In Re CSC Holdings.cadc (13-1191).2013.05.30.Petition for Mandamus

7/28/2019 In Re CSC Holdings.cadc (13-1191).2013.05.30.Petition for Mandamus

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Utffm Sr;\TES COUOF APPEALSfOA DISm:CT OF COLUMBIA CIRruT

RLEO MAY 3,t12013I MAY 302013 1RECEIVED' - - - - - - ~ i ' i T ' i ' i ' : r l U N I T E D STATES COURT OF P P E , ~ ~ CLERK

FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN RE CSC HOLDINGS, LLC,AND CABLEVISION SYSTEMSNEW YORK CITY CORP., PETITIONERS Case No. 13-1191

PETITION FOR WRIT OF MANDAMUS OR PROHIBITION

Doreen S. DavisJONES DAY222. East 41 st StreetNew York, N.Y. 10017(212) 326-3833Jerome B. KauffMUFF, McGUIRE & MARGOLIS LLP950 Third Avenue14th FloorNew York, N.Y. 10022(212) 644-1010

Matthew D. McGillCounsel ofRecordEugene ScaliaGIBSON, DUNN & CRUTCHER LLP1050 Connecticut Avenue, N.W.Washington, D.C. 20036(202) [email protected]

Counselfor Petitioners CSC Holdings, LLC andCablevision Systems New York City Corp.


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TABLEOFCONTENTS

Page

INTRODUCTION ..................................................................................................... 1RELIEFSOUGHT ..................................................................................................... 3ISSUEPRESENTED ................................................................................................. 4STATEMENTOFFACTS ......................................................................................... 4REASONSWHYTHEWRITSHOULDISSUE ...................................................... 6

I. THE COMPANIES HAVENO OTHERREMEDY TO PREVENT THEBOARD AND ITS AGENTS FROM CONDUCTING UNLAWFULPROCEEDINGS. ........................................................................................ 7

II. THE COMPANIES HAVE ACLEARAND INDISPUTABLE RIGHTNOT TO FACE PROCEEDINGS THAT THE BOARDS AGENTS

LACKPOWER TO CONDUCT. ................................................................. 10A. Neither The Board Nor Its Agents May Exercise The

Boards Powers Under The Act Because The Board

Lacks A Quorum. ...................................................................... 11B. The Commencement And Continued Conduct Of

Unfair-Labor-Practice Proceedings By The Boards

Agents Is Clearly Unlawful. ..................................................... 14C. The Board And Its Agents Lack Authority To

Commence Federal-Court Litigation To Seek Injunctive

Relief Under Section 10(j). ....................................................... 19III. MANDAMUS IS APPROPRIATE TO ENFORCE THIS COURTS

ORDERS,PROTECT ITS JURISDICTION,CONFINE THE AGENCY

TO THE LAWFUL EXERCISE OF ITS JURISDICTION,AND

PREVENT IRREPARABLE HARM. ............................................................ 21A. Mandamus Is Necessary To End The Boards Ongoing

Defiance Of This Courts Rulings. ........................................... 21


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B. Mandamus Is Appropriate To Protect This CourtsJurisdiction. ............................................................................... 25

C. Mandamus Would Avert Irreparable Harm To TheCompanies And The Public. ..................................................... 27

CONCLUSION ........................................................................................................ 30CERTIFICATEOFPARTIESANDAMICICURIAE

CORPORATEDISCLOSURESTATEMENT

ADDENDUM

CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES

Page(s)

CasesAssn of Natl Advertisers, Inc. v. FTC,

627 F.2d 1151 (D.C. Cir. 1979) ............................................................................. 9

Belize Soc. Dev. Ltd. v. Govt 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) .............................................................................19

Bloomingdales, Inc.,

359 NLRB No. 113, 2013 WL 1901335 (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 Commn,

561 F.2d 344 (D.C. Cir. 1977) ...................................................................... 22, 23

Conkright v. Frommert,129 S. Ct. 1861 (2009) (Ginsburg, J., in chambers) ............................................. 25

Evans v. Stephens,

387 F.3d 1220 (11th Cir. 2004) ............................................................................25

FTC v. Dean Foods Co.,

384 U.S. 597 (1966) ............................................................................................. 26

In re City of New York,

607 F.3d 923 (2d Cir. 2010) .................................................................................26

In re Sealed Case,

151 F.3d 1059 (D.C. Cir. 1998) ............................................................................. 2

_______________

* Authorities upon which we chiefly rely are marked with asterisks.


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iv

* 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) ...........................................................................28

Myers v. Bethlehem Shipbldg. Corp.,

303 U.S. 41 (1938) ............................................................................................... 29

Nara v. Frank,

494 F.3d 1132 (3d Cir. 2007) ...............................................................................25

* New Process Steel, LP v. NLRB,

130 S. Ct. 2635 (2010) ........................................................................ 4, 10, 11, 20

* NLRB v. New Vista Nursing & Rehab.,

__ F.3d __, 2013 WL 2099742 (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) ........................................................28

Roche v. Evaporated Milk Assn,

319 U.S. 21 (1943) ............................................................................................... 21

* Telecomms. Res. & Action Ctr. v. FCC,

750 F.2d 70 (D.C. Cir. 1984) ........................................................................ 26, 27

United States v. Allocco,

305 F.2d 704 (2d Cir. 1962) .................................................................................25

United States v. Mendoza,

464 U.S. 154 (1984) ............................................................................................. 24


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United States v. Woodley,

751 F.2d 1008 (9th Cir. 1985) ..............................................................................25

Wash. Metro. Area Transit Commn v. Holiday Tours, Inc.,

559 F.2d 841 (D.C. Cir. 1977) .............................................................................28

Will v. United States,

389 U.S. 90 (1967) ............................................................................................... 21

* Yablonski v. United Mine Workers of Am.,

454 F.2d 1036 (D.C. Cir. 1971) .................................................................... 22, 23

Constitutional ProvisionsU.S. Const. art. I, 5, cl. 4 .......................................................................................14

U.S. Const. art. II, 2, cl. 2 .....................................................................................13

U.S. Const. art. II, 2, cl. 3 .....................................................................................13

Statutes28 U.S.C. 1292 ......................................................................................................10

28 U.S.C. 1651 ........................................................................................................ 4

29 U.S.C. 153 ............................................................................................. 4, 11, 17

29 U.S.C. 154 ................................................................................................... 6, 15

* 29 U.S.C. 160 .......................................... 3, 4, 7, 8, 10, 15, 16, 17, 19, 20, 24, 26

Regulations And Rules* 29 C.F.R. 102.15 ................................................................................... 15, 16, 17

29 C.F.R. 102.17 ................................................................................................... 18

29 C.F.R. 102.19 ................................................................................................... 17

29 C.F.R. 102.23 ................................................................................................... 18


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29 C.F.R. 102.25 ................................................................................................... 18

29 C.F.R. 102.26 ................................................................................................... 18

29 C.F.R. 102.29 ................................................................................................... 18

29 C.F.R. 102.30 ................................................................................................... 18

29 C.F.R. 102.31 ................................................................................................... 18

29 C.F.R. 102.33 ................................................................................................... 18

29 C.F.R. 102.34 ................................................................................................... 18

29 C.F.R. 102.45 ................................................................................................... 18

* 29 C.F.R. 102.6 .................................................................................................. 18

Fed. R. App. P. 41 ....................................................................................................25

Sup. Ct. R. 23 ........................................................................................................... 25

Other Authorities112th Cong., 2011-2012 Congressional Directory (2011) ......................................20

157 Cong. Rec. S8783 (Dec. 17, 2011) ...................................................................14

158 Cong. Rec. S1 (Jan. 3, 2012) ............................................................................14

158 Cong. Rec. S3 (Jan. 6, 2012) ............................................................................14

20 Fed. Reg. 2175 (Apr. 6, 1955) ............................................................................ 16

66 Fed. Reg. 65,998 (Dec. 21, 2001) .......................................................................20

67 Fed. Reg. 70,628 (Nov. 25, 2002) ......................................................................20

76 Fed. Reg. 69,768 (Nov. 9, 2011)......................................................................... 20

77 Fed. Reg. 45,696 (2012) .....................................................................................16


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Costco Wholesale Corp.,

358 NLRB No. 106 (Sept.7, 2012) .......................................................................30

Ctr. for Soc. Change, Inc.,

358 NLRB No. 24, 2012 WL 1064641 (2012) ......................................................9

D.R. Horton,

357 NLRB No. 184 (Jan. 3, 2012) ....................................................................... 30

Executive PowerRecess Appointments,

33 Op. Atty Gen. 20 (1921) ................................................................................14

Marriot Intl, Inc.,

359 NLRB No. 8 (Sept. 28, 2012) ........................................................................ 30

NLRB, Board Members Since 1935,

http://www.nlrb.gov/who-we-are/board/board-members-1935 .............. 12, 13, 20

NLRB, Jim Paulsen named Regional Director in Brooklyn (Jan. 6, 2012),

http://www.nlrb.gov/news-outreach/announcements/jim-paulsen-named-regional-

director-brooklyn ..................................................................................................16

NLRB,Karen Fernbach named Regional Director in Manhattan (Jan. 6, 2012),

http://www.nlrb.gov/news-outreach/announcements/karen-fernbach-named-

regional-director-manhattan .................................................................................. 16

S. Journal, 112th Cong., 2d Sess. (2012) .................................................................14

Specialty Healthcare,

357 NLRB No. 83 (Aug. 26, 2011) ...................................................................... 30

Teamsters Local 75,

349 NLRB No. 77 (Jan. 26, 2007) ....................................................................... 27

WKYC-TV, Inc.,359 NLRB No. 30 (Dec. 12, 2012) ......................................................................30


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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, 2012, 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. Id. at

514. Two weeks ago, the Third Circuit echoed that conclusion, holding that the

Boards lack of authority dates back even earlier. See NLRB v. New Vista Nursing

& Rehab., __ F.3d __, 2013 WL 2099742, at *11-30 (3d Cir. May 16, 2013).

Yet by Boards lights, neither the absence of statutory authority enablingthe

Board to act nor the existence of judicial authorityforeclosingfurther action by the

Board poses any obstacle. It has brushed aside these challenges to its power in

other cases. See In re Geary, No. 13-1029 (D.C. Cir.);In re SFTC, LLC, 13-1048

(D.C. Cir.). And despite failing to seek, much less obtain, a stay inNoel Canning,

the Board boldly proclaims that its authority to act is undiminishedarrogating a

stay of the decision to itself without demonstrating that one is warranted.

The Boards 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 Boardabsent authorityinsists


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on regulating, among them petitioners CSC Holdings, LLC (CSC) and Cablevi-

sion Systems New York City Corp. (Cablevision) (collectively, the Compa-

nies). Disregarding this Courts precedent, the Board has issued unfair-labor-

practice 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 additionallitigation 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

Boards proceedings. And the costs spill over to the employees conscripted as

witnesses, to the judges that must adjudicate the ultra vires complaints, and ulti-

mately to the taxpayers, who must underwrite this spectacle.

Lacking any other recourse against the Boards overreaching, the Companies

seek a writ of mandamus or prohibition from this Court to halt the Boards illegal

actions.1 Controlling precedent already establishes that the agencys continued ac-

tions 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

1 The standards for issuing writs of mandamus and prohibition are virtually

identical,In re Sealed 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.


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all. Moreover, both the Board and its agents, including ALJs, are equally power-

less to adjudicate the dispute. It would be senseless and unfair to force private par-

ties 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 bur-

dens that the Boards actions thrust upon them. The Boards suggestion that par-

ties to its unlawful proceedings should litigate their challenge to the agencys au-

thority to act before the Board itself and only then come to court is decidedly Kaf-

kaesque: 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 em-

ployer could follow the Boards 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 govern-

ment. The Companies respectfully request that this Court issue a writ immediate-

ly. 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. 160(j), against CSC or Cablevision.


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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 author-

ity under the National Labor Relations Act, 29 U.S.C. 151 et seq.,see New Pro-

cess Steel, LP v. NLRB, 130 S. Ct. 2635, 2640, 2644-45 (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, 472-76 (D.C.

Cir. 2009), cert. denied, 130 S. Ct. 3498 (2010). This Court has held that the

Board has lacked a quorum since at least January 3, 2012. See Noel Canning v.

NLRB, 705 F.3d 490, 499-514 (D.C. Cir. 2013), petition for cert. filed, No. 12-

1281 (Apr. 25, 2013). The Board does not believe this Courts rulings constrain its

ability to act. See Bloomingdales, Inc., 359 NLRB No. 113, 2013 WL 1901335, at

*1 (2013). 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. 160(j) against the Companies?

STATEMENT OF FACTS

CSC provides telecommunications and media services to millions of cus-

tomers in the New York metropolitan area and the Western United States. CSC is


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headquartered in New York and employs over 17,000 employees. Cablevision is a

CSC subsidiary charged with field operations in New York.

In February 2012, the Board certified the Communication Workers of Amer-

ica, AFL-CIO (the Union) as the exclusive bargaining representative for 277

technician employees of Cablevision in Brooklyn, New York. Since then, Ca-

blevision and the Union have met regularly to negotiate an initial collective-

bargaining 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-085811 and 02-CA-090823 (the Bronx Case), the Union al-

leged 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-097013, 29-CA-097557, and 29-CA-100175 (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. 2-3.


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tional Labor Relations Act by engaging in surface bargaining and other acts that

interfered with covered employees exercise of rights protected by the Act.3

On behalf of the Board, Karen Fernbach, Regional Director for Region 2 of

the Board, issued an unfair-labor-practice complaint in the Bronx Case on April

17, 2013. 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 author-

ization from the Board to petition for injunctive relief in that case under Section

10(j) of the Act, Add. 29.4 A joint hearing for both cases has been scheduled be-

fore an Administrative Law Judge for July 8, 2013. 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. 37 (Consolidated Complaint).4 As discussed below,see infra at 15-16, the appointments of both Ms. Fernbach

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. Fernbach 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 10(j) of the Act, until the Board re-

gains a quorum of three lawfully appointed members. Add. 33, 51.


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(2) the petitioners 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. Govt of Belize,

668 F.3d 724, 729-30 (D.C. Cir.) (quoting Cheney v. Dist. Ct. for Dist. of Colum-

bia, 542 U.S. 367, 380-81 (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 Boards harmful and illegitimate proceedings. The Companies are clearly enti-

tled 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 au-

thority to act. They are powerless to issue complaints or decide cases. Mandamus

is plainly appropriate to halt the Boards defiance of this Courts clear commands,

and its attempt to evade this Courts prospective jurisdiction over Board actions,

see 29 U.S.C. 160(f). The Boards 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 OTHERREMEDY TO PREVENT THE BOARD ANDITS AGENTS FROM CONDUCTING UNLAWFUL PROCEEDINGS.

There can be no serious dispute that the Companies have no other ade-

quate 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,


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and to which they are legally entitled, is the cessation of the illegitimate proceed-

ings 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 Com-

panies cannot petition for review directly from non-final actions by the Board or its

agentsincluding the issuance of an unfair-labor-practice complaint, Respts

Opp. to Pet. for Mandamus 9, In re SFTC LLC, No. 13-1048 (D.C. Cir. Apr. 10.

2013) (SFTCOpp.), or the Acting General Counsels refusal to direct Board per-

sonnel 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 Boards 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 10(f), 29 U.S.C.

160(f). SFTCOpp. 15-16. But that supposed alternative deprives the Companies

of the very relief they seek: It would require them to expend massive resources lit-

igating before the agencyfirst taking part in a costly hearing before an ALJ, and

then pursuing appellate review by the Boardwhich is precisely the harm that the

Companies and other similarly situated litigants ought not suffer. Review after fur-

ther agency proceedings cannot afford the Companies the desired relief.


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Indeed, the Boards demand that litigants first challenge the agencys author-

ity to act before the Board is disingenuous. The Board has steadfastly refused to

entertain such challenges. Before this Courts ruling inNoel 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 1064641, at *1 (2012).

And sinceNoel Canning, the Board has simply rejected this Courts ruling, assert-

ing that the Board and its agents can continue acting because the January 2012 ap-

pointments validity remains in litigation, and other courts have taken different

views on the limits on recess appointments. Bloomingdales, Inc., 359 NLRB No.

113, 2013 WL 1901335, at *1 (2013). But see infra at 23-25.

Forcing litigants to press their claims before the agencyand requiring the

use of government resources to hear and contest those claimsthus would be fu-

tile. What is more, underNoel Canning, parties may assail the Boards 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 496-98; cf. Assn of Natl

Advertisers, Inc. v. FTC, 627 F.2d 1151, 1156-57 (D.C. Cir. 1979) (exhaustion

doctrine did not bar review of challenge to FTC Chairmans continued participa-

tion in proceedings). The Boards claim that review only after the agency litiga-


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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 ACLEARAND INDISPUTABLE RIGHT NOT TO FACEPROCEEDINGS THAT THE BOARDS AGENTS LACKPOWER TO CONDUCT.

The Companies are plainly entitled to mandamus relief to halt the Boards

unlawful proceedings because, under the Act and controlling precedent, those pro-

ceedings are ultra vires. The Supreme Courts and this Courts case law establish

that the Board itself, and any agent to whom the Board delegates its authority, can-

not 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 2644-45; Laurel Baye, 564 F.3d at 472-76. And this Court has

held that the Board has in fact lacked a quorum since at least January 3, 2012. See

Noel Canning, 705 F.3d at 499-514. 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 un-

der Section 10(j) of the Act, 29 U.S.C. 160(j), seeking preliminary-injunctive re-lief against the Companieswhich 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 infurtherburdensome litigation that the quorum-less

agency has no authority to initiate or prosecute.


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A. Neither The Board Nor Its Agents May Exercise The BoardsPowers 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. Sec-

tion 3(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 Boards membership falls below three lawfully ap-

pointed Members, the Board has no authority to act. See id. at 2644-45. Any ac-

tion it purports to take is void ab initio. Noel Canning, 705 F.3d at 493.

As this Court has further explained, the Boards loss of a quorum prevents

not only the Board itself from exercising authority under the Act, but also pre-

cludes anyone else from wielding that authority on the Boards behalf. See Laurel

Baye, 564 F.3d at 472-76. [B]asic tenets of agency and corporation law establish

that an agents delegated authority terminates when the powers belonging to the

entity that bestowed the authority are suspended or upon the resignation or ter-

mination 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 delegees authority to act on behalf of the

Board therefore ceased the moment the Boards membership dropped below its


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quorum requirement of three members.). The Board, in short, cannot by delegat-

ing its authority circumvent the statutory Board quorum requirement, because this

requirement must always be satisfied. Id.

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 is-

sue. 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 499-514. Until then, the Board pur-

portedly had three Members: Chairman Mark G. Pearce, and Members Brian

Hayes, whose term expired in December 2012, and Craig Becker. Id. at 498.7

Even assuming that Beckers appointment was valid,8 that putative appointment

expired, and the Board lost its quorum, when the Senates Session ended on Janu-

ary 3. See 705 F.3d at 512-14.

On January 4, the President attempted to restore the Boards quorum by

naming three new Members: Sharon Block, Terence F. Flynn, and Richard F.

7 See NLRB, Board Members Since 1935, http://www.nlrb.gov/who-we-are/board/board-members-1935 (all Internet materials last visited May 29, 2013).

8 Unlike Pearce and Hayes, who were confirmed by the Senate, Becker was sit-

ting pursuant to a recess appointment purportedly made in March 2010. See

New Vista, 2013 WL 2099742, at *6, *11. As the Third Circuit correctly held,

Beckers recess appointment was not valid. Id. at *30.


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13

Griffin. See Noel Canning, 705 F.3d at 498.9 But as this Court held inNoel Can-

ning, each of those appointments was invalid. Id. at 499-514. Article II of the

Constitution permits the President to appoint principal officers (which includes

Board Members) only with the Senates 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 Ses-

sion. Id. AsNoel Canningexplained, that Clause permits appointments only dur-

ing intersession recessesi.e., sine die adjournments between numbered Senate

Sessionsand only to vacancies that first arise during the recess in which the

appointment is made. 705 F.3d at 499-514.10 On January 4, 2012, however, the

Senate was notin the midst of an intersession recess, but an intrasession adjourn-

ment. See Noel Canning, 705 F.3dat 506. In any event, each of the vacancies

Block, Flynn, and Griffin filled did not arise during that break. Id. at 512-14. Be-

cause 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 Flynns appointment expired in July 2012. Board Members Since 1935,supra.10 The Third Circuit agreed that recess appointments are permissible only during

intersession recesses. See New Vista, 2013 WL 2099742, at *11-30. As Noel

Canningnoted, other circuits have interpreted the Clause differently, but this Court

specifically rejected their analyses and holdings. See 705 F.3d at 505-06, 509-12.


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514. Any actions by the Board (or its agents,see Laurel Baye, 564 F.3d at 472-76)

thus are void. Noel Canning, 705 F.3d at 514.11

B. The Commencement And Continued Conduct Of Unfair-Labor-Practice Proceedings By The Boards Agents Is Clearly Unlawful.

Because both the Board and its agents have been unable to exercise the

Boards statutory authority since January 3, 2012, its issuance of the unfair-labor-

practice 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 ALJs, have authority to oversee the litigation, or to

bring Section 10(j) litigation seeking an injunction.

11 Moreover, the Block, Flynn, and Griffin appointments were independently un-

lawful because on January 4, 2012, the Senate was not in Recess even by the Ex-

ecutives own longstanding definition. Since the Executive first claimed power tomake intrasession recess appointments of any kind, it has maintained that the Sen-

ate 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. 12-1281 (U.S. Apr.

25, 2013); Respondents Letter Brief 3, New Process Steel, 130 S. Ct. 2635;Exec-

utive PowerRecess Appointments, 33 Op. Atty Gen. 20, 24-25 (1921). The Sen-

ate, however, held sessions on both January 3 and 6, 2012. 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 2099742, at *19-20, those sessions cannot be discounted merely becausethe Senate described them as pro forma . . . with no business conducted, 157

Cong. Rec. S8783 (Dec. 17, 2011). The Senates determination that it was in ses-

sion is dispositive, and in any case it was unquestionably available to act on ap-

pointments or other matters at those sessions, just as it had during identical pro

forma sessions before January 4. New Vista, 2013 WL 2099742, at *12, *19.


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1. 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 Boards behalf. See Laurel Baye, 564 F.3d at 472-76.

The complaints are therefore void, Noel Canning, 705 F.3d at 514, and the pro-

ceedings that they instituted are unlawful.

The Regional Directors issuance of the complaints and their continued

prosecution of the administrative proceedings are independently unlawful, moreo-

ver, because the Regional Directors themselves were invalidly appointed. Both the

Act and longstanding Board policy establish that appointment of Regional Direc-

tors requires Board approval. See 29 U.S.C. 154(a); 20 Fed. Reg. 2175, 2176

12 29 C.F.R. 102.15 ([a]fter a charge has been filed, if it appears to the region-

al 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).


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16

(Apr. 6, 1955), as amended,see, e.g., 77 Fed. Reg. 45,696 (2012). The Board an-

nounced its appointments of Ms. Fernbach and Mr. Paulsen on January 6, 2012.13

But the Board had already ceased to have a quorum at least three days earlier, see

Noel Canning,705 F.3d at 499-514; in fact, the Board had lacked a quorum since

August 2011, see New Vista, 2013 WL 2099742, at *11-30. Both the Fernbach

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 Boards regulations (29 C.F.R. 102.15) 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 Bloomingdales, 2013 WL 1901335, at *1; SFTCOpp. 11-12.

That assertion is both incorrect and irrelevant.

13 See NLRB, Karen Fernbach named Regional Director in Manhattan (Jan. 6,

2012), http://www.nlrb.gov/news-outreach/announcements/karen-fernbach-named-

regional-director-manhattan; NLRB, Jim Paulsen named Regional Director in

Brooklyn (Jan. 6, 2012), http://www.nlrb.gov/news-outreach/announcements/jim-

paulsen-named-regional-director-brooklyn.


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17

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. 102.15. Section 3(d) itselfmakes clear, moreo-

ver, that whatever authority the General Counsel wields with respect to the prose-

cution 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 Con-

gress conferred explicitly on the Board,see id. 160(b), but merely allocated with-

in the Board to the General Counsel.14

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 notissue the

complaints in the Bronx and Brooklyn Cases. Each was issued instead by a Re-

gional Director, explicitly invoking the authority delegated exclusively to them un-

der 29 C.F.R. 102.15. Add. 1, 7, 13, 22.

14 The Boards regulations confirm this: They permit appeal[s] to the [G]eneral

[C]ounsel from decisions by Regional Directorsthe officers to whom the Board

has expressly delegated authority to issue complaints, 29 C.F.R. 102.15not to

issue unfair-labor-practice complaints in particular cases. See id. 102.19.


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18

c. In any event, whoeverissued 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 ALJs

recommendation. See Noel Canning, 705 F.3d at 493, 514. Any final ruling it is-

sues would be void ab initio. Id. at 493. The Board is equally powerless to ren-

der interlocutory rulings during the course of the litigation, as its own regulations

contemplate. See 29 C.F.R. 102.26. The Board thus is incapable of performing

its fundamental supervisory function in the proceedings it itself has commenced.

Just as importantly, no Board agentincluding an ALJmay conduct a

hearing or oversee litigation on the Boards behalf. An ALJ is the agent of the

Board, 29 C.F.R. 102.6, and wields authority to hold hearings, subpoena wit-

nesses, 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 472-76. It would be a truly bizarre system

of civil enforcement that permitted an officer to bring complaints and initiate pro-

ceedings notwithstanding the absence of any body to adjudicate such complaints.

The Board also has asserted in other cases that Congress intended to pre-

clude all judicial review of the General Counsels decisions to issue complaints or

15 See, e.g., 29 C.F.R. 102.17, .23, .25, .29, .30, .31, .33, .34, .45.


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19

not. SFTCOpp. 12-13 & n.11. But the case law the Board has invoked is con-

cerned with interference with the agencys prosecutorial discretioni.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 Boards or any other officials exercise of discre-

tion, but the agencys raw powerto 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 agencys 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 10(j).

For many of the same reasons that neither the Board nor its agents may initi-

ate or continue unfair-labor-practice litigation before the agency itself, they are

equally powerless to commence federal-court litigation seeking injunctive relief

under Section 10(j) of the Act, 29 U.S.C. 160(j)as the Board is considering do-

ing in the Brooklyn Case,see supra at 6. Section 10(j) 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


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before the agency. 29 U.S.C. 160(j). But neither the Board nor any delegee act-

ing for it may seek such relief while the Board lacks a quorum, see Laurel Baye,

564 F.3d at 472-76as it currently does,see Noel Canning, 705 F.3d at 499-514.

Moreover, the Boards alleged delegation of authority to the Acting General

Counsel to seek Section 10(j) 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 Boards then-Members, Craig

Becker, held office pursuant to an invalid recess appointment. See New Vista,

2013 WL 2099742, at *11-30.16 In any case, the November 2011 delegation was

invalid because, by its terms, it would take effect only afterthe Board lost a quor-

um 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 in-

deed 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 hasrelied. 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 ap-

pointments of Members Walsh, Hurtgen, Bartlett, and Cowen), with Joint Comm.

on Printing, 112th Cong., 2011-2012 Congressional Directory 535-36 (2011)

(showing dates of Senate sessions).


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21

ings against the Companies. Despite the Companies request, the agency has re-

fused to halt the proceedings. The Companies are clearly entitled to a writ direct-

ing the Board and all of its agents to suspend the unlawful litigation.

III. MANDAMUS IS APPROPRIATE TO ENFORCE THIS COURTS 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 Courts rulings

to be free of these unlawful proceedings, the Board has pressed on, defying this

Courts holdings that its actions in the absence of a quorum are void. Noel Can-

ning, 705 F.3d at 514. Mandamus is manifestly appropriate under the circum-

stances (Belize Soc. Dev. Ltd., 668 F.3d at 730 (quoting Cheney, 542 U.S. at

381)) to end the Boards open disobedience of this Courts directives and its una-

bashed usurpation of power. Will v. United States, 389 U.S. 90, 95 (1967). A

writ also is appropriate to prevent the Boards efforts to evade this Courts jurisdic-

tion 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 Boards Ongoing DefianceOf This Courts Rulings.

1. The mandamus relief the Companies seek falls squarely within the writs

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 ju-

risdiction. Roche v. Evaporated Milk Assn, 319 U.S. 21, 26 (1943). The array of


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22

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 courts 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. 1133 (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 contem-

plated by the prior decision. Id. 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 spiritof [the courts 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 relitiga-

tion of issues already decided. Yablonski, 454 F.2d at 1038.

The Boards unapologetic refusal to obey this Courts clear directives exem-

plifies the contumacy that the writ exists to police. As discussed above, this

Courts controlling precedent leaves no ambiguity about the Boards 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 add-

ed), cert. denied, 439 U.S. 980 (1978)18 City of Cleveland v. Fed. Power Commn, 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.

1971)) (emphasis added)


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thority under the Act. See Noel Canning, 705 F.3d 499-514; Laurel Baye, 564

F.3d at 472-76. 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 1042. That disobedience poses a severe threa[t] [to] the separation of

powers that amply justifies mandamus. Cheney, 542 U.S. at 381. Indeed, the

Boards action flouts not only this Courts authority and Congresss prescription of

the quorum requirement, but also the Senates 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 Boards compliance with the letter

[and] spirit of those rulings. Iowa Utils. Bd., 135 F.3d 542; City of Cleveland,

561 F.2d at 348.

2. 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 Courts decision pending further ap-

peal, the Board nevertheless claims the right to disregard it simply [b]ecause the

question of the validity of the Presidents recess appointments remains in litiga-


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tion, and other courts (addressing other appointments) have arrived at different

answers. SFTCOpp. 8-10, 20-21; cf. Bloomingdales, 2013 WL 1901335, 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(f), the Board can continue acting be-

cause it can seek enforcement of its orders elsewhere,see id. 160(e). See SFTC

Opp. 7, 19-21, 27. The Boards claim that its disagree[ment] with this Courts

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 ren-

dered on a particular legal issue. 464 U.S. at 160. That exception exists primarily

for the Supreme Courts benefit, to enable several courts of appeals to explore a

difficult question before [the Court] grants certiorari. Id. This rationale has no

application here. The premise of the agencys disregard ofthis Courts decisions is

that a split alreadyexists.19 Its reliance on other courts recess-appointments rul-

19 See Bloomingdales, 2013 WL 1901335, at *1; Pet. for Cert. 11-12, 23-24, 31,

Noel Canning, No. 12-1281.


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25

ingsnone of which involved the Board, or indeed any executive agency20to

evade a ruling from this Court to which it was a party is badly misplaced.

3. Indeed, by claiming an entitlement to ignore this Courts 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 require-

ments of a stay pending disposition of a petition for a writ of certiorariincluding

a likelihood of irreparable harm21are satisfied. Instead it has arrogated to

itself the power to decide when an Article III courts ruling shall take effect, seek-

ing to shift onto private parties the burden of proving such harm. The Boards

broad claim of power to delay the effect of judicial decisions with which it disa-

gree[s] is only further reason why its overreaching should be repudiated.

B. Mandamus Is Appropriate To Protect This Courts Jurisdiction.Mandamus also is appropriate to aid, and prevent evasion of, this Courts ju-

risdiction. 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, 705-06 (2d Cir. 1962).21 Conkright v. Frommert, 129 S. Ct. 1861, 1861-62 (2009) (Ginsburg, J., in

chambers);see also, e.g., Nara v. Frank, 494 F.3d 1132, 1133 (3d Cir. 2007).


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in this Court. See 29 U.S.C. 160(f). To be sure, the Courts 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 perfect-

ed . . . 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 un-

lawful proceedings that impose tremendous harms on private parties. The Court,

of course, can later declare the agencys actions illegal. But waiting until then

would preclude the Court from preventing the severe and unjustified consequences

of the Boards actions on unwilling litigants, and the attendant abuse of the public

fisc. And until the agencys ability to act is definitively adjudicated by an authori-

ty it is willing to recognize, the Companies will have no repose, at risk of facing

future complaints without a resolution of the Boards authority to bring them. Un-

til 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 79.

22 Telecomms. Res. & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 76 (D.C. Cir.

1984) (quotingFTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966)) (emphasis

added);see also In re City of New York, 607 F.3d 923, 939 (2d Cir. 2010).


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27

The Board elsewhere has suggested that a writ is nevertheless inappropriate

because review of final Board action or a Section 10(j) injunction might lie in an-

other 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 (re-

jecting argument that mandamus relief was inappropriate because 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 jurisdic-

tion supports an ultimatepower of review and extends to those cases which are

within its appellate jurisdiction although no appeal has been perfected. TRAC,

750 F.2d at 76 (citation omitted). The Boards reasoning would eviscerate this au-

thority, restricting the Court only to the issuance of writs in aid of jurisdiction al-

ready acquiredby appeal. Id. (emphasis added). This is not the law.24

C. Mandamus Would Avert Irreparable Harm To The CompaniesAnd 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., Respts Opp. to Pet. for Mandamus 12-13,In re Geary, No. 13-1029

(D.C. Cir. Mar. 25. 2013) (Geary Opp.).24 See, e.g., Teamsters Local 75, 349 NLRB No. 77, 84 (Jan. 26, 2007)

(Schaumber, dissenting) (noting Courts issuance of writ of mandamus to Board);

see also Iowa Utils. Bd., 135 F.3d at 542.


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28

question is whether the harms threatened by the Boards illegitimate activities are

sufficiently grave and irreparable to warrant mandamus relief. They are. Indeed,

the fact that the Boards continued action is premised on purported appointments

that this Court has held unconstitutional, see Noel Canning, 705 F.3d at 499-514,

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 litigat-

ing.25 Worse, if the Bronx and Brooklyn Cases are deemed nullities, the Compa-

nies may be forced to incur these costs a secondtime if the Board seeks to restart

the litigation and conduct a second trial once it regains a quorum.

25 See Wash. Metro. Area Transit Commn 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).


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29

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 de-

fendant from the necessity of a trial to establish the fact. Id. at 51-52. 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 Boards] proceed-

ings.Id. at 49. The proceedings must stop because this Court has determined that

the Board has no authority to prosecute them at alland 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 CanningandLaurel Baye. Forcing the Companies to litigate them again be-

fore the agency, which will not entertain them, before this Court can apply its con-

trolling case law would needlessly injure the Companies.

Nor are the harms confined to the Companies. The Boards action also

causes real harm to the corporations, unions, and employees affected by the ever-

increasing body of rules and decisions issued by the Board acting absent the safe-

guards of the National Labor Relations Act and Constitution. These rules and de-


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30

cisionsincluding hundreds issued afterNoel Canningare significant and, in

some cases, overturn decades of established precedent.26 Their effect on labor re-

lations 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 offic-

ers 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 Canningand Laurel Baye. See MCI Tele-

comms. Corp., 580 F.2d at 597. It is plainly appropriate to exercise that power

here to prevent further evasion of this Courts 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 re-

quest that their case be heard together withIn re Geary, No. 13-1029 (D.C. Cir.),

andIn re SFTC, LLC, 13-1048 (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 bargain-ing agreement);Marriot Intl, 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).


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Dated: May 30, 2013

Doreen S. DavisJONES DAY222 East 41 st StreetNew York, N.Y. 10017(212) 326-3833Jerome B. KauffKAUFF, MCGUIRE & MARGOLIS LLP950 Third Avenue14th FloorNew York, N.Y. 10022(212) 644-1010

Respectfully s u b m i t t e ~ , 0 1J1 d u t l l : j J / / ) ~ j ; ;Matthew D. McGillCounsel ofRecord

Eugene ScaliaGIBSON, DUNN & CRUTCHER LLP1050 Connecticut Avenue, N.W.Washington, D.C. 20036(202) [email protected]

Counsel for Petitioners CSC Holdings, LLC andCablevision Systems New York City Corp.

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CERTIFICATE OF PARTIES AND AMICI CURIAEPursuant to Circuit Rules 21(d) and 28(a)(I)(A), petitioners CSC Holdings,

LLC and Cablevision Systems New York City Corp. respectfully submit the fol-lowing certificate ofparties and amici curiae:

The parties to this petition for writ ofmandamus or prohibition are petition-ers CSC Holdings, LLC and Cablevision Systems New York City Corp.; the Na-tional Labor Relations Board; and Communications Workers of America, AFL-CIO, which is the charging party in both actions before the National Labor Rela-tions Board.

There currently are no intervenors or amici.

May 30, 2013 1/hd;c11!0i1/Matthew D. McGillCounsel for Petitioners CSC Holdings, LLCand Cablevision Systems New York CityCorp.


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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 Corpora-

tion. Cablevision Systems Corporation is a publicly held corporation organized in

Delaware with headquarters in Bethpage, New York. Cablevision Systems Corpo-

ration has no parent corporation. The following publicly held corporations own

10% or more of Cablevision Systems Corporations common stock: (1) Clear-

Bridge Investments LLC, and (2) T. Rowe Price Associates, Inc.


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ADDENDUM


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[Add. i]

ADDENDUM: TABLE OF CONTENTS

Page

Complaint, CSC Holdings, LLC & Cablevision Systems New

York City Corp., Nos. 02-CA-085811, 02-CA-090823(Apr. 17, 2013) ....................................................................................... Add. 1

Complaint, Cablevision Systems New York City Corp.,

Nos. 29-CA-097013, 29-CA-097557, 29-CA-100175

(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 SystemsNew York City Corp., Nos. 02-CA-085811, 02-CA-

090823; Cablevision Systems New York City Corp.,

Nos. 29-CA-097013, 29-CA-097557, 100175 ..................................... Add. 32

Letter from E. Scalia et al. to L. Solomon (May 21, 2013) ............................ Add. 33

Order Further Consolidating Cases, CSC Holdings, LLC & Ca-

blevision Systems New York City Corp., Nos. 02-CA-

085811, 02-CA-090823; Cablevision Systems New York

City Corp., Nos. 29-CA-097013, 29-CA-097557, 100175(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. 2 .................................................................. Add. 54

U.S. Const. art. II, 2, cl. 3 .................................................................. Add. 54

28 U.S.C. 1651(a) .............................................................................. Add. 54

29 U.S.C. 153(b), (d) ......................................................................... Add. 54

29 U.S.C. 154(a) ................................................................................ Add. 55

29 U.S.C. 160(b), (e), (f), (j) .............................................................. Add. 56


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[Add. ii]

29 C.F.R. 102.6 .................................................................................. Add. 58

29 C.F.R. 102.15 ................................................................................ Add. 59

29 C.F.R. 102.19 ................................................................................ Add. 59


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[Add. 1]

UNITED STATES OF AMERICABEFORE THE NATIONAL LABOR RELATIONS BO ARD

REGION 2CSC HOLDINGS, LLC andCABLEVISION SYSTEMSNEW YORK CITY CORP., as asingle employer

Respondentand

Case Nos. 02-CA-OB5Bll02-CA-090B23

COMMUNICATION WORKERS OF AMERICA,AFL-CIO

Charging Party

ORDER CONSOLIDATING CASES, CONSOLIDATED COMPLAINTAND NOTICE OF HEARING

Pursuant to Section 102.33 of the Rules and Regulations of the National Labor RelationsBoard (the Board) and to avoid unnecessary costs or delay, IT IS ORDERED THAT Cases 02-CA-OB5B11 and Case 02-CA-090B23, which are based on charges filed by Communication Workersof America, AFL-ClO, herein called the Union, against CSC Holdings, LLC and Cablevision SystemsNew York City Corp., as a single employer, herein called Respondent, are consolidated.

This Order Consolidating Cases, Consolidated Complaint and Notice of Hearing, which isbased 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 102.15 of the Board's Rules and Regulations, andalleges Respondent has violated the Act as described below:

1. (a) The charge in Case No. 02-CA-OB5B11 was filed by the Union on July 23,2012, and a copy was served by regular mail on Respondent on July 24,2012.

( b) The charge in Case No. 02-CA-090B23 was filed by the Union on October5, 2012, and a copy was served by regular mail on Respondent on October 10,2012.


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[Add. 2]

(c) An amended charge in Case No. 02-CA-090823 was filed by the Unionon November 16,2012, and a copy was served by regular mail on Respondent on November 19,2012.

(d) A second amended charge in this matter was filed by the Union onNovember 29, 2012, and a copy was served by regular mail on Respondent on December 4,2012.

2. (a) At material ' times CSC Holdings LLC, herein individually called CSCHoldings, has been a domestic corporation with an office and headquarters located at 1111Stewart Avenue, Bethpage, New York, engaged in various business enterprises, including theprovision of cable television and communications services in various parts of the United States.

(b) At material times Cablevision Systems New York City Corp., herein calledCablevision New York City, has been a domestic corporation with an office and place of businessat 500 Brush Avenue, Bronx New York, herein called the Bronx facility, engaged in providingbroadband 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 eachother; have interchanged personnel with each other; have interrelated operations with commonmanagement and have held themselves out to the public as a single-integrated businessenterprise.

(d) Based on its operations described above in subparagraph (c), CSC

2


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[Add. 3]

Holdings and Cablevision New York City constitute a single-integrated business enterprise and asingle employer within the meaning of the Act.

(e) Annually, in course and conduct oftheir business operations CSC Holdingsand Cablevision New York City separately and collectively derive revenues in excess of $500,000.

(f) Annually, in course and conduct of their business operations CSC Holdingsand Cablevision New York City separately and collectively purchase and receive at their facilitiesin New York State goods and services valued in excess of $5,000 directly from suppliers locatedoutside the State of New York.

3. At material times, Respondent has been an employer engaged in commerce withinthe 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 ofSection 2(5) of the Act.

5. At materia l times, the following individuals held the positions set forth opposite

their respective names and have been supervisors of Respondent within the meaning of Section2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act):

James L. DolanBarry Monopol iRichard HouseJohn LynnAndre DiazEwan IsaacsRandy Reed

3

Chief Executive OfficerVice President Field OperationsConstruction ManagerConstruction ManagerFiber Department SupervisorPlant Maintenance SupervisorConstruction Supervisor


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[Add. 4]

Winston Mcintosh Construction Supervisor

6. In or about April, 2012, the precise date being unknown to General Counsel, butwithin the knowledge of Respondent, the Employer, by Dolan, at ameeting of employees at theBronx facility:

a. Promised its 'employees improved wages and benefits;b. Promised its employees an improved system for registering their c o m p l a i n t s ~

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 collectivebargaining representative.

7. (a) On or about April 15, 2012, the Employer, by various methods, includinga power point presentation shown to employees at the Bronx facility and other locations notpresently known to General Counsel, but within the knowledge of Respondent, announced theimplementation of wage and benefit improvements.

(b) In or about May 2012, the exact date not presently known to GeneralCounsel, but within the knowledge of Respondent, Respondent implemented the first phase ofits wage and benefit improvements.

(c) Respondent engaged in conduct described above in subparagraphs(a) and (b) because certain employees of Respondent joined or supported the Union andengaged in concerted activities, and to discourage employees from engaging in these activities.

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[Add. 5]

8. On or about June 26, 2012, Respondent by Dolan, at a meeting of employees atthe Bronx facility impliedly threatened employees with the loss of opportunities for training, andadvancement and loss of work if they selected the Union as their collective-bargainingrepresentative.

9. By the conduct described above in paragraphs 6 through 8, Respondent has beeninterfering with, restraining, and coercing employees in the exercise of the rights guaranteed inSection 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 itsemployees, thereby discouraging membership in a labor organization in violation of Section8(a)(1) and (3) of the Act.

11. The unfair labor practices of Respondent described above affect commercewithin the meaning of Section 2(6) and (7) of the Act.

WHEREFORE as part of the remedy for the unfair labor practices alleged above inparagraphs 6 through 8, the General Counsel seeks an Order requiring that the Notice be read toemployees during working time by James L. Dolan.

Wherefore as part of the remedy for the unfair labor practices alleged above inparagraphs 6 through 8 General Counsel seeks an Order requiring that the notice be read atRespondent'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 .

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[Add. 6]

ANSWER REQUIREMENTRespondent is notified that, pursuant to Sections 102.20 and 102.21 of the Board's

Rules and Regulations, it must file an answer to the (consolidated) complaint. The answer mustbe received by this office on or before May 1. 2013. or postmarked on or before April 30.2013. Respondent should file an original and four copies of the answer with this office andserve a copy of the answer on each of the other parties.

An answer may, also be filed electronically through the Agency's website. To fileelectronically, go to www.nlrb.gov.click on File Case Documents, enter the NLRB Case Number,and follow the detailed instructions. The responsibility for the receipt and usability of theanswer rests exclusively upon the sender. Unless notification on the Agency's website informsusers that the Agency's E-Filing system is officially determined to be in technical failure becauseit 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 excusedon the basis that the transmission could not be accomplished because the Agency's website wasoff-line or unavailable for some other reason. The Board's Rules and Regulations require that ananswer be signed by counselor non-attorney representative for represented parties or by theparty if not represented. See Section 102.21. If the answer being filed electronically is a pdfdocument containing the required signature, no paper copies of the answer need to betransmitted to the Regional Office. However, if the electronic version of an answer to acomplaint is not a pdf file containing the required signature, then the E-filing rules require thatsuch answer containing the required signature continue to be submitted to the Regional Officeby traditional means within three (3) business days after the date of electronic filing. Service ofthe answer on each of the other parties must still be accomplished by means allowed under the

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[Add. 7]

Board's Rules and Regulations. The answer may not be filed by facsimile transmission. If noanswer is filed, or if an answer is filed untimely, the Board may find, pursuant to a Motion forDefault Judgment, that the allegations in the (consolidated) complaint are true.

NOTICE OF HEARINGPLEASE 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 consecutivedays thereafter until concluded, a hearing will be conducted before an administrative law judgeof 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 theattached Form NLRB-4668. The procedure to request a postponement of the hearing isdescribed in the attached Form NLRB-4338.

Dated this 17th day of AprilAt New York, New York ~ ~aren P. Fernbach, Regional DirectorNational Labor Relations BoardRegion 226 Federal Plaza

Room 3614New York, NY 10278

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[Add. 8]

FORM NLRB 4338(6-90)UNITED STATES GOVERNMENT

NATIONAL LABOR RELATIONS BOARDNOTICECase 02-CA-085811

The issuance of the notice of formal hearing in this case does not mean that the mattercannot be disposed of by agreement of the parties. On the contrary, it is the policy of this officeto encourage voluntary adjustments. The examiner or attorney assigned to the case will bepleased 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 tocancel the hearing. However, unless otherwise specifically ordered, the hearing will be held atthe date, hour, and place indicated. Postponements will not be granted unless good andsufficient 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 theRegional Director when appropriate under 29 CFR 102.1 6(a) or with the Division of

Judges when appropriate under 29 CFR 102.16(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 requestingparty 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 duringthe three days immediately preceding the date of hearing.ERIC CHANG, Director ofHuman ResourcesCABLEVISION SYSTEMS OF NEW YORKCITY CORPORATION500 BRUSH AVEBRONX, NY 10465-1803Peter Clark, ESQ.KAUFF MCGUIRE & MARGOLIS LLP950 Third Avenue14th FloorNew York, NY 10022


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[Add. 9]

TIMOTHY DUBNAUCOMMUNICATION WORKERS OFAMERICAWEISSMAN & MINTZ LLC9602-D MARTIN LUTHER KING JR.HIGHWAYLANHAM, MD 20706DANIEL E. CLIFTON, ESQ.LEWIS, CLIFTON & NIKOLAIDIS, P.C.350 7TH AVESTE 1800NEW YORK, NY 10001-5013MARY K. O'MELVENEY, GENERALCOUNSELCOMMUNICATIONS WORKERS OFAMERICA, AFL-CIO, CLC501 3RD ST., NW , SUITE 800WASHINGTON, DC 20001-2797GABRIELLE SEMEL, District CounselCOMMUNICATION WORKERS OFAMERICA, DISTRICT 1 - LEGALDEPARTMENT350 7TH AVEFL 18NEW YORK, NY 10001-5013


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[Add. 10]

NOTICEThe Complaint attached hereto alleges that the Respondent has violated certain

In Re CSC Holdings.cadc (13-1191).2013.05.30.Petition for Mandamus

Documents

Transcript of In Re CSC Holdings.cadc (13-1191).2013.05.30.Petition for Mandamus