VENUE D BROOKLYN, NY PETER CLARK, Attorney KAUFF MCGUIRE & MARGOLIS LLP 950 3RDAVE FL 14 NEW YORK, NY CERTIFIED MAIL, RETURN RECEIPT REQUESTED REGULAR MAIL CERTIFIED MAIL, RETURN RECEIPT REQUESTED REGULAR MAIL 11 [Add. 23]

68 USCA Case # Document # Filed: 05/30/2013 Page 68 of 106 GABRIELLE SEMEL, District Counsel COMMUNICATION WORKERS OF AMERICA, DISTRICT 1 - LEGAL DEPARTMENT 350 7TH AVE FL 18 NEW YORK, NY COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO 80 PINE ST FL37 NEW YORK, NY DANIEL E. CLIFTON, ESQ. LEWIS, CLIFTON & NIKOLAIDIS, P.C TH AVE STE 1800 NEW YORK, NY REGULAR MAIL CERTIFIED MAIL REGULAR MAIL Date ofnlrb Signature 12 [Add. 24]

69 USCA Case # Document # Filed: 05/30/2013 Page 69 of 106 FORMNLRB 4338 (6-90) UNITED STATES GOVERNMENT NATIONAL LABOR RELATIONS BOARD NOTICE Case 29-CA The issuance of the notice of formal hearing in this case does not mean that the matter cannot be disposed of by agreement of the parties. On the contrary, it is the policy of this office to encourage voluntary adjustments. The examiner or attorney assigned to the case will be pleased to receive and to act promptly upon your suggestions or comments to this end. An agreement between the parties, approved by the Regional Director, would serve to cancel the hearing. However, unless otherwise specifically ordered, the hearing will be held at the date, hour, and place indicated. Postponements will not be granted unless good and sufficient grounds are shown and the following requirements are met: (1) The request must be in writing. An original and two copies must be filed with the Regional Director when appropriate under 29 CFR ( a) or with the Division of Judges when appropriate under 29 CFR (b). (2) Grounds must be set forth in detail; (3) Alternative dates for any rescheduled hearing must be given; ( 4) The positions of all other parties must be ascertained in advance by the requesting party and set forth in the request; and (5) Copies must be simultaneously served on all other parties (listed below), and that fact must be noted on the request. Except under the most extreme conditions, no request for postponement will be granted during the three days immediately preceding the date of hearing. PAUL HILBNER, Vice President, Human Resources for Field Operations CABLEVISION SYSTEMS NEW YORK CITY CORPORATION 9502 A VENUE D BROOKLYN, NY G. PETER CLARK, ESQ RDAVE 14TH FLOOR NEW YORK, NY [Add. 25]

70 USCA Case # Document # Filed: 05/30/2013 Page 70 of 106 GABRIELLE SEMEL, District Counsel COMMUNICATION WORKERS OF AMERICA, DISTRICT 1 - LEGAL DEPARTMENT 350 7TH AVE FL 18 NEW YORK, NY COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO 80 PINE ST FL37 NEW YORK, NY [Add. 26]

71 USCA Case # Document # Filed: 05/30/2013 Page 71 of 106 Form NLRB-4668 (4-05) SUMMARY OF STANDARD PROCEDURES IN FORMAL HEARINGS HELD BEFORE THE NATIONAL LABOR RELATIONS BOARD IN UNFAIR LABOR PRACTICE PROCEEDINGS PURSUANT TO SECTION 10 OF THE NATIONAL LABOR RELATIONS ACT The hearing will be conducted by an administrative law judge of the National Labor Relations Board who will preside at the hearing as an independent, impartial finder of the facts and applicable law whose decision in due time will be served on the parties. The offices ofthe administrative law judges are located in Washington, DC; San Francisco, California; New York, N.Y.; and Atlanta, Georgia. At the date, hour, and place for which the hearing is set, the administrative law judge, upon the joint request of the parties, will conduct a "prehearing" conference, prior to or shortly after the opening of the hearing, to ensure that the issues are sharp and clearcut; or the administrative law judge may independently conduct such a conference. The administrative law judge will preside at such conference, but may, if the occasion arises, permit the parties to engage in private discussions. The conference will not necessarily be recorded, but it may well be that the labors of the conference will be evinced in the ultimate record, for example, in the form of statements of position, stipulations, and concessions. Except under unusual circumstances, the administrative law judge conducting the prehearing conference will be the one who will conduct the hearing; and it is expected that the formal hearing will commence or be resumed immediately upon completion of the prehearing conference. No prejudice will result to any party unwilling to participate in or make stipulations or concessions during any prehearing conference. (This is not to be construed as preventing the parties from meeting earlier for similar purposes. To the contrary, the parties are encouraged to meet prior to the time set for hearing in an effort to narrow the issues.) Parties may be represented by an attorney or other representative and present evidence relevant to the issues. All parties appearing before this hearing who have or whose witnesses have handicaps falling within the provisions of Section 504 of the Rehabilitation Act of 1973, as amended, and 29 C.P.R , and who in order to participate in this hearing need appropriate auxiliary aids, as defined in 29 C.P.R , should notify the Regional Director as soon as possible and request the necessary assistance. An official reporter will make the only official transcript of the proceedings, and all citations in briefs and arguments must refer to the official record. The Board will not certify any transcript other than the official transcript for use in any court litigation. Proposed corrections of the transcript should be submitted, either by way of stipulation or motion, to the administrative law judge for approval. All matter that is spoken in the hearing room while the hearing is in session will be recorded by the official reporter unless the administrative law judge specifically directs off-the-record discussion. In the event that any party wishes to make off-the-record statements, a request to go off the record should be directed to the administrative law judge and not to the official reporter. Statements of reasons in support of motions and objections should be specific and concise. The administrative law judge will allow an automatic exception to all adverse rulings and, upon appropriate order, an objection and exception will be permitted to stand to an entire line of questioning. All exhibits offered in evidence shall be in duplicate. Copies of exhibits should be supplied to the administrative law judge and other parties at the time the exhibits are offered in evidence. If a copy of any exhibit is not available at the time the original is received, it will be the responsibility of the party offering such exhibit to submit the copy to the administrative law judge before the close of hearing. In the event such copy is not submitted, and the filing has not been waived by the administrative law judge, any ruling receiving the exhibit may be rescinded and the exhibit rejected. Any party shall be entitled, on request, to a reasonable period of time at the close of the hearing for oral argument, which shall be included in the transcript of the hearing. In the absence of a request, the administrative law judge may ask for oral argument if, at the close of the hearing, it is believed that such argument would be beneficial to the understanding of the contentions of the parties and the factual issues involved. (OVE~f"dd. 27]

72 USCA Case # Document # Filed: 05/30/2013 Page 72 of 106 Form NLRB-4668 (4-05) Continued In the discretion of the administrative law judge, any party may, on request made before the close of the hearing, file a brief or proposed findings and conclusions, or both, with the administrative law judge who will fix the time for such filing. Any such filing submitted shall be double-spaced on by 11 inch paper. Attention of the parties is called to the following requirements laid down in Section of the Board's Rules and Regulations, with respect to the procedure to be followed before the proceeding is transferred to the Board: No request for an extension oftime within which to submit briefs or proposed findings to the administrative law judge will be considered unless received by the Chief Administrative Law Judge in Washington, DC (or, in cases under the branch offices in San Francisco, California; New York, New York; and Atlanta, Georgia, the Associate Chief Administrative Law Judge) at least 3 days prior to the expiration of time fixed for the submission of such documents. Notice of request for such extension of time must be served simultaneously on all other parties, and proof of such service furnished to the Chief Administrative Law Judge or the Associate Chief Administrative Law Judge, as the case may be. A quicker response is assured if the moving party secures the positions of the other parties and includes such in the request. All briefs or proposed findings filed with the administrative law judge must be submitted in triplicate, and may be printed or otherwise legibly duplicated with service on the other parties. In due course the administrative law judge will prepare and file with the Board a decision in this proceeding, and will cause a copy thereof to be served on each of the parties. Upon filing of this decision, the Board will enter an order transferring this case to itself, and will serve copies of that order, setting forth the date of such transfer, on all parties. At that point, the administrative law judge's official connection with the case will cease. The procedure to be followed before the Board from that point forward, with respect to the filing of exceptions to the administrative law judge's decision, the submission of supporting briefs, requests for oral argument before the Board, and related matters, is set forth in the Board's Rules and Regulations, particularly in Section and following sections. A summary of the more pertinent of these provisions will be served on the parties together with the order transferring the case to the Board. Adjustments or settlements consistent with the policies of the National Labor Relations Act reduce government expenditures and promote amity in labor relations. If adjustment appears possible, the administrative law judge may suggest discussions between the parties or, on request, will afford reasonable opportunity during the hearing for such discussions. 16 [Add. 28]

73 USCA Case # Document # Filed: 05/30/2013 Page 73 of 106 UNITED STATES GOVERNMENT NATIONAL LABOR RELATIONS BOARD REGION29 Agency Website: TWO METRO TECH CENTER STE 5100 Telephone: (718) BROOKLYN, NY Fax: (718) BY ELECTRONIC FILING Hon. Joel P. Biblowitz Associate Chief Administrative Law Judge National Labor Relations Board Division of Judges 120 West 45th Street, 11th Floor New York, NY May 14,2013 RE: CSC Holdings, LLC and Cablevision Systems New York City Corp. as a single employer Case Nos. 02-CA & 02-CA Cablevision Systems New York City Corp. Case Nos. 29-CA , 29-CA & 29-CA Dear Judge Biblowitz: Counsel for the Acting General Counsel submits this letter in response to the May 13, 2013 hearing postponement request submitted by CSC Holdings, LLC and Cablevision Systems New York City Corporation (jointly "Cablevision"). Cablevision seeks to postpone the hearing from May 29, 2013 to July 10, Counsel for the Acting General Counsel seeks to postpone the hearing to June 25, On April 17, 2013, Regional Director for Region 2, Karen Fernbach, issued a complaint in Case Nos. 02-CA & 02-CA against Cablevision. On April 29, 2013, Regional Director for Region 29, James G. Paulsen, issued a complaint in Case Nos. 29-CA , 29-CA & 29-CA against Cablevision Systems New York City Corporation. The hearings in the above-referenced matters are currently scheduled on May 29, 2013, before Administrative Law Judge Steven Fish. Counsel for the Acting General Counsel strenuously opposes Cablevision's request to postpone the hearing to July 10, The allegations at issue here are serious: among other things, the complaints allege that Cablevision violated Sections 8(a)(l), (3), and (5) of the Act by unlawfully implementing wage and benefit improvements, discharging 22 employees, and engaging in surface bargaining during a first contract. Moreover, Region 29 is currently seeking authorization to petition for injunctive relief under Section 1 O(j) of the Act. Therefore, the hearing in these matters should begin as quickly as possible. [Add. 29]

74 USCA Case # Document # Filed: 05/30/2013 Page 74 of 106 Han. Joel P. Biblowitz May 14,2013 Page 12 Cablevision argues that it would lack sufficient time to prepare its defense for a June 25, 2013 hearing date because its witnesses are unavailable in May and June 2013, due to Cablevision's mediation with Charging Party Union Commercial Workers of America, AFL CIO, and the company's fiscal quarter end, respectively. Additionally, Cablevision cites the unavailability of co-trial counsel during the week of July 1, and the complexity of the allegations in the instant cases, as its reasons for submitting its postponement request. As explained below, Cablevision's reasons for seeking a postponement do not warrant postponement of the hearing date. While Cablevision notes that a substantial number of its management personnel are participating in mediation until May 21st, it does not demonstrate that preparation cannot occur during the remainder of May. Cab levis ion also fails to explain how the end of its fiscal quarter in June somehow prevents it from conducting trial preparation before the Acting General Counsel's proposed hearing date of June 25, Cablevision has not contended that any of its management personnel are unavailable to attend a June 25, 2013 hearing because of any duties or responsibilities attributed to the end of Cablevision's fiscal quarter. Furthermore, counsel's unavailability during the week of July 1 should in no way prevent the hearing in this matter from moving forward on June 25th. Cablevision has retained three different law firms to represent it, and none have asserted an unavailability to attend a June 25th hearing. Cablevision has had sufficient time to prepare for its defense. Cablevision retained counsel during the investigation process, the Regions promptly notified Cablevision of the decisions to issue complaint in April2013, and Cablevision has filed answers to both complaints. Further, the Regions have decided to consolidate the Region 2 and Region 29 complaints in Region 29, and this decision does not change the nature of the allegations alleged against Cablevision, or its litigation strategy. Accordingly, Counsel for the Acting General Counsel respectfully requests that Cablevision's May 13, 2013 request to postpone the hearing to July 10, 2013 be denied, and that no further postponement requests be granted, absent extraordinary circumstances. Very truly yours, David Gribben Counsel for the Acting General Counsel National Labor Relations Board Region 2 Ry Ann McKay Hooper Counsel for the Acting General Counsel National Labor Relations Board Region 29 [Add. 30]

75 USCA Case # Document # Filed: 05/30/2013 Page 75 of 106 Hon. Joel P. Biblowitz May 14,2013 Page 13 Annie Hsu Counsel for the Acting General Counsel National Labor Relations Board Region 29 Genaira L. Tyee Counsel for the Acting General Counsel National Labor Relations Board Region 29 Cc: Peter Clark, Esq. Harlan Silverstein, Esq. Doreen Davis, Esq. Eugene Scalia, Esq. Gabrielle Semel, Esq. [Add. 31]

76 MAY USCA Case 13:31 # NLRB Document NY JUDGES # Filed: 05/30/ Page P.02/02 of 106 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS SOARD DIVISION OF JUDGES NEW YORK BRANCH OFFICE CABLEVISION SYSTEMS NEW YORK CITY CORPORATION Case NO$, 29-CA and 29-CA CA COMMUNICATION WORKERS OF AMERICA~ AFL CIO CSC HOLDINGS, LLC and CABLEVISION SYSTEMS NEW YORK CITY CORP., as a single employer and Case Nos, 2 CA CA COMMUNICATIONS WORKERS OF AMERICA, AFL CIO ORDER On May 14, Respondent's counsel request$ that these cases, scheduled for hearings on May 29, 2013, be postponed to July 10, On May 16, 2013, I granted the request of counsel to postpone these cases, but only until June 25, Counsel for the Respondent, by letter dated May 17, 2013, requests reconsideration of my Order and to have these cases postponed to July 10, Counsel for the Acting General Counsel opposes the July 10 date because counser is considering seeking injunctive relief pursuant to Section 1 O(j) of the Act. Counsel for the Respondent states that having the hearings scheduled for June 25, 2013 is no longer as urgent inelsmuch as the djscriminatees have returned to work. After due review, the reconsideration request of counsel for the Respondent Ia partially granted. The hearing(s) herein shall commence on July 8, 2013, at 9:30a.m., at a hearing room on the 14th Floor at the New York Judges' Office, 120 West 45th Street, New York, NY. Dated: May 21, 2013 New York, NY /" V.'"Ja /~~~-~~.. ~ ( ~ - ~ K~hneth W. Chu A'ctlng Associate Chief, - Administrative Law Judge [Add. 32] TOTAL P.02

77 USCA Case # Document # Filed: 05/30/2013 Page 77 of 106 GIBSON. DUNN Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC Tel Eugene Scalia Direct: Fax: May22, 2013 BY UPS NEXT DAY AIR._.,...,... v.w.w.w.-.w Lafe E. Solomon,.Esq. Acting General Counsel National Labor Relations Board th St.; N.W. Washington, D.C Re: CSC Holdings. LLC& Cablevision Svstems New. York City Corp., Nos. 02-CA- 085~Jl,02~CA.. Q90823: Cablevision Svstems New York City Corp., Nos. ~9-GA , 29-CA , 29-CA"'l00175 Dear Mr. Solomon: I represent CSC Holdings, LLC ("CSC''), a Respondent in Case Nos. 02-CA and 02.. CA (the ''Bronx Case''), and. Cablevision Systems New York City Corp. C'Cablevision"}~ also a Respondent in the Bronx Case and. the sole Respondent in Case Nos. 29~CA , 29-CA , and 29-CA (the ~'Brooklyn Case"). The Regional Director for Region 2, Karen Fernbach,.issued an unfair-labor-practice complaint in the Bronx Case on April 17, 2013, and the Regional Director for Region 29, James Paulsen, did the same in the Brooklyn Ca,se onapril29, Z013. I write on behalfofcsc and Cablevision to respectfully request that, pursuant to section 3(d) of the National Labor Relations Act, 29 U.S.C. 153(d), you direct the two Regional Directors, their staffs, and all other attorneys or other personnel under your supervision to suspend prosecution ofthe Bronx and Brooklyn Cases and any related proceedings until such time as the Board regains ajawful quorum of three validly appointed Members as required by 29 U.S.C. 153(b) and New Process Steel, LP v. NLRB, 130 S. Ct (2010) and the Regional Directors are properly appointed. Continued prosecution of the Bronx and Brooklyn Cases is inappropriate, and a suspension of the litigation is warranted, for several reasons. As an initial matter, the complaints in both cases are nullities because the Regional Directors.had no authority to issue them. The Act makes clear that issuance of a complaint is an exercise of the Board's authority. 29 U.S. C. 1'60(b) (complaint may be issued only by "the Board, or any agent or agency designated by the Board for such purposes"). The Board itself cannot exercise any of the authority conferred by the Act, however, unless it possesses a quorum of three validly appointed members. See id. l53(b); New Process Steel, 130 S. Ct. at And as the Brussels Century City Dallas Denver Dubai Hong J!~~n d~~jos Angeles Munich New York Orange County Palo Alto Paris San Francisco Sao Paulo Singapore Washington, D.C.

78 USCA Case # Document # Filed: 05/30/2013 Page 78 of 106 GIBSON DUNN Lafe E. Solomon, Esq; May 22,2013 Page2 J i D~e. Circuitrecently held, the Board has lacked a quorum since at least January 3, 2012: Althoygh the President purported to.name three additional members to the Board on January 4, 2012, without the Senate's advice or consent, those appointments were not and are not valid under the Recess Appointments Clause, U.S. Con st. l;lrt. II, 2, cl. 3, because they were not made "during the Recess of the Senate," id., and because the vacancies that they allegedly filled did not "happen'' during such a recess, id.; see Noel Canning v. NLRB, 705 F.3d490, (D.C. Cir. 2Q13),petitionfor cert. filed, No (Apr. 25, 2013). Last week, the Third Circuit similarly held that the President's purported appointment of Craig Becker in 2010 was invalid because the Clause permits appointments only during intersession recesses of the Senate. See NLRB v. New Vista Nursing & Rehabilitation, _ F.3d _; 2013 WL , at *11-30 (3d Cir. May 17, 2013). Because the Board lacked and continues to lack a quorum, not only are its own putative actions ''void,'' Noel Canning, 705 F.3d at 514, but any allegedly delegated authority also no longer tnay be exercised, see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, (D.C. Cir. 2009). Although the Board may delegate many of its statutory powers to certain persons and entities, see, e.g.,.'29 l].s.c. l53(b), 160(b), it "cannot by delegating its authority _ circumvent the statutory Board quorum requirement, because this requirement must always he satisfied,'' Laurel Baye, 564 F.3d at 473. Neither the Board nor any dele gee, therefore, could lawfully issue the complaints in the Bronx or Brooklyn Cases. I I The Board and its Regional Directors would have even less basis to assert authority to seek a preliminary injunction or other judicial action under section 1 OG) of the Act. The ~'power'' to seek such remedies is conferred exclusively on "the Board." 29 U.S.C. l60g). Because the Board lacks a quorum, it cannot wield that power. Although Regional Directors have claimed il1 other litigation that they may exercise that power on the Board's behalf pursuant to a delegation by the Board in November2011, when it still supposedly possessed a quorum, see 76 Fed. Reg. 69,768 (Nov. 9, 2011), that assertion is meritless for numerous reasons, including that: Under Laurel Baye, such a delegation is irrelevant, as no authority delegated by the Board may be exercised once the Board lost a quorum, see 564 F.3d at 473; thatparticulqr delegation was itself unlawful; moreover, because the Board lacked a quorum everi at thattime, see New Vista, 2013 WL ,at *11-JO, and because by its own terms it sprang ;into effect only after the Board lost a quorum and thereby became powerless to act or to delegate authority; and that delegation (unlawfully) purports to confer authority to seek section 1 OG) relief on the General Counsel, not on the Regional Directors-. who in any case cannot act because their own appointments were unlawful. Section 1 OU) proceedings also would needlessly consume the scarce time and resources of federal courts and unjustifiably seek to impose injunctions pending final rulings by the Board that it cannot issue. [Add. 34]

79 USCA Case # Document # Filed: 05/30/2013 Page 79 of 106 GlBS N UNN Lafe E. Solomon, Esq. May 22,2013 Page 3 Even ifthe complaints were validly issued, the Regional Directors of Regions 2 and 29 cannot lawf\llly prosecute them because they themselves were not validly appointed. The Act and longstanding Board policy establish that appointment of Regional Directors requires Board approval. See 29 U.S.C. 154(a); 20 Fed, Reg. 2175, 2176 (Apr. 6, 1955). When both Ms. Fembach and Mr. Paulsen received their appointments, however, the Board lacked a quorun;1 (and indeed has been without one since August 2011) and thus had no power to act. Their appointment~ therefore likewise were '~void,'' and accordingly they could not and cannotact for the Board. 2 It would make no sense to continue litigation of these actions when neither the Board nor any of its delegees have any power to conduct further proceedings, and the Board cannot issue a final order. We recognize that the Board has expressed the view that, despite the D.C. Circuit's Noel. Canning decision, the Board may continue to take action under the Act. See, e.g., Bloomingdale's, Inc., 359 NLRB No. 113 (2013). Notwithstanding that erroneous position, there is no reason why Regional Directors and other Board staff should be permitted to continue expending public resources in pursuing litigation that, under the law of the D.C. Circuit_,.,.,.,.in which CSC and Cablevision are entitled to seek review of any final Board ruling, see 29 U.S.C. 160(f)-is ultra vires and will ultimately be adjudged a nullity. Subjecting private litigants to the massive, unjustified burdens of litigating these and many other cases nonetheless---which the Regional Directors had no valid authority to initiate, and in which the Board cannot issue a final order-.. is manifestly unfair, inefficient, and incompatible with core principles of equity. We therefore request that, pursuant to section 3(d) of the Act, 29 U.S.C. l53(d), you direct the Regional Directors of Regions 2 and 29, and any and all other Board personnel subject to your supervision, to suspend the prosecution oft4e Bronx and Brooklyn Cases and any related proceedings until such time as the Board regains a valid quorum oftbree.constitutionally appointed Members. At minimum, we request that you direct all such personnel to suspend such litigation until the D.C. Circuit resolves already pending petitions for writs of mandamus to prevent prosecution of similar actions, In re Geary, No (D.C. Cir.); In re /'5'"FTC, LLC, (D.C. Cir.), and the court's resolution of a petition for similar relief to be filed, if nec~ssary, by CSC and Cablevision. 2 Accordingly, while for simplicity and clarity this letter uses the term "Regional Director" to refer to Ms. Fembach and Mr. Paulsen, they do not, with all respect, properly hold those positions. We thus respectfully also request that Ms. Fernbach and Mr. Paulsen cease exercising the powers of Regional Director with respect to CSC and Cablevision, and that they and the attorneys and other personnel subject to their supervision refrain from taking any further steps to prosecute br otherwise process the Brooklyn and Bronx Cases. [Add. 35]

80 USCA Case # Document # Filed: 05/30/2013 Page 80 of 106 GIBSON DUN'N Lafe E. Solomon~ Esq. May 22,2013 Page4 We respectfully ask for a decision on this request by May 28, 2013, so that CSC and Cablevision may proceed expeditiously to the courts for relief if necessary. Karen Fembach, National Labor Relations Board Regional Director, Region 2 Jame$ Paulsen, National Labor Relations Board Regional Director, Region 29 Gabrielle Semel, District Counsel, Legal Department, CW A District 1 Steven Weissman, Esq. Doreen S. Davis, Esq. Jerome B. Kauff, Esq. [Add. 36]

81 USCA Case # Document # Filed: 05/30/2013 Page 81 of 106 UNITED STATES OF A:VIERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 29 CSC HOLDINGS, LLC and CABLEYISION SYSTEMS NEW YORK CITY CORP.. a Single Employer. Respondent and COMMlJNICATION WORKERS OF AMERICA, AFL-CIO, Case Nos. 02-C/\ C/\-090X2:1 29-C'A-0970 I l 29-C/\ CA Charging Party. ORDER FURTHER CONSOLIDATING CASES, SECOND CONSOLIDATED COMPLAINT AND NOTICE OF HEARING Pursuant to Section of the Rules and Regulations of the National Labor Relations Board (the Board), and to avoid unnecessary costs or delay. IT IS ORDERED 'ri-ja't the Consolidated Complaint and Notice of!fearing issued on April in Case Nos. 02-Ci\ and 02-C/\ alleging that CSC lloldings. LLC ( CSC Holdings) and Cablevision Systems New York City Corp. (Cablevision Systems), a single employer (Respondent) violated the National Labor Relations Act. 29 lj.s.c. ~ 151 et seq. (the Act). by engaging in unfair labor practices. is rurthcr consolidated with Case Nos. 29-C/\ C/\ and 29-CA- l a C\msolidated Complaint and Notice of llcaring vvhich issued on.\pril 29. :2o 13. alleging that Respondent has engaged in tl1rthcr unl~tir labor practices vvithin the meaning or the /\ct. [Add. 37]

82 USCA Case # Document # Filed: 05/30/2013 Page 82 of 106 (, This Second Consolidated Complaint and Notice of Hearing, issued pursuant to Section l 0( b) of the Act and Section or the Board s Rules and Regulations. is based on these consolidated cases and alleges that Respondent has violated the Act as described below: 1. The charges in the above cases were filed by the Communication Workers of America. AFL-CIO ( ljnion) as set forth in the f()jlowing table, and a copy was served by regular mail upon the Respondent(s) on the dates indicated: ~ (~;~~-~----~v()~ ~---_~1,~~~-~::;,-~~~~~--r ;?:,.~;;~~~~-~~~~ r-----a~~;~-~~ i!;:i --r- - n~-;~-s~,.,_,e (,----) r:~=:~:ll ~~-~--~~~J~~~;~~:-:r~:~r:aJ/1~~] 1 02-CA I, ~ -+ York Ctty Corp. I 1 Cah/evision~~:vste1ns New / 10/05/12 j 10/10112!02-CA~o90823 i -Ame~d,;d- ~--C;;blevb~ion Systems New I 11116/12 TJUJ9112j I I _ York City Corp. I.. 1 r J_ L ~ ! <:A Second I Cabfevision,?ystems New I I I ~ Amended --J--- York (tty Corp. r--{}2-c~1-o9082_~--l Thi;~d----- I Cablevision Systents New I I! Atnended! York City Corp. and its / I I I parent co. C...';c Holdings, i I ~~~9~~(~=,)::()1~ -J~ --~- ~~ ~t,:~;i1~1s:~;,v-j_-_~~:24/1j-j~ ~ I 29-C:.i-097/J/3 i Amended I Cabfevi~ion Systems New J {Jl/28113 I 0/128/13 ---! ' I }' k(... C I ; I 1 1 or t~f orp. i r ----, ~ "' t - --.: ~--~ ~ r--~ i j l 29--CA ! Second 1 (ahlev!swn.systems lvew 1 04/26/13 04!26113 :! l Atnended I York Ci(v COJp. j I i 29-f>f i ~-;:;.i ~ r ~ ~ Cab/evision System.~.; f~( 05/ / iveh) Vork City Corp. and 1 I', 1 Atnended i I. I c-~( ;'C lloldings, LLC, a.s a i I. ;ingle employer I 1.. I. 2 [Add. 38]

83 USCA Case # Document # Filed: 05/30/2013 Page 83 of 106 r- ;9~C.~1=~;-755 ;;-r r--c;~j;/~-l~;;;;;~;-5~~;;:~-~;--;v~~~--r-----o-ii31113 T o21fi4113 l 1! I J r ~ --. f J I : j York Ct~r (orp. i 1 I r ~ r j i 29-CA Atnended Cablevision Systents ;Vew 02/19//J 1 02/21113 I ; I : York City Corp. I! r-- _- -==-r ~ : 29-CA i Second! Cablevision Syst-ems New I 04/26/13 i Antended I York City Corp. I j 1 ~ ( l ca ' / Cahlevision ~~}'stems 1Vew I 03/12/13 I 03/ I York Ci~v Coq;. I I l " (a) At all material times, esc lloldings, has been a domestic corporation \-Vith an office and headquarters located at 1111 Stewart /\venue, Bethpage. New York, engaged in various business enterprises, including the provision of cable television and communications services i11 various parts of the United States. (b) At all material times, Cablevision Systems New York City Corp., a domestic corporation with its corporate office located at llll Stewart Avenue. Bethpage. New York; with a facility at 500 Brush Avenue. Bronx. New York (Bronx facility)~ and facilities located in Brooklyn, Nevv Yorlc has been engaged in the business of providing broadband cahle communication services to residential and commercial customers in the Bronx, Brooklyn. and other locations in New, York. Ne\-v York. (c) At all material times, C'SC Holdings and ('ablcvision Systems have been affiliated business enterprises \vith common officers. ownership. directors. management. and supervision; have f(mnulated and administered a common labor policy: have shared common premises and facilities: have provided services for and made sales to each other: have interchanged personnel \vith each other: have interrelated operations \Vilh common management and have held them sci vcs out to the puhl ic as " si nglc-i ntegratcd husi ness enterprise. (d) Based on its operations ckscri bed above in suhparag1 aph ( t.: ). CSC [Add. 39]

84 USCA Case # Document # Filed: 05/30/2013 Page 84 of 106 Holdings and Cablevision Systems constitute a single-integrated business enterprise and a single employer within the meaning of the Act. (e) Annually. in the course and conduct of their business operations CSC Holdings and Cablevision Systems separately and collectively derive revenues in excess of $ (f) Annually. in the course and conduct of their business operations CSC Holdings and Cablevision Systems separately and collectively purchase and receive at their facilities in Nevv York State, goods and services valued in excess of $5,000 directly from suppliers located outside the State of New York. 3. At all material times, Respondent has been an employer engaged m commerce \Vithin the meaning or Section 2(2). (6) and (7) of the Act. 4-. At all material times, the Union has been a labor organization within the meaning of Section 2( 5) of the Act. 5. (a) At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of Respondent within the meaning of Section 2( 11) of the Act and agents of Respondent within the meaning of Section 2( 13) of the t\ct): James L. Dolan Barry Jvlonopoli Richard I louse Chief r~xecutive Oflicer Vice President Field Operations ('onstruction iv'1anager.john I -)Tlll ( 'onstruction rvtanagcr _\ndrc I )i;t/. hhcr! kpartment Supervisor 4 [Add. 40]

85 USCA Case # Document # Filed: 05/30/2013 Page 85 of 106 r::vvan [sa:::tcs Randy Reed Winston Mcintosh Daryl Gaines Rick l.a Vesque Plant f\1aintcnance Supervisor Construction Supervisor Construction Supervisor Area Operations Manager Vice President (b) At all material times. Harry l lughes held the position of Respondent's Corporate Investigator for Respondent's Security Department and has been an agent of Respondent within the meaning of Section 2( 13) of the Act. 6. In or about April. 2012, the precise date being unknown, Respondent. by James L. Dolan (Dolan), at a meeting of employees at the Bronx h1cility: (a) Promised its employees improved wages and benefits: without fear or retaliation: (b) Pron1ised its employees an improved system for registering their complaints, (c) By soliciting employee complaints and grievances. promised its employees increased benefits and improved terms and conditions of employment. (d) Respondent engaged in the conduct described above in subparagraphs 6(a) through 6( c) in order to discourage employees tl om selecting the Union as their collective bargaining reprcscntati\.-e. 7. (a) <Jn or about Apri I I the Lrnploycr. by various methods. inc I uding a Po\verPoin1 presentation sho\vil to employ ces at the nronx l~tci I it\ and other locations. [Add. 41]

86 USCA Case # Document # Filed: 05/30/2013 Page 86 of 106 (b) ln or about iv1ay Respondent implemented the tirst phase ofits wage and bendlt improvements. (c) Respondent engaged in the conduct described above in subparagraphs 7(a) and 7( b) because certain employees of Respondent joined or supported the Union and engaged in concerted activities. and to discourage employees from engaging in these activities. 8. (a) On or about June 26, 2012, Respondent, by Dolan, at a meeting of employees at the Bronx t"acility impliedly threatened employees with the loss of opportunities for training. and advancement and loss of work if they selected the Union as their collective-bargaining representative. (b) On or about June 26, 2012, Respondent, by Dolan. at a meeting of employees at the Bronx facility threatened employees with reduced benefits and n1ore onerous working conditions i r they selected the Union as their collective-bargaining representative. 9. rhe t()llowing employees of Respondent (the Unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: All full-time and regular part-time field service technicians, outside plant technicians, audit technicians, inside plant technicians, construction technicians. network fiber technicians, logistics associates. regional control center ( RCC) representatives and coordinators employed hy the Employer at its Brooklyn. New York facilities Excluded: All other employees, including customer service employees, human resource department employees, professional employees. guards, and supervisors as defined in Section 2( ll) of the Act. 10. ( )n February 7. ~01 ~. following the conduct of an election in Case No. ~9-RC- 070X(n. tih~ Board ccrtilicd the llnion <IS the c\clusivc collective-bargaining representative ofthe l '!lit. 6 [Add. 42]

87 USCA Case # Document # Filed: 05/30/2013 Page 87 of 106 II. At all times since February based on Section 9(a) of the Act the Union has been the exclusive collective-bargaining representative of the Unit. 12. (a) At various times from about May 30, through March Respondent and the Charging Party met for the purposes of negotiating an initial collectivebargaining agreement with respect to wages. hours. and other terms and conditions of en1ployn1ent. (b) During the period described above in paragraph 12(a). Respondent engaged in surtace bargaining \Vith no intent of reaching agreement by: ( l) refusing to meet at reasonable times~ (2) refusing to discuss economic issues until non-economic issues were resolved: (3) insisting on changing the scope of the certified bargaining unit: (4) rigidly adhering to proposals that are predictably unacceptable to the Union: (5) refusing to discuss a union security clause and then raising philosophical objections to such clause~ (6) submitting regressive proposals to the Union: (7) withdraw ing from a tentative agreement: (8) refusing to discuss mandatory subjects of bargaining: and (9) by significantly delaying the provision of relevant wage information to the Union. {c) By its overall conduct, including the conduct described above in paragraph I 2(b ). Respondent has failed and refused to bargain in good!~lith with the Union as the exclusive collective-bargaining representative of the Unit. 1 ').1. (a) Since about August 2]. 20 I :2. the t inion has requested. in writing. that Respondent furnish it with the fc)llowing inf(>rmation regarding employees at the Bronx 1~1cilit:v: (I) clocuments related to changes made during the period April I to the present vvith respect to \\ages and hcncfits: a Career Progression Plan: and a salar) matrix of all employees. cmplo.)ed i 11 the saml' or similar.ioh classi flcatinns as the l i nil 7 [Add. 43]

88 USCA Case # Document # Filed: 05/30/2013 Page 88 of 106 (b) During bargaining. as described above in paragraph 12(a), the Union demonstrated to the Employer that the inf()rmation requested in paragraph 13(a) is necessary tor, and relevant to. the Union s performance of its duties as the exclusive collective-bargaining representative of the Unit. (c) From about August to about March A. 2013, the Respondent delayed in furnishing the Union with the intormation requested by it as described above m paragraph 13(a). 14. About January 24, 2013 Respondent, through Daryl Gains, instructed employees not to engage in activities in support of the Union. 15. About February 7, Respondent, by Harry Hughes, in front of the Madison Square Garden Arena in New York City, New York, engaged in surveillance of en1ployees engaged in union activities. 16. About the first week of February Respondent, by Rick La Vesque, in his office at Respondent's Street facility. informed a Unit employee that it was futile t(x the employee to support the Union because bargaining ior a contract with Respondent was futile. 17. (a) On January 3ft certain Unit employees of Respondent ceased work concertedly and engaged in a strike. (b) rhc strike described above in paragraph 17(a) was caused by Respondent's unl~lir labor practices described above in paragraphs I 2(a) through (c). 18. (a) On January 30, Respondent by Rick LaVesquc. informed the following employees engaged in the un1~tir labor practice :.;trike described above in paragraph J 7, that they had been permanently replaced: 8 [Add. 44]

89 USCA Case # Document # Filed: 05/30/2013 Page 89 of 106 Clarence Adams David Gifford La "kesia Johnson Courtney Graham Miles Watson Andre Bellato Jerome Thompson 'frevor fviitchell Ray Meyers f'v1arlon Gayle Richard Wilcher Eric Ocasio Malik Coleman Andre Riggs Raymond Reid Borris f I. Reid Steven Ashurst Shaun fvlorgan Stanley Galloway Brent Randein Corey Williams Raymond Williams (b) On January 30, 2013, Respondent directed the employees described above in paragraph 18(a) to turn in their identification badges, keys. and radios. and had these employees escorted out of the facility by NYPD oftieers. (c) By the conduct described above in paragraphs l8(a) and (b), Respondent discharged the namtxi employees on January 30, (d) On various dates beginning on February 6, 2013, and ending on March 20, Respondent reinstated the named employees to their former positions of employment. (e) T'he reinstatement of the employees as described in paragraph 18(d) was without backpay. (f) Respondent engaged in the conduct described above in paragraphs 18(a) through (e) because the named employees of Respondent assisted the Union and engaged in concerted activities. and to discourage employees lf om engaging in these activities. 9 [Add. 45]

90 USCA Case # Document # Filed: 05/30/2013 Page 90 of (a) In the alternative, if the strike described above in paragraph 17(a) \Vas not caused and/or prolonged by the unl-~1ir labor practices. the work stoppage described in paragraph 1 7(a) was an economic strike. (b) On January 30, by indicating that thev would return to their work II ' duties. the It)!lowing employees. vvho engaged in the strike described above in paragraph I 9(a) made an unconditional offer to return to their former positions of employment: Clarence Adams Eric Ocasio David Gifford Malik Coleman La 'kesia Johnson Andre Riggs Courtney Graham Raymond Reid Miles Watson Borris H. Reid Andre Bellah) Steven Ashurst Jerome Thompson Shaun Morgan Trevor Mitchell Stanley Galloway! Ray Meyers Brent Randein Marlon Gayle Richard Wilcher Corey Williams Raymond \Villiams (c) 'fhe Respondent refused to reinstate the employees described above in paragraph l9(a) upon their unconditional otter to return to work. (d) Respondent engaged in the conduct described above in paragraphs 19 (a) through (c) because the named employees of Respondent assisted the Union and engaged in concerted activities. and to discourage employees from engaging in these activities. 20. By the conduct described above in paragraphs 6 through g and 14 through 16, Rcspo11<..knl has been intcrkring \Vilh. restraining, and coercing employees in the exercise of the rights guaranteed in SL'Cl_ion 7 o!"thc :\ct in violation of Section X(a)( 1) of the /\ct. 1o [Add. 46]

91 USCA Case # Document # Filed: 05/30/2013 Page 91 of By the conduct described above in paragraphs 7, 18 and 19, Respondent has been discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Section 8{a)( l) and (3) of the Act. 22. By the conduct described above in paragraphs 12 and 13, Respondent has been f~1iling and refusing to bargain collectively and in good faith vvith the exclusive collectivebargaining representative of its employees in violation of Section 8(a)( I) and (5) of the Act. 23. 'The unfair labor practices of Respondent, described above, affect commerce within the meaning of Section 2( 6) and (7) of the Act. WHEREFORE As part of the remedy for the unt~lir labor practices alleged above, the Acting (.Jenera! Counsel seeks an Order requiring that the Notice be read to employees during working time by a high level official of Respondent at its facilities in the Bronx, New York: Shelton. Connecticut White Plains. New York: Newark. New Jersey: and in Nassau and Suffolk Counties, New York. As part of the remedy for the unfair labor practices alleged above in paragraphs 12 and 13. the Acting General Counsel seeks an Order requiring Respondent to: (I) bargain on request vvithin fifteen (15) days of a Board Order: (2) bargain on request I(H a minimum of fifteen (15) hours a week until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining~ and (3) prepare written bargaining progress reports every li ttcen ( 15) days and submit them to the Regional Director of Region 29 and also serve the reports on the Charging Party to rrovide the C'hc.trging Party with an opportunity to reply. 1\s part ol'!hl~ remedy, tlw unbir labor practices alleged ahove in paragraphs 1::?. dnd 1.1. the Acting C icncral Cou11scl seeks ~lil Order n.'ljliiring Respondent to bargain in good litilh \Vith 11 [Add. 47]

92 USCA Case # Document # Filed: 05/30/2013 Page 92 of 106 Charging Party. on request, for an additional period of twelve ( 12) months as provided for by Jfar-.Juc PoultFy, 136 N LRB 785 ( 1962). as the recognized bargaining representative in the appropriate unit. 'The General Counsel further seeks all other relief as may be just and proper to remedy the unt~1ir labor practices alleged. As part of the remedy t()r the unfair labor practices alleged above in paragraphs 18, and ll1 the alternative paragraph 19, the Acting General Counsel seeks an Order requiring reimbursement of amounts equal to the difference in taxes owed upon receipt of a lump-sum payment and taxes that would have been o'vved had there been no discrimination in accordance with Latino Express, 359 NLRB No. 44 (2012). The Acting General Counsel further seeks that Respondent be required to submit the appropriate documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate periods. Finally, the Acting General Counsel seeks all other relief as may be just and proper to remedy the unfair labor practices alleged. ANSWER REQUII~EMENJ: Respondent is notified that. pursuant to Sections and of the Boarc.rs Rules and Regulations: it must file an answer to the Consolidated Complaint. The answer must be l eceived bv this office on or before.june 7, 2013, or postmarked on or before.june 6, Respondent should tile an original and {()ur copies uf the answer \Vith this office and serve a copy 0 r the answer on each or the parties. An answer may also be filed electronically through the Agency's website. Tel file electronically. go to\\\\\\ nlrh.go\. click on File Case Documents, enter t.hc NLRB Case f\t~mhcr. :md f{llio\\ the detailed instructions. rhe responsibility for the receipt and usability of the Jl1~\n:r resb e\cilhively upon the sender. nics>; notillcation on!he /\gency s \Vchsitc [Add. 48]

93 USCA Case # Document # Filed: 05/30/2013 Page 93 of 106 informs users that the Agency's E-Filing system is officially determined to be in technical failure because it is unable to receive documents tor a continuous period of more than 2 hours after 12:00 noon (Eastern Time) on the due date for filing, a f~lilure to timely file the answer \Viii not be excused on the bases that the transmission could not be accomplished because the Agency's website was off-line or unavailable for some other reason. The Boanrs Rules and Regulations require that an answer by signed by counsel or non-attorney representative for represented parties or by the party ifnot represented. See Section Iflhe ansvv er being filed electronically is a pdf document containing the required signature. no paper copies of that answer need to be transn1itted to the Regional Otlice. However, if the electronic version of an answer to a complaint is not a pdf tile containing the require~ signature, then the E-Filing rules require that such answer containing the required signature continue to be submitted to the Regional OtTice by traditional means within three (3) business days after the date of electronic tiling. Service of the answer on each of the other parties must still be accomplished by means allowed under the Board's Rules and Regulations. The answer may not be filed by h1csimile transmission. If no answer is Hied, or if an answer is tiled untimely, the Board may find, pursuant to a Motion for Def"lullt Judgment that the allegations in the Consolidated Complaint are true. Any request for an extension of time to tile an answer must. pursuant to Section l I (b) of the Board's Rules and Regulations, be filed by the close of business on June rhe request should be in writing and addressed to the Regional Director of Region 29. NOTICE OF HEARING PLEASE 'TAKE NOTIC[~ THAT on.july 8, 2013, at 9:30a.m. and on consecutive days thereafter unli I cone! uded.. a hearing wi II be conducted be fore an administrative lmv j udgc or the!'-jalional f.i.ihnr Relations Hoard at :.1 hearing roon1 un the 14r 11 rluor at the \ic\\ '/nrk Judge':; 13 [Add. 49]

94 USCA Case # Document # Filed: 05/30/2013 Page 94 of 106 Office, 120 \Vest Street, New York, NY. At the hearing, Respondent and any other party to this proceeding have the right to appear and present testimony regarding the allegations in this Consolidated Cmnplaint. The procedures to be followed at the hearing are described in the attached Form NLRB The procedure to request a postponement of the hearing is described in the attached Form NLRB Attachments Dated: May 24, 2013 Brooklyn, New York 17 1/-( ~~ J~ULSEN Regional Director, Region 29 National Labor Relations Board 2 MetroTech Center, Suite 5100 Brooklyn, NY [Add. 50]

95 j USCA Case # Document # Filed: 05/30/2013 Page 95 of 106 [Add. 51]

96 USCA Case # Document # Filed: 05/30/2013 Page 96 of 106 I.I 1 The Third Circuit's decision in NLRB v. New Vista Nursing and Rehabilitation, -- F.3d --, 2013 WL (3d Cir. May 16, 2013), should not change this result. As noted above, there still remains a split in the circuits regarding the validity of intrasession recess appointtnents. 2 The Board's appointments of Regional Directors Paulsen and Fern bach are also in accord with this conclusion. See Bloomingdale's, 359 NLRB No. 113 (2013). [Add. 52]

97 USCA Case # Document # Filed: 05/30/2013 Page 97 of 106 [Add. 53]