Request For Special Permission To Appeal

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
McDONALD’S USA, LLC, A JOINT EMPLOYER,

et al.
Cases 02-CA-093893, et al.
and 04-CA-125567, et al.
FAST FOOD WORKERS COMMITTEE AND

SERVICE EMPLOYEES INTERNATIONAL
UNION, CTW, CLC, et al.
URGENT APPEAL FROM THE ADMINISTRATIVE LAW JUDGE’S

ORDER GRANTING PETITIONS TO REVOKE SUBPOENAS DUCES TECUM
AND ORDERS REGARDING PRODUCTION OF EXPERT’S REPORT
Table Of Contents
FACTS ........................................................................................................................................... 3
I. BACKGROUND .................................................................................................................. 3
II. THE ORDERS AT ISSUE ................................................................................................... 6
A. The Order Revoking McDonald’s August 2017 Subpoenas ......................................... 6
B. The Order Requiring McDonald’s to Produce an Expert Report .................................. 9
ARGUMENT ............................................................................................................................... 11
I. THE ALJ ORDER GRANTING THE PETITIONS TO REVOKE MCDONALD’S
AUGUST 2017 SUBPOENAS SHOULD BE REVERSED .............................................. 11
A. McDonald’s August 2017 Subpoenas Seek Evidence That Is Reasonably
Relevant To One Of The Company’s Defenses .......................................................... 11
B. The PWOC’s Petition To Revoke Was Untimely ....................................................... 15
C. The Court’s April 2015 Orders Do Not Encompass The Documents Sought By
McDonald’s August 2017 Subpoenas ......................................................................... 16
II. THE BOARD SHOULD REVERSE THE ALJ’S ORDER THAT MCDONALD’S
CREATE AND PRODUCE AN EXPERT REPORT ........................................................ 18
A. McDonald’s Complied With Established Board Practice By Providing Notice
Expert Testimony ........................................................................................................ 18
B. Board Practice Does Not Require An Expert Report In Addition To Notice.............. 19
C. The ALJ Erred In Requiring McDonald’s To Produce An Expert Report .................. 21
CONCLUSION ............................................................................................................................ 24
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TABLE OF AUTHORITIES
Page
CASES
AJ Servs. Joint Venture I, L.L.P,

2014 WL 772222 (N.L.R.B. Feb. 26, 2014) ............................................................................15
Bashas, Inc.,
352 NLRB 661 (2008) .............................................................................................................22
Berry v. City of Detroit,

25 F.3d 1342 (6th Cir. 1994) ...................................................................................................23
BFI Newby Island Recyclery,

362 NLRB No. 186, slip op. (Aug. 27, 2015)............................................................................3
BFI West Servs. LLC,

2016 WL 4773342 (N.L.R.B. Sept. 13, 2016) .........................................................................15
CNN America, Inc.,

361 NLRB No. 47 (Sep. 15, 2014) ............................................................................................4
Detroit Newspapers Agency,

326 NLRB 700 (1998), enf. denied on other grounds, 216 F.3d 109 (D.C. Cir.
2000) ........................................................................................................................................15
Int’l Banquet & Conf. Ctr.,

1997 WL 33316029 (Div. of Judges, Apr. 17, 1997) ........................................................19, 20
Kenrich Petrochemicals v. NLRB,

893 F.2d 1468 (3d Cir. 1990), cert. denied 498 U.S. 981 (1990) ............................................22
Love’s Barbecue Rest.,

245 NLRB 78 (1979) ...........................................................................................................3, 12
McDonald’s USA, LLC,

362 NLRB No. 168, slip op. (Aug. 14, 2015) (Miscimarra, dissenting) ...............................2, 4

363 NLRB No. 144, slip op. (Mar. 17, 2016) (Miscimarra, dissenting)....................2, 5, 12, 13
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TABLE OF AUTHORITIES
(continued)
Page

363 NLRB No. 91, slip op. (Jan. 8, 2016) (Miscimarra, dissenting) .........................................4

363 NLRB No. 92, slip op. (Jan. 8, 2016) (Misicmarra, dissenting) .....................................4, 5
Mengele v. Patriot II Shipping Corp.,

2002 WL 237847 (S.D.N.Y. Feb. 19, 2002) ............................................................................24
Nat’l. Extrusion Mfg. Co.,

357 NLRB 127 (2011) .................................................................................................18, 19, 21
Pacific 9 Transp., Inc.,

2015 WL 3643583 (NLRB June 11, 2015)..............................................................................22
Rainbow Coaches,
280 NLRB 166 (1986) .......................................................................................................19, 22
S.G. Tilden, Inc.,

172 NLRB 752 (1968) .............................................................................................................12
OTHER AUTHORITIES
29 FED. PRAC. & PROC. EVID. (2d ed.) (2017) ...............................................................................23
NLRB CASEHANDLING MANUAL § 10292.4 ............................................................................20, 22
NLRB DIV. OF JUDGES, BENCH BOOK (2016) ........................................................................ passim
RULES
Federal Rule of Civil Procedure 26 ....................................................................................... passim
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et al.
and 04-CA-125567, et al.

URGENT APPEAL FROM THE ADMINISTRATIVE LAW JUDGE’S

ORDER GRANTING PETITIONS TO REVOKE SUBPOENAS DUCES TECUM
AND ORDERS REGARDING PRODUCTION OF EXPERT’S REPORT
Since the inception of this matter, McDonald’s USA, LLC (“McDonald’s” or
“Company”) has expressed substantial concern that the novel and ever-evolving procedures
employed in the case have been slanted against the Company, jeopardizing its due process rights.
For example, and among many other things, the Administrative Law Judge (at the urging of the
General Counsel and over McDonald’s objection) permitted an unprecedented consolidation of
61 unfair labor practice charges involving 31 respondents from six states. That set the stage for a
years-long, multi-city trial, which (once it finally began) started with the General Counsel
adducing nearly 12 months of testimony related to his remedial arguments, all before he put on a
single witness related to the alleged merits of his underlying, substantive allegations.
Additionally, despite the size and scope of the hearing, the Judge permitted the General Counsel
to proceed on the basis of a Complaint that offered only the vague legal conclusion that
McDonald’s is a joint employer. The Complaint shed no light on the General Counsel’s actual
theory – in a case in which the General Counsel’s primary objective, apparently, is to radically
alter long-standing joint-employment law. Further, the Judge permitted the General Counsel to
delay this multi-year hearing for 13 months while he alone conducted vast, unprecedented
discovery, at a cost of over $2 million to McDonald’s. By contrast, the ALJ cut off the
Company’s ability to use established subpoena processes to gather evidence prior to the hearing,
effectively revoking the Company’s pre-trial subpoenas, which were directly related to a defense
(brand standards) that the Board has already ruled pertinent to this case.
For its part, the Company has repeatedly petitioned the Board for interlocutory relief with
respect to such matters. The Board, however, denied each of the Company’s prior special
appeals in a series of split decisions. And, perhaps as a result, the irregularities at trial have
multiplied, increasing the likelihood that a reviewing court may well conclude that “the entire
case must be dismissed” based on procedural deficiencies alone. McDonald’s USA, LLC, 362
NLRB No. 168, slip op. at *1 (Aug. 14, 2015) (Miscimarra, dissenting).
Against this backdrop, McDonald’s respectfully submits that it is past time for the Board
to put an end to the procedural irregularities that have plagued this case. See, e.g., McDonald’s
USA, LLC, 363 NLRB No. 144, slip op. at *11 (Mar. 17, 2016) (Miscimarra, dissenting) (noting
that the Act is “not intended to serve either party’s individual interest, but to foster in a neutral
manner a system in which the conflict between these interests may be resolved”) (quoting First
Nat’l. Maint. Corp. v. NLRB, 452 U.S. 666, 680 (1981)). Which, of course, brings us to the
Administrative Law Judge’s most recent orders. In them, the Judge: (a) once again stymied
McDonald’s ability to utilize the Board’s established subpoena process to gather evidence that
the Board itself has stated is relevant;1 and (b) instituted a newfound requirement that
McDonald’s provide the General Counsel with an expert report, notwithstanding the Judge’s
acknowledgement that McDonald’s complied with existing Board practice by providing
1
See Exhibit A, ALJ’s October 2, 2017 Order Granting Petitions to Revoke McDonald’s USA, LLC’s
Subpoenas Duces Tecum.
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extended advance notice of potential expert testimony.2 In other words, and yet again, the ALJ
granted the General Counsel an undeserved litigation advantage – discovery in the form of a
novel expert report requirement – while denying McDonald’s the ability to use the Board’s
existing subpoena procedures to develop relevant evidence.
The orders at issue are manifestly erroneous. They transparently favor the General
Counsel, and if not corrected now they threaten to further delegitimize the trial proceedings in
this case. The Board should reverse these orders, and it should do so with deliberate speed.
FACTS
I. BACKGROUND
At the heart of this case is the General Counsel’s quest to overturn decades of established
precedent – as well as settled expectations among franchisors, franchisees, and the public at large
– by obtaining a ruling that McDonald’s is a joint employer of certain franchisee employees.
Compare Love’s Barbecue Rest., 245 NLRB 78, 117 (1979) (rejecting the General Counsel’s
invitation to rewrite joint-employer law to “encompass a full analysis of the financial
relationship between franchisor and franchisee”).3 That is remarkable standing alone, but the
case is unprecedented in several other respects. For instance, to McDonald’s knowledge, it
involves the largest consolidation of unfair labor practice charges in the Board’s history. At its
high water mark, the case involved six NLRB Regions, 31 franchisees, 61 unfair labor practice
charges, and 181 alleged violations – none of which have any common link other than the
General Counsel’s claim that McDonald’s is a joint employer with each charged franchisee
2
See Exhibit B, ALJ’s September 5, 2017 Order Regarding Production of Expert’s Report; see also Exhibit
C, ALJ’s October 2, 2017 Supplemental Order Regarding Production of Expert’s Report.
3
The Board’s recent joint-employment decisions did not disturb Love’s Barbecue. See, e.g., BFI Newby
Island Recyclery, 362 NLRB No. 186, slip op. at *24 n. 120 (Aug. 27, 2015) (denying that the decision
“fundamentally alters the law” on franchisor-franchisee relationships, noting that “[n]one of those situations are
before us”).
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(although those charged franchisees are not alleged to be joint employers with one another).
Perhaps not surprisingly, the case is also one of the longest in the history of the Agency. To date
– i.e., before McDonald’s has put on a single witness – there have been 133 hearing days, 100
witnesses have testified, and the transcript is 19,473 pages long.4
Also remarkable – as McDonald’s is fully prepared to argue to the Court of Appeals, if
necessary – is the degree to which Board practice and procedure have been subverted to confer
litigation advantages to the General Counsel, often in derogation of the Company’s due process
rights. Cf. McDonald’s USA, LLC, 363 NLRB No. 92, slip op. at *3 (Jan. 8, 2016) (Misicmarra,
dissenting) (decrying the General Counsel’s position that “the separate Respondents do not even
have due process rights regarding joint-employer issues”). In the interest of brevity, McDonald’s
would refer the Board to the arguments the Company raised in its prior special appeals, but
would highlight the following:
Unprecedented Consolidation. The General Counsel’s massive consolidation of
disparate claims and parties, approved by the Administrative Law Judge, imposed
unnecessary burdens on Respondents and hindered their respective defenses. See
McDonald’s USA, LLC, 363 NLRB No. 91, slip op. at *6 (Jan. 8, 2016)
(Miscimarra, dissenting) (“I believe the aggregation of unconnected parties and
claims in this consolidated litigation will unavoidably prejudice the respondents
and deny them due process.”).
Unconstitutionally Vague Complaint. The Judge denied the Company’s Motion
for a Bill of Particulars, despite the General Counsel’s bare-bones joint-employer
4
By way of reference, CNN America, Inc., 361 NLRB No. 47 (Sep. 15, 2014) involved a mere 82 trial
days.
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allegations that failed basic notice pleading standards. See McDonald’s USA,
LLC, 362 NLRB No. 168, slip op. at *1 (Aug. 14, 2015) (Miscimarra, dissenting)
(noting that “[t]his denial presents an acute due process problem”).
Unprecedented, One-Sided Pre-Trial Discovery. The General Counsel’s massive
“trial subpoena” consisted of seven single-spaced pages of instructions, followed
by 118 separate demands for information. Compliance with the subpoena took
over 13 months, given the breadth of the necessary e-discovery. McDonald’s has
produced over 300,000 pages of documents and incurred approximately $2
million in costs from litigation support vendors alone. On the other hand, the
Judge largely precluded the Company from subpoenaing wholly relevant
documents prior to the hearing, using language that raised substantial question as
to whether the Court had prejudged the merits of certain McDonald’s defenses.
See McDonald’s USA, LLC, 363 NLRB No. 144, slip op. at *3 (Mar. 17, 2016)
(Miscimarra, dissenting) (arguing that the Judge “improperly preclude[d]
McDonald’s from obtaining documents that may support a . . . defense against
joint employer liability” and “appears to have prematurely rejected McDonald’s
‘brand protection’ defense on the merits”).
Inverted Trial Structure. The Judge required McDonald’s to defend itself against
the General Counsel’s nebulous joint-employment claim – which is ultimately a
remedial issue – before making a liability determination in the first instance. See
McDonald’s USA, LLC, 363 NLRB No. 92, slip op. at *2-4 (Jan. 8, 2016)
(Miscimarra, dissenting) (noting the highly problematic nature of the Case
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Management Order’s backwards presentation of evidence and encouraging of
certain Respondents to forgo active participation”).
II. THE ORDERS AT ISSUE
A. The Order Revoking McDonald’s August 2017 Subpoenas
The Orders at issue in this appeal follow the above-described pattern. In August 2017,
the Company served new subpoenas to the Charging Parties and New York Communities for
Change (“NYCC”), seeking documents to support its brand protection defense. (See Exhibit D,
McDonald’s August 2017 Subpoenas.)5 The SEIU, Kendall Fells (“Fells”), NYCC, and the Fast
Food Workers Committee (“FFWC”) filed petitions to revoke within five business days of
service, as permitted by Board practice. However, the Pennsylvania Workers Organizing
Committee (“PWOC”), which McDonald’s served on August 18, 2017,6 did not file a petition to
revoke until September 1, 2017, well outside the five-business-day deadline. In its untimely
petition, the PWOC baldly claimed that it “did not receive the subpoena until August 30, 2017.”
On October 2, 2017 the ALJ granted all of the petitions to revoke. (See Exh. A.) The
ALJ held that the new subpoenas were duplicative of the Company’s pre-trial subpoenas, and
therefore that the Court’s April 2015 Orders Granting Petitions to Revoke Subpoenas Duces
Tecum – which meaningfully revoked McDonald’s pre-hearing subpoenas – disposed of them.
(See id., at 5.)
For multiple reasons, however, the new subpoenas were not duplicative of the
Company’s May 2015 subpoenas. Fundamentally, the August 2017 subpoenas were narrowly
tailored to the types of evidence that the Judge has admitted in the case to date (leaving no
5
The subpoenas are compiled at Exhibit D. As the subpoenas’ requests are the same, citations to specific
subpoena requests within Exhibit D apply to the same request number within each of the subpoenas.
6
See Exhibit E, Affidavit of Service.
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question that they seek relevant evidence) and narrowly tailored to avoid what the ALJ (over
McDonald’s strenuous objection) found problematic with the Company’s pre-trial subpoenas.
Thus, on the one hand, each request in the new subpoenas identifies a specific portion of the
record that supports it. On the other, the 2017 subpoenas do not seek documents concerning the
internal affairs, operations, structure or finances of Charging Parties or NYCC, something the
ALJ took issue with in 2015.7
By way of comparison, then, the 2015 subpoenas contained 24 requests to FFWC, PWOC
and Fells and 34 requests to SEIU and NYCC. (See Exhibit H, McDonald’s 2015 Subpoenas to
SEIU, Fells, FFWC, PWOC, and NYCC.)8 The August 2017 subpoenas each contain just 14
requests. Paragraph One in the August 2017 subpoenas seeks only documents referring to
McDonald’s and that were provided to those working or present in a McDonald’s-branded
restaurant. (See Exh. D.) By contrast, Paragraph Four of the 2015 subpoenas sought documents
not limited to McDonald’s, and not limited to those provided to individuals working or present in
the McDonald’s-branded restaurant. (See Exh. H.) Similarly, Paragraph Two of the August
2017 subpoenas seeks documents and communications related to recruitment strategy directed at
persons working in McDonald’s-brand restaurants and includes specific tactics and incidents
about which there has been testimony in the case. (See Exh. D.) The 2015 subpoenas did not
request this information. Likewise, Paragraph Three of the August 2017 subpoenas is
significantly narrowed from Paragraph 25 of the 2015 subpoenas. (Id.) And Paragraph Four of
7
See Exhibit F, ALJ’s April 9, 2015 Order Granting and Denying in Part the Petitions to Revoke
McDonald’s USA, LLC’s Subpoenas Duces Tecum Served Upon the Charging Parties and Kendall Fells, at 5;
Exhibit G, ALJ’s Apr. 9, 2015 Order Granting the Petitions to Revoke McDonald’s USA, LLC’s Subpoenas Duces
Tecum Served Upon Mintz Group, LLC, LR Hodges & Associates, Ltd., Berlin Rosen, Ltd., and New York
Communities for Change, Inc., at 1.
8
The 2015 subpoenas are compiled behind a single exhibit number. As the subpoenas’ requests at issue are
the same, citations to specific subpoena requests within Exhibit H apply to the same request number within each of
the subpoenas.
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the August 2017 subpoenas seeks only documents concerning strikes and work stoppages
involving individuals who worked at a McDonald’s-branded restaurant. (Id.) The 2015
subpoenas, by contrast, sought similar information concerning all persons, not just those who
worked at a McDonald’s-brand restaurant.9 Further, Paragraphs Five and Six of the August 2017
subpoenas seek information concerning specific incidents that were referred to in testimony
admitted into the record and consequently could not have been, and were not, part of the 2015
pre-trial subpoenas. (Id.) Paragraphs Seven, Eight, Nine, and Ten of the August 2017 subpoenas
are also specifically targeted to testimony and exhibits introduced in the case concerning actions
taken by the Charging Parties against McDonald’s during the corporate campaign. The 2015
pre-trial subpoenas did not seek this specific information. (Id.) And Paragraphs 11 and 12 of the
August 2017 subpoenas seek documents only concerning activity directed at McDonald’s-
branded restaurants, not regarding the Fight for 15 campaign generally. (Id.)
Moreover, the new subpoenas were more narrowly tailored in terms of their recipients.
McDonald’s served the August 2017 subpoenas only on the Charging Parties in the New York
and Philadelphia consolidated case, not on the Charging Parties in the cases severed and held in
abeyance. Also, in 2017, McDonald’s served only one “third party”,10 NYCC, while the
Company served five third parties in 2015. Further, the temporal scope of the August 2017
subpoenas has been narrowed to 2012-2014. The ALJ (again, over McDonald’s repeated
9
Compare Paragraph 27 of Exh. H with Paragraph 4 of Exh. D.
10
The NYCC is a “third party” in name only. According to published reports, for example, NYCC and
SEIU devised the on-going campaign against the McDonald’s brand. See Ilya Marritz, Unhappy Meal: How the
Fast Food Worker Movement Began, WNYC NEWS (Mar. 18, 2014), http://www.wnyc.org/story/how-fast-food-
worker-movement-began/ (noting that NYCC reached out to the SEIU in 2012 to begin the campaign targeting
McDonald’s). Moreover, since 2012, the SEIU has provided significant financial compensation to NYCC, including
$2.5 million in 2012 and nearly another $1 million in 2013. See id. Further, two of the individuals who have
accused charged franchisees with substantive violations are employees of NYCC. (See Exhibit I, Compilation of
Transcript Cites, at Tr. 13680 (testimony of Jose Caraballo); Tr. 14158 (testimony of Ben Shapiro).) One of them in
turn conceded that the SEIU and NYCC are partners. (See Exh. I, at Tr. 14180 (Shapiro) (noting that the “SEIU and
NYCC partnered up on the campaign”).)
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objections) has ruled that 2012-2014 is the time period relevant to this case. And the August
2017 subpoenas contain an instruction (Instruction X), clarifying that none of the new subpoenas’
requests seek the names of employees who may have engaged in protected concerted activity.
This clarification is in response to the ALJ’s 2015 ruling, in which the Judge took issue with the
fact that while some paragraphs of the 2015 pre-trial subpoenas specifically stated that the names
should not be disclosed, other paragraphs did not contain that express limitation.11
B. The Order Requiring McDonald’s to Produce an Expert Report
On July 28, 2017, McDonald’s – in keeping with practice in Board proceedings –
provided notice to the General Counsel that it may call Professor Chekitan Dev12 to provide
expert testimony during the Company’s affirmative case. (See Exhibit J, July 28, 2017 Letter
from W. Goldsmith to J. Rucker.) As the ALJ ultimately acknowledged, with this notice
McDonald’s complied with its obligations under existing Board practice. (See Exh. B, at 5-6.)
Not satisfied with mere notice, however, the General Counsel demanded that McDonald’s also
create and furnish the Agency with an expert report. As the ALJ also acknowledged, the Board
has never ordered a party to create and produce an expert report, which is hardly surprising since
the Board’s Rules and Regulations “do not provide for . . . pre-trial discovery.” (See id.)
Nevertheless, on September 5, 2017, the ALJ ordered McDonald’s to create and produce
such a report “in the form described in Federal Rule of Civil Procedure 26(a)(2)(B).” (Id.) The
Judge ordered McDonald’s to produce this report both to the Court and to all other parties 30
days in advance of the anticipated date on which an expert would testify. (See id. at 1, 8.) Such
a report, the Judge stated, would “facilitate the parties’ cross-examination of Professor Dev,” as
11
See Exh. F, at 7.
12
Professor Dev is a Professor of Strategic Marketing and Brand Management at the Cornell University
School of Hotel Administration.
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well as assist her “in understanding Professor Dev’s area of expertise in general, as well as his
specific opinion.” (Id. at 8.)13
Following the ALJ’s September 5, 2017 Order, the Company filed a Motion for
Reconsideration. This Motion reserved McDonald’s right to file a special appeal, but requested
that the ALJ rescind her Order or, barring that, modify the order substantially so that it more
closely comports with federal practice and norms of basic fairness. (See Exhibit K, McDonald’s
USA, LLC’s Motion for Reconsideration of the ALJ’s Order Regarding Production of Expert
Report.) Astoundingly, for example, the Judge’s initial order required only McDonald’s to
produce an expert report. (See Exh. B, at 4.) Thus, in its Motion, McDonald’s requested that if
the Judge’s Order were not withdrawn (although it should be withdrawn), it be made applicable
to all parties – including the General Counsel, if he chooses to call a rebuttal expert. (Exh. K, at
2.) Further, McDonald’s requested that the ALJ order the General Counsel to designate any
rebuttal expert within 30 days of a revised order (given that McDonald’s had already notified the
General Counsel of Prof. Dev’s potential testimony) and provide his own expert report within 30
days of McDonald’s service of its report (which is the requirement in federal courts under
FED.R.CIV.P. 26(a)(2)(D). (Exh. K, at 3-4.)
On October 2, 2017, the ALJ granted McDonald’s Motion in part and denied the Motion
in part – largely tracking what the General Counsel asked for in his partial opposition.14 In
13
Due to the unpredictable nature of when witnesses will finish their direct testimony, and when the
General Counsel will complete his cross-examination, the 30 day requirement is impracticable.
14
In his limited opposition, the General Counsel did not oppose the Company’s request that other parties
seeking to use expert testimony identify their experts and produce an expert report meeting the requirements of
FED.R.CIV.P. 26(a)(2)(B). Rather, the General Counsel opposed McDonald’s requested timeline for disclosure, its
request that no party provide an expert report to the ALJ, that the ALJ determine the admissibility of expert
testimony solely on the basis of live testimony, and that no party’s expert report be admitted to evidence. (See
Exhibit L, General Counsel’s Limited Opposition to McDonald’s USA, LLC’s Motion for Reconsideration (Sep. 18,
2017).)
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particular, the ALJ agreed that the General Counsel indeed would need to produce his own
expert report if he chose to use a rebuttal expert, but indicated that he would not need to disclose
the identity of his expert witness or produce an expert report until 30 days after receiving
McDonald’s expert report. (Exh. C, at 3-4.)
ARGUMENT
I. THE ALJ ORDER GRANTING THE PETITIONS TO REVOKE MCDONALD’S
AUGUST 2017 SUBPOENAS SHOULD BE REVERSED
In the Order quashing McDonald’s August 2017 Subpoenas, the ALJ ruled that the
subpoenas were duplicative of the subpoenas served by the Company in the Spring of 2015,
declined to revisit whether the documents sought by the Company are relevant to its defense,
rejected the Company’s arguments that the evolving posture of the case supported new
subpoenas, and impermissibly used her discretion to disregard the Board’s five-business-day
time limit for petitioning to revoke a subpoena.
A. McDonald’s August 2017 Subpoenas Seek Evidence That Is Reasonably Relevant

To One Of The Company’s Defenses
A party may use subpoenas to “require the…production of any evidence, including books,
records, correspondence, electronic data, or documents.” NLRB Rules and Regulations
§102.31(a). Subpoenaed information must be produced if it is “reasonably relevant” – i.e., if it
“relates to any matter in question, or if it can provide background information or lead to other
evidence potentially relevant to an allegation in the complaint.” See Bench Book § 8-310 (citing
NLRB Rules and Regulations §102.31(b) and Perdue Farms, 323 NLRB 345, 348 (1997)).
While an entity subject to a subpoena may seek its revocation, that entity may succeed only upon
a showing that the subpoena is vague, overbroad, or that production would be unduly
burdensome. See id. § 8-320 – 8-300.
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McDonald’s subpoenas seek evidence “reasonably relevant” to an element of the
Company’s defense to one of the General Counsel’s main allegations in the case – that
McDonald’s is a joint employer because it “coordinated or directed the conduct of Respondent
Franchisees in response to employees’ protected union activities.” BENCH BOOK § 8-310; 363
NLRB No. 144, slip op. at *1. McDonald’s response to this allegation is two-fold. Id. First, the
Company did not coordinate any franchisee’s response to protected union activities. See id.
Second – and necessitating information requested in the subpoenas – the Company argues that
even if the General Counsel could establish that McDonald’s took such actions, those actions
were in response to what it reasonably perceived to be, and what in actuality was, a coordinated
attack on its brand that involved, among many other things, violence, intentional disruption of
customer service, and generalized attacks on public goodwill. See id.
Previously the ALJ seemingly rejected the Company’s brand-protection defense,15 and
the ALJ now simply asserts that she sees “no reason to revisit this issue now.” (Exh. A, at 8.)
There can be no serious dispute that McDonald’s has the right to present this brand-protection
defense. See id. at *1, *2 n. 2 (concluding that “[n]othing . . . prevents McDonald’s from
presenting its brand protection defense”) (italics omitted); see also Love’s Barbeque Rest., 245
NLRB at 121 (1979) (franchisor not a joint employer where the “only control” that the franchisor
exercised over the franchisee was “that necessary to ensure . . . goodwill of the integrated
enterprise of which [the franchisee] is a part”); S.G. Tilden, Inc., 172 NLRB 752, 753 (1968)
(finding that franchisor was not a joint employer though it regulated “many elements of the
business relationship,” where there was no evidence that it “intended to, or in fact did, exercise
direct control over the labor relations” of the franchisee).
15
See id. (Miscimarra, dissenting).
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Concomitantly, it is beyond dispute that evidence tending to show the subpoenaed
entities and their allies were actually engaged in a brand attack renders it “more probable” that
McDonald’s belief its brand was under attack was reasonable. Fed.R.Evid. 401(a); see also
McDonald’s USA, LLC, 363 NLRB No. 144, at *1 (“The premise underlying McDonald’s
proposed brand protection defense is that it took certain actions to protect its brand in response to
what it reasonably perceived was an attack on its brand . . .”) (italics omitted). Thus, evidence of
such actions – as well as the subpoenaed entities’ designs and plans for such actions – is clearly
relevant to the brand-protection defense. Unsurprisingly, then, the ALJ has routinely allowed the
introduction of evidence pertaining to tactics implemented by the subpoenaed entities. For
example, the ALJ has admitted:
Evidence regarding Days of Action, during which participants frequently engaged in

unlawful activity including forming “human chain[s]” to block roads and blocking
drive-thrus. (See, e.g., Exhibit M, Trial Exhibit HR.129.)
Evidence regarding incidents in New York during which dozens of individuals

stormed stores, banged on windows, and harassed customers, McDonald’s employees,
and Owner/Operators. (See, e.g., Exh. I, at Tr. 5569, 6632).
Evidence regarding other SEIU-sponsored incidents in which individuals blocked

traffic, pounded on car hoods, blocked entrances to McDonald’s-branded stores,
stormed McDonald’s-branded stores and climbed on counters and damaged property,
harassed customers, physically pushed a McDonald’s Owner/Operator and his family
member, and intentionally sought to be arrested. (See, e.g., Exhibit N, Trial Exhibit
HR.358; Exh. I, at Tr. 3498.)
Evidence regarding SEIU/NYCC officials offering franchisee employees money to be

arrested during protests, and protestors being arrested. (See, e.g., Exhibit O, Trial
Exhibit HR.239; Exh. N; Exhibit P, Trial Exhibit BC.2312 at 66-67.)
Evidence regarding instigators who, when prevented from entering a McDonald’s-

branded store, forced entry through a side-door, causing an individual in the store to
fall down stairs and break his foot. (See Exh. I, at Tr. 9790.)
Evidence regarding individuals entering McOpCo stores and/or premises and

disrupting business by blocking parking lots and drive-thrus, and paying for orders in
pennies. (See Exhibit Q, Trial Exhibit HR.856.)
-13-
(See also Exhibit R, Chart of Evidence Cited in August 17, 2017 Subpoena on NYCC.)
It is clear that the August 2017 subpoenas are aimed at adducing additional, necessary
evidence allowing McDonald’s to fully prosecute its brand-protection defense. The subpoena
requests – even more circumscribed than the already-reasonable requests denied in 2015 –
directly relate to the subpoenaed entities’ planning and execution of their brand attack, such as:
Documents related to actual or potential demonstration strategy for corporate

campaign activity at or near McDonald’s stores, including, but not limited to,
blocking traffic by forming human chains, blocking store entrances, storming stores,
climbing on store property, damaging store property, and paying for orders with
pennies. (See Exh. D, at Request(s) No. 5.)
Documents related to demonstration strategy regarding how to interact with restaurant

customers, security, crew, and/or managers, including, but not limited to, blocking
customers or workers in or around McDonald’s stores. (See id., at Request(s) No. 6.)
Documents related to applying financial pressure to or causing disruptions to the

business of McDonald’s stores. (See id., at Request(s) No. 8.)
Documents related to actual protestor interactions with restaurant customers, crew,

and other persons, including, but not limited to, confronting customers, employees
and/or Owner/Operators. (See id., at Request(s) No. 9.)
Documents related to assault, battery, or physical injuries inflicted on persons during

or in furtherance of corporate campaign activities. (See id., at Request(s) No. 10.)
Documents related to any payments or reimbursement made to persons to participate

in corporate campaign activity at or near McDonald’s stores, including, but not
limited to, payments to protest or get arrested. (See id., at Request(s) No. 3.)
As a matter of settled Board law – not to mention fundamental fairness and notions of due
process – the August 2017 subpoenas are valid, enforceable and necessary to McDonald’s
defense.
-14-
B. The PWOC’s Petition To Revoke Was Untimely
In a footnote, the ALJ also summarily rejected the Company’s correct argument that the
PWOC’s petition to revoke was untimely.16 (Exh. A, at 6 n. 2.) The ALJ provided no basis for
her decision in this regard other than saying that the cases cited by McDonald’s did not involve
the identical service issues. (Id.) (affording undue and inexplicable credulity to the PWOC’s
explanation that it “did not receive the Subpoena until August 30, 2017, and it filed the Petition
to Revoke the next day.”) Of course, the ALJ has no discretion to ignore the Board’s five-day
rule for petitions to revoke subpoenas. See Detroit Newspapers Agency, 326 NLRB 700, 751 n.
25 (1998), enf. denied on other grounds, 216 F.3d 109 (D.C. Cir. 2000).
McDonald’s validly served PWOC with Subpoena Duces Tecum No. B-1-XN3JUX on
August 18, 2017. See BENCH BOOK § 8-120 (citing NLRB Rules & Regs. § 102.113(c))
(providing that subpoenaed entities may be served “personally,” “or by leaving a copy [of the
subpoena] at the principal office or place of business” of the entity). The Company used NJLS
Process Service to deliver a copy of its subpoena to PWOC, care of SEIU Local 32BJ, at 1515
Market Street, Suite 1000, Philadelphia, PA 19102. (See Exh. E.) PWOC has confirmed in
multiple filings this is its proper address and how deliveries should be made to it.17 (See, e.g.,
16
NLRB Rules and Regulations provide that if an entity intends to refuse to comply with a subpoena, it
must file a petition to revoke “within 5 business days after the date of service.” NLRB Rules and Regulations
§ 102.31(b). Failure to timely file is fatal to a petition to revoke. See, e.g., Orange County Inc., 2016 WL 7430425,
at *1 (denying petitions as “untimely” because they were not filed within five days); BFI West Servs. LLC, 2016 WL
4773342, at *1 (N.L.R.B. Sept. 13, 2016) (same); AJ Servs. Joint Venture I, L.L.P, 2014 WL 772222, at *1
(N.L.R.B. Feb. 26, 2014) (same). An administrative law judge is without discretion to extend this deadline. See
NLRB Div. of Judges, BENCH BOOK: AN NLRB TRIAL MANUAL § 8-220 (2016) (hereinafter “BENCH BOOK”)
(noting that “judge abused his discretion” in granting petition where respondent “did not file a . . . petition to revoke
within 5 days”).
17
For purposes of both Subpoena Duces Tecum No. B-1-XN3JUX and this paper, McDonald’s assumes
arguendo that there is some meaningful distinction between PWOC and the SEIU. Should the SEIU and PWOC
(such as it is) care to affirm what seems likely – that PWOC is a cat’s paw organization, legally indistinct from the
SEIU – McDonald’s is willing to withdraw Subpoena Duces Tecum No. B-1-XN3JUX and instead enforce
Subpoena Duces Tecum No. B-1-XN3A5H against the SEIU and its various incarnations.
-15-
Exhibit S, Service List in Case No. 04-CA-147314, Chipotle Services LLC (open case in which
PWOC listed its address as “1515 Market Street Suite 1000” and indicated that deliveries should
be sent care of “Local 32 BJ”); Exhibit T, Service List in Case No. 04-CA-146147, Micale
Family LP d/b/a McDonald’s (case closed on August 7, 2017 as withdrawn, non-adjusted in
which PWOC listed the 1515 Market Street address and indicated that deliveries should be sent
care of SEIU Local 32BJ); Exhibit U, Service List in Case No. 04-CA-149930, McDonalds’s of
Woodland Avenue, Rupinder Singh Franchisee d/b/a McDonald’s (same as Case No. 04-CA-
146147).)18 For its part, PWOC offered no affidavit, declaration, or any evidence supporting its
assertion that it did not receive the subpoena until August 30, 2017 – or any statement at all as to
how it eventually received the subpoena. The ALJ’s acceptance of PWOC’s explanation –
particularly in light of the evidence offered by McDonald’s supporting its position – defies
reason.
McDonald’s properly served PWOC on August 18, 2017. Therefore, PWOC’s Petition to
Revoke was due on August 25, 2017. NLRB Rules and Regulations § 102.31(b). PWOC did not
file its Petition to Revoke until September 1, 2017. The Petition is five days late, and the ALJ
should have dismissed it for that reason. See, e.g., Orange County Inc., 2016 WL 7430425 at *1.
C. The Court’s April 2015 Orders Do Not Encompass The Documents Sought By
McDonald’s August 2017 Subpoenas
The ALJ held that the 2017 subpoenas issued by the Company are duplicative of its 2015
subpoenas, and therefore encompassed by the Court’s April 2015 orders granting petitions to
revoke the Company’s subpoenas. However, the 2017 subpoenas are substantially more limited
18
Other publically available information likewise confirms SEIU Local 32BJ’s offices constitute PWOC’s
principal place of business. (See Exhibit V, Compilation of Social Media Posts.) It is hardly surprising, then, that
PWOC’s belated Petition to Revoke mimics that of the SEIU.
-16-
than the broader 2015 subpoenas, and therefore are not duplicative or encompassed by the
previous orders.
The August 2017 subpoenas are more closely tailored to the Board-recognized elements
of the Company’s brand-protection defense. As a preliminary matter, the subpoenas were only
issued to five entities (including one third party, NYCC), and have not been served on the
Charging Parties in the cases severed or held in abeyance. The August 2017 subpoenas also
cover a more narrow temporal scope. (Compare Exh. D with Exh. H.)
The actual requests are far more circumscribed. The August 17, 2017 subpoenas do not
seek information regarding Charging Parties, Fells’ or NYCC’s organizational structure or
finances, or generalized information about how they may undertake a traditional organizing
campaign. (Compare Exh. H, at Request Nos. 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19,
20, 24, 25, 26, 30.) The August 2017 subpoenas do not ask the recipients to produce wide-
ranging “[d]ocuments reflecting communications with any Charging Party and/or the SEIU
discussing . . . McDonald’s . . . and/or the allegations in the Consolidated Complaint.” (Id. at
Request No. 4.) Likewise, the Company does not ask the recipients to produce “[d]ocuments,
including manuals, toolboxes, instructions, or memoranda concerning . . . and tactics to use in
obtaining card-check agreements” (id. at Request No. 9) or “[d]ocuments showing any funding,
corporate or other relationship between [NYCC] and any Charging Party and/or the SEIU.” (Id.
at Request No. 20.) Instead, as noted, McDonald’s August 2017 subpoenas only seek
information specific to the actions and design of the campaign against the McDonald’s brand.
(See, e.g., Exh. D, at Request(s) No. 5 (seeking “demonstration strategy, actions, or guidelines to
be used in Corporate Campaign activity at or near any McDonald’s-Brand Restaurant or
McDonald’s Corporation headquarters, including but not limited to . . . documents . . . reflecting
-17-
chanting, blocking traffic such as by . . . forming a human chain, blocking driveways, blocking
drive-thru lanes . . . storming a restaurant . . . paying for orders with pennies, pounding on menu
boards . . . smashing tables . . . .”).)
The Company’s 2017 subpoenas have been drafted specifically to avoid many of the
issues that led the ALJ to largely revoke the 2015 subpoenas, and are therefore not duplicative of
the prior subpoenas. As established above, the information sought by the Company’s 2017
subpoenas is more than “reasonably relevant” – rather, it is directly relevant to the Company’s
brand-protection defense. The Board should reverse the ALJ, and order compliance with the
subpoenas in their entirety.
II. THE BOARD SHOULD REVERSE THE ALJ’S ORDER THAT MCDONALD’S
CREATE AND PRODUCE AN EXPERT REPORT
With respect to the expert issue, the ALJ acknowledges (Exh. B, at 5) McDonald’s fully
complied with existing Board practice by providing opposing parties with advance notice of Dr.
Dev’s potential testimony. The Judge’s imposition that McDonald’s additionally create and
produce an expert report was plain error, and it grants the General Counsel yet another litigation
advantage to which he is not entitled.
A. McDonald’s Complied With Established Board Practice By Providing Notice Of

Expert Testimony
To be sure, Board practice provides for expert testimony. See DIV. OF JUDGES, BENCH
BOOK § 16-700 et seq. (2016). Further, while it generally prohibits discovery, Board practice
accounts for the possibility that an effective response to expert testimony may require more
preparation than a response to fact witness testimony. For this reason, NLRB litigants who wish
to use experts are expected to provide “[p]rior notice.” Id. at § 16-702.2; see also Nat’l.
Extrusion Mfg., 357 NLRB 127, 155 n. 29 (2011) (purpose of “advance notice” is to allow
opponent to “effectively cross examine the witness” or “line up a rebuttal witness without
-18-
significant delay and disruption to the trial schedule”). This is a notable and limited exception to
the rule that there is no exchange of witness lists in Board cases. Id. at § 7-200; see also Nat’l
Extrusion & Mfg. Co., 357 NLRB at 154-55 n. 29 (largely disallowing expert testimony for
failure to provide “advance notice”); Bozzutos, Inc., 2011 WL 3932756, at *10 (NLRB Div. of
Judges, June 25, 2015) (disallowing expert testimony for failure to provide notice, “despite the
fact that there was a substantial hiatus between the opening of the case and its resumption.”).
McDonald’s fully complied with this expectation of prior notice. See, e.g., Int’l Banquet
& Conf. Ctr., 1997 WL 33316029, at *11 (Div. of Judges, Apr. 17, 1997) (expert “permitted to
testify” where the employer “put the General Counsel on notice” with a letter stating it had
“retained the services of…a local polygraph examiner who is frequently retained by the FBI.”).
Via letter dated July 28, 2017, McDonald’s provided the General Counsel and Charging Parties
with notice of its retention of Professor Dev, as well as the possibility the Company would call
him to testify. (See Exh. J.) It is undisputed that the General Counsel and Charging Parties
received this letter more than three months before Prof. Dev may reasonably be expected to
testify, and this is more than sufficient time for them to prepare an effective cross-examination
and/or line up a rebuttal expert. See Nat’l Extrusion & Mfg. Co., 357 NLRB at 155 n. 29.
B. Board Practice Does Not Require An Expert Report In Addition To Notice
The fact that NLRB litigants do not exchange expert reports (except possibly by choice)
is fully consistent with the overall procedural framework in Board cases. In district courts,
parties engage in extensive discovery. There are benefits to that practice (such as eliminating
surprises at trial), but it comes with downsides – namely, discovery can be expensive and time
consuming. Board practice, by contrast, seeks to minimize those downsides, primarily by
eschewing the vast majority of discovery practices available in federal courts. See, e.g., Rainbow
Coaches, 280 NLRB 166, 168-69 (1986) (collecting cases, noting that the Act “does not require
-19-
or even specifically authorize the Board to adopt discovery procedures.”); BENCH BOOK § 7-200
(“The Board, with court approval, has historically followed this rule to protect employees and
other potential witnesses from reprisal or harassment and to avoid the delay and collateral
disputes that often accompany discovery.”); NLRB CASEHANDLING MANUAL § 10292.4 (noting
that “Federal Rules of Civil Procedure providing for compulsory pretrial discovery have been
held not applicable to Board proceedings”). In other words, NLRB litigants may subpoena
documents and fact witnesses to appear at trial, but they do not exchange lists of fact witnesses
who will be called, or engage in depositions and other discovery to ferret out what witnesses may
say on the stand. See id., BENCH BOOK § 7-300 (citing December 12, Inc., 282 NLRB 475 n.1
(1986) (“The Board does not allow the taking of depositions to provide discovery in ordinary
circumstances.”)).
As noted, Board procedures with respect to expert witnesses are somewhat different in
that a party wishing to present an expert generally must provide prior notice to its opponent. See
BENCH BOOK § 16-702.2 (citing Nat’l. Extrusion., 357 NLRB at 154–155 n. 29). But this limited
notice requirement does not alter the overall structure of Board procedures, which strongly
disfavor pre-trial discovery. Thus, neither a party nor an administrative law judge may cite
“prior notice” as a vehicle to demand an expert deposition. See, e.g., Carnegie Linen Servs., 02-
CA-039560 (Dec. 11, 2014) (“Accordingly, Respondent’s motion to take pre-trial depositions in
this matter is hereby denied.”). Likewise, a party may not cite “prior notice” as a vehicle to
demand the creation and production of an expert report. See Int’l Banquet & Conf. Ctr., 1997
WL 33316029, at *11 (expert “permitted to testify” where the employer “put the General
Counsel on notice” with a letter stating that it had “retained the services of . . . a local polygraph
examiner who is frequently retained by the FBI”).
-20-
C. The ALJ Erred In Requiring McDonald’s To Produce An Expert Report
1. Fairness and Efficiency Require Notice, Not An Expert Report.
For her part, the ALJ concluded that McDonald’s19 should be ordered to create and
produce an expert report due to “considerations of fairness and efficiency.” (Exh. B, at 7.) In
particular, she reasoned that an expert report would “facilitate the parties’ cross-examination of
Professor Dev.” (Id.) And, indeed it might. But concepts of “fairness and efficiency” do not
dictate that the Judge aid, help, or otherwise “facilitate” the General Counsel’s cross-examination
of Professor Dev or any other witness for that matter. As noted, a primary reason that Board
practice requires “advance notice” of expert testimony is so the opposing party has sufficient
time to develop plans to “effectively cross examine the witness.” Nat’l Extrusion & Mfg. Co.,
357 NLRB at 155 n. 29 (purpose of “advance notice” is to allow opponent to effectively cross-
examine the witness or “line up a rebuttal witness without significant delay and disruption to the
trial schedule.”). To alter the rules to require more in this case – essentially that McDonald’s
prepare and provide the General Counsel what amounts to an advance road map of Dr. Dev’s
expected testimony – is neither fair nor efficient from McDonald’s perspective, particularly
given the ALJ’s acknowledgement (Exh. B, at 5) that the Board has never required the
production and delivery of an expert report in addition to notice.
2. An ALJ May Not Confer Litigation Advantages Under The Guise Of Controlling
The Docket And Case Proceedings.
Notwithstanding the foregoing, the ALJ also concluded that she was permitted to require
an expert report as a mere exercise of a judge’s authority to control the case before her. (Exh. B,
19
To be clear, the Judge’s initial order required only McDonald’s to produce an expert report. As noted,
after McDonald’s filed a motion for reconsideration, the ALJ expanded her order so that it also requires a party
wishing to call a rebuttal expert to produce an expert report. While that is more fair than the Judge’s initial position
– although a moot point unless the General Counsel or Charging Parties decide to call a rebuttal expert –
McDonald’s position remains expert reports are not required in Board proceedings for the reasons stated above.
-21-
at 6.) That is also incorrect. An administrative law judge’s authority to control proceedings is
broad, but not limitless: an ALJ is bound to neutrally apply existing Board law and practice. A
Judge has no authority to countermand established Board law and practice, via implementation
of discovery practices or otherwise, particularly where (as here) the judge has simultaneously
limited the ability of one party in particular to utilize established subpoena procedures.20 See
Bashas, Inc., 352 NLRB 661, 661 (2008) (finding that ALJ abused his discretion by “in effect,
establish[ing] a procedure for discovery.”); Pacific 9 Transp., Inc., 2015 WL 3643583, at *1
(NLRB June 11, 2015) (on special appeal, finding that ALJ abused his discretion in ordering the
disclosure of names of fact witnesses); BENCH BOOK § 7-200 (citing Beta Steel Corp., 326
NLRB 1267, 1267–1268 (1998), enfd. mem. 210 F.3d 374 (2000) for the proposition that “the
judge may not order the General Counsel to provide the respondent with a witness list”); see also
Kenrich Petrochemicals v. NLRB, 893 F.2d 1468, 1484 (3d Cir. 1990), cert. denied 498 U.S. 981
(1990) (noting that appellant’s complaint regarding “the ALJ’s denial of its discovery request[]
requires little discussion”).
3. The Federal Rules Of Civil Procedure Have No Application.
The ALJ also looked to the Federal Rules of Civil Procedure to support her order. This is
disingenuous. (Exh. B, at 6-7.) There are fundamental differences between Board practice and
Federal Rule 26, the federal rule providing for expert reports in civil cases. Parties in Board
cases, for example, do not hold initial conferences to develop a discovery plan, compare
20
It is well-established, and the ALJ further admits (Exh. B, at 7) that the Board’s procedures do not
provide for pre-trial discovery or disclosure. See, e.g., Rainbow Coaches, 280 NLRB at 168-169 (1986) (collecting
cases, noting that the Act “does not require or even specifically authorize the Board to adopt discovery procedures.”);
BENCH BOOK § 7-200 (“The Board, with court approval, has historically followed this rule to protect employees and
other potential witnesses from reprisal or harassment and to avoid the delay and collateral disputes that often
accompany discovery.”); NLRB CASEHANDLING MANUAL § 10292.4 (noting that “Federal Rules of Civil Procedure
providing for compulsory pretrial discovery have been held not applicable to Board proceedings”).
-22-
FED.R.CIV.P. 26(f), something hardly surprising since there is no pre-trial discovery in Board
cases, compare FED.R.CIV.P. 26 (b). For similar reasons, FED.R.CIV.P. 26 (d)’s rules regarding
the timing and sequence of discovery do not apply in Board cases, compare Fed.R.Civ.P. 26(d),
and parties do not conduct pre-trial depositions of expert witnesses, compare FED.R.CIV.P. 26
(b)(4). Likewise, parties in Board cases do not exchange or supplement initial disclosures.
Compare FED.R.CIV.P. 26(a)(1) & (e) They do not exchange pre-trial disclosures. Compare
FED.R.CIV.P. 26(a)(3). And, importantly for present purposes, parties to Board cases do not
exchange expert reports simply because the General Counsel decides he wants one.
Further, even if the Federal Rules’ expert reporting requirements did have some
application in this case – although they do not – the ALJ’s orders here represent a fundamental
misapplication of those rules. For instance, the Judge ordered McDonald’s to provide her with a
copy of an expert report in addition to copies to opposing parties, reasoning that a report would
assist the judge in understanding expert testimony and assessing its admissibility. (Exh. B, at 8;
Exh. C, at 4.) But Rule 26(a)(2) requires only that parties exchange expert reports with each
other. Likewise, in federal courts – where expert reports are actually required – judges assess the
admissibility and probative value of expert testimony on the basis of live testimony itself. See,
e.g., 29 FED. PRAC. & PROC. EVID. § 6264.3 (2d ed.) (2017) (noting that “until specific questions
are posed to the witness, the court cannot know if the witness is qualified as an expert in the area
of inquiry”); Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994) (similar, noting that
evaluation of expert qualifications should be based on testimony demonstrating that “the precise
question on which he will be asked to opine is within his field of expertise”) (quoting U.S. v.
Kozminski, 821 F.2d 1186, 1219-1220 (6th Cir. 1987) (Guy, J., dissenting) (emphasis in
original)). And in federal courts, expert reports generally are not admitted since they are at most
-23-
cumulative of live testimony, and applying a different approach here would only compound the
unfairness to McDonald’s. See, e.g., Mengele v. Patriot II Shipping Corp., 2002 WL 237847, at
*2 (S.D.N.Y. Feb. 19, 2002) (granting motion in limine to exclude expert report from evidence,
in part, where it was simply cumulative of proffered expert testimony). And, as shown above,
the purported application of FED.R.CIV.P. 26 to this case turns on its head the most basic premise
of Rule 26 as it applies to discovery in general: no party should be favored over any other in a
given proceeding.
CONCLUSION
For the foregoing reasons, the ALJ’s Order Granting Petitions to Revoke, and Order and
Supplemental Order Regarding Production of Expert’s Report should be reversed.21
21
Per the letter sent to the Board’s Executive Secretary on October 10, 2017, the Company respectfully
requests consideration of its Request for Special Permission to Appeal the ALJ’s Expert and Subpoena Orders, and
the Appeal from the ALJ’s Orders Regarding Production of Expert’s Report and Granting Petitions to Revoke on an
expedited basis.
-24-
Dated: October 9, 2017 Respectfully submitted,
s/ Willis J. Goldsmith
Willis J. Goldsmith
Doreen S. Davis
Ilana R. Yoffe
Justin D. Martin
JONES DAY
250 Vesey Street
New York, New York 10281
Tel: 212.326.3939
Fax: 212.755.7306
[email protected]
[email protected]
[email protected]
[email protected]
Michael S. Ferrell
Jonathan M. Linas
E. Michael Rossman
JONES DAY
77 West Wacker Drive
Chicago, Illinois 60601
Tel: 312.269.4245
Fax: 312.782.8585
[email protected]
[email protected]
[email protected]
Attorneys for McDonald’s USA, LLC
-25-
CERTIFICATE OF SERVICE
The undersigned, an attorney, affirms under penalty of perjury that on October 9, 2017,
he/she caused a true and correct copy of McDonald’s USA, LLC’s Urgent Special Appeal of the
Administrative Law Judge’s Orders Granting Petitions to Revoke and Regarding Production of
Expert’s Report to be electronically filed using the National Labor Relations Board’s Internet
website and to be served upon counsel for the Parties by e-mail at the following addresses
designated for this purpose:
Gwynne Wilcox, Esq. Zachary Herlands, Esq.

Micah Wissinger, Esq. Alejandro Ortiz, Esq.
David Slutsky, Esq. Nicholas Rowe, Esq.
Alexander Rabb, Esq. Jamie Rucker, Esq.
Levy Ratner, P.C. Jacob Frisch, Esq.
80 Eighth Ave., Eighth Floor Nicole Lancia, Esq.
New York, NY 10011-7175 National Labor Relations Board, Region 2
[email protected] 26 Federal Plaza, Room 3614
[email protected] New York, NY 10278
[email protected] [email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Robert Brody, Esq. David P. Dean, Esq.

Kate Bogard, Esq. Kathy L. Krieger, Esq.
Alexander Friedman, Esq. Ryan E. Griffin, Esq.
Brody and Associates, LLC James & Hoffman, PC
120 Post Road West, Suite 101 1130 Connecticut Ave, NW, Suite 950
Westport, Connecticut 06880 Washington, DC 20036
Judith A. Scott Mary Joyce Carlson

Service Employees International Union 1100 New York Avenue, Suite 500 West, NW
1800 Massachusetts Avenue, NW Washington, DC 20005
Washington, DC 20036-1806 [email protected]
[email protected]
-26-
Michael J. Healy Deena Kobell, Esq.
Healey & Hornack, P.C. National Labor Relations Board, Region 04
247 Fort Pitt Blvd., 4th Floor 615 Chestnut Street, 7th floor
Pittsburgh, PA 15222 Philadelphia, PA 19106-4404
Claude Schoenberg Joseph A. Hirsch

Schoenberg Law Office Hirsch & Hirsch
2 Bala Plaza One Belmont Avenue
Suite 300 8th Floor, Suite 8001
Bala Cynwyd, PA 19004 Bala Cynwyd, PA 19004
Edward Castillo, Esq. Barry M. Bennett

Christina Hill, Esq. George A. Luscombe, III
Kevin McCormick, Esq. Dowd, Bloch, Bennett & Cervone
Sylvia Taylor, Esq. 8 S. Michigan Ave, Fl 19
National Labor Relations Board, Region 13 Chicago, IL 60603-3315
209 South La Salle Street, Suite 900 [email protected]
Chicago, IL 60604-1443 [email protected]
[email protected]
[email protected]
Steve A. Miller Fredric Roberson, Esq.

James M. Hux, Jr. National Labor Relations Board, Region 25
Fisher & Phillips LLP 575 N. Pennsylvania St. Suite, 238
10 S Wacker Dr., Ste 3450 Indianapolis, IN 46205-1520
[email protected]
[email protected]
Jeffrey A. Macey Sean Graham

Robert A. Hicks Weinberg Roger & Rosenfeld
Macey Swanson and Allman 800 Wilshire Boulevard, Suite 1320
445 N Pennsylvania St., Ste 401 Los Angeles, CA 90017-2623
Indianapolis, IN 46204-1893 [email protected]
[email protected]
[email protected]
Richard McPalmer, Esq. Ashley Ratliff

National Labor Relations Board, Region 20 Best, Best & Krieger
901 Market Street, Suite 400 500 Capitol Mall
San Francisco, CA 94103 Suite 1700
[email protected] Sacramento, CA 95814
[email protected]
-27-
Roger Crawford Jonathan Cohen
Best, Best & Krieger Eli Naduris-Weissman
2855 E. Guasti Road, Suite 400 Rothner, Segall & Greenstone
Ontario CA, 91761 510 South Marengo Avenue
[email protected] Pasadena, CA 91101-3115
[email protected]
[email protected]
Joseph F. Frankl Brian Gee, Esq.

Regional Director Rudy Fong-Sandoval, Esq.
National Labor Relations Board, Region 20 John Rubin, Esq.
901 Market Street, Suite 400 Anne White, Esq.
San Francisco, CA 94103 National Labor Relations Board, Region 31
[email protected] 11500 W. Olympic Boulevard, Suite 600
Los Angeles, CA 90064
[email protected]
[email protected]
[email protected]
[email protected]
Louis P. DiLorenzo, Esq. Thomas M. O’Connell

Tyler T. Hendry, Esq. Best, Best & Krieger
Patrick V. Melfi, Esq. 3390 University Avenue
Bond, Schoeneck & King, PLLC 5th Floor
600 Third Avenue Riverside, CA 92501
New York, New York 10016 [email protected]
[email protected]
[email protected]
[email protected]
s/ Justin D. Martin
An Attorney for McDonald’s USA, LLC
-28-
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
Custodian of Records, Fast Food Workers Organizing Committee
2-4 Nevins Street, 2nd Floor, Brooklyn, NY 11217
Jones Day, Counsel for McDonald's USA, LLC
250 Vesey Street New York NY 10281
26 Federal Plaza, Room 3614

New York, NY
September 25, 2017
See Attached
Case 02-CA-093893
RETURN OF SERVICE
I certify that, being a person over 18 years of
B-1-XN3BOB
age, I duly served a copy of this subpoena
O by person
• by certified mail
• by registered mail
LII by telegraph
(Check • by leaving copy at principal
method office or place of business
used.) at
on the named person on
(Month, day, and year)
(Name of person making service)
(Official title, if any)
CERTIFICATION OF SERVICE
I certify that named person was in
attendance as a witness at
on
(Month, day or days, and year)
(Name of person certifying)
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. _B-1-XN3B0B__
TO CUSTODIAN OF RECORDS FAST FOOD WORKERS ORGANIZING
COMMITTEE
CASE NOS. 02-CA-093893, ET AL
INSTRUCTIONS
I. Each request for Documents (as defined below) extends to all Documents in Your
possession, custody, or control or in the possession, custody, or control of anyone acting on Your
behalf, including Your agents, representatives, accountants, or attorneys.
II. If a privilege is asserted as a basis for withholding documents that are responsive
to any request, provide a privilege log that identifies: the bates number or bates range (or other
identifying characteristics) of the document(s) withheld; the date of the document(s) withheld;
the names of the author(s) and all recipient(s) of the document(s) withheld; the type of privilege
or protection claimed; and a brief description of the basis for Your assertion of the privilege or
protection claimed. If any documents can be produced in part, provide a redacted copy, with the
reason for any redaction included in Your privilege log.
III. The requests include requests for originals or an identical copy if the original is
not readily available, drafts or non-identical copies (whether different from the original because
of notes made thereon or otherwise), and any electronic copies or versions of the documents
described in the requests in their native format, or if too burdensome to produce in native format,
as TIFF images or as PDFs, with no text, data, embedded files, or materials hidden or otherwise
truncated.
IV. Documents that may be responsive to more than one request of this subpoena
need not be submitted more than once; however, Your response should indicate, for each
document submitted, the request to which the document is primarily responsive.
NAI-1502935838v1 1
V. If any responsive document, or part thereof, is not produced, identify each
document which You cannot produce, and describe the basis for Your failure to produce in
sufficient detail so as to permit adjudication of the validity of Your decision.
VI. Unless otherwise indicated, the requests in this subpoena are directed to the
period January 1, 2012 to December 31, 2014.
VII. The terms “any” and “all” mean each and every, as well as any one.
VIII. The terms “and” and “or” shall be construed either disjunctively or conjunctively
as necessary to bring within the scope of the request all responses that might otherwise be
construed to be outside of its scope.
IX. The singular includes the plural and vice versa.
X. No request seeks identifying information about any statutory employee of
McDonald’s or a McDonald’s Franchisee and no such information should be provided.
DEFINITIONS
As used herein, the terms listed below are defined as follows:
A. “Communication” shall mean any statement or utterance made by one person to
another or to any group of people, including but not limited to e-mails, text messages, letters, and
postings/messages on websites, Facebook, Twitter, or other social media.
B. “Concerning,” “relate/relating to,” “refer to,” and “ pertaining to” are
intended to encompass any and all information relating to, referring to, alluding to, responding to,
connected with, commenting on, in respect of, about, regarding, discussing, summarizing,
showing, describing, reflecting, analyzing, constituting, or in any way relevant to the underlying
facts of the specified subject of the particular Paragraph.
NAI-1502935838v1 2
C. “Corporate Campaign” as used herein shall mean any conduct targeting or
directed to, in part or in whole, employees in any McDonald’s-Brand Restaurant(s), including
but not limited to the campaigns referred to as Fight for 15, Fast Food Forward, Raise Up MKE,
15 Now, and Low Pay Is Not Ok.
D. “Document” means tangible materials in Your possession, custody, or control, or
the possession, custody, or control of Your agents, employees and representatives, whether in
paper form or electronically stored, and whether written or in audio, video, or audio-visual form,
and includes papers, agreements, certificates, contracts, notes, memoranda, correspondence,
letters, statements, studies, analyses, minutes, records, transcriptions, photographs, brochures,
working papers, charts, diaries, indices, wires, films, data sheets and cards, disks, CDs, DVDs, e-
mails, and recordings, and includes drafts, originals, and copies.
E. “McDonald’s” refers to McDonald’s USA, LLC, its parent corporation, and its
subsidiaries, employees, agents, supervisors, managers, and any other person or entity acting on
the Company’s behalf, but does not include any franchisees of McDonald’s USA, LLC or
employees of franchisees.
F. “McDonald’s-Brand Restaurant” as used herein shall mean any McDonald’s
restaurant, regardless of whether owned by McDonald’s or a McDonald’s Franchisee.
G. “McDonald’s Franchisee” as used herein shall mean the corporation, LLC,
person, or other entity which has a franchise agreement with McDonald’s to operate any
franchised McDonald’s-Brand Restaurant (along with their agents, officers, managers, or
supervisors) at one or more of the following locations:
(i) 220 West 42nd Street, New York, NY;
(ii) 1188 6th Avenue, New York, NY;
NAI-1502935838v1 3
(iii) 280 Madison Avenue, New York, NY;
(iv) 1651 Broadway, New York, NY;
(v) 14 East 47th Street, New York, NY;
(vi) 840 Atlantic Avenue, Brooklyn, NY;
(vii) 2142 Third Avenue, New York, NY;
(viii) 2049 Broadway, New York, NY;
(ix) 341 5th Avenue, New York, NY;
(x) 1531 Fulton Street, Brooklyn, NY;
(xi) 4259 Broadway, New York, NY; or
(xii) 3137 North Broad Street, Philadelphia, PA.
H. “Person” shall mean any natural person, corporation, partnership, association or
any other entity. No request seeks identifying information about any statutory employee of
I. “You” and “Your” shall mean the Fast Food Workers Organizing Committee or
any of its employees, agents (including all locals), supervisors, directors, officers, members,
affiliates, assigns, and any other person or entity acting on the Fast Food Workers Organizing
Committee’s behalf or at Fast Food Workers Organizing Committee’s direction.
NAI-1502935838v1 4
DOCUMENTS TO BE PRODUCED
1. Documents created or modified by You that contain the word “McDonald’s” or reference
a Corporate Campaign that were provided to Persons who work or worked at any
McDonald’s-Brand Restaurant or to anyone present in any McDonald’s-Brand restaurant.
(See Exhibit BC1162.)
2. Documents and communications discussing or otherwise related to the recruitment

strategy and/or tactics of a Corporate Campaign, and any recruiting efforts made by You
to any Person working in a McDonald’s-Brand Restaurant or any other Person for
participation in any Corporate Campaign activity directed at a McDonald’s-Brand
Restaurant, including but not limited to: disseminating Fight for Fifteen flyers, soliciting
employees or protestors, following employees home, calling employees on their cellular
phones, offers of housing, health insurance, food and toy drives, offering Hurricane
Sandy assistance, distributing candy with logos, and/or providing transportation, free
food or other incentives, monetary or non-monetary. (See Exhibits BC1162; HR 131; HR
171; HR758; HR1352; Tr. at 6652-53; Tr. at 11833.)
3. Documents and communications referencing or related to any offers, payments, or

reimbursements (in currency or in kind) made by You to any Person working in a
McDonald’s-Brand Restaurant or any other Person for participation in or in connection
with any Corporate Campaign activity at or near a McDonald’s-Brand Restaurant,
including but not limited to: paying McDonald’s customers to collect the names of
employees in a McDonald’s-Brand Restaurant, providing monetary or non-monetary
incentives or gift cards to protest, get arrested, engage in a work stoppage or any
concerted activity. (See Exhibits HR131; HR239; HR742; BC2312.)
4. Documents created or modified by You mentioning, describing, or referring to any

meeting, work stoppage, strike, rally, demonstration, or any protected concerted activity
involving Persons who work or worked at any McDonald’s-Brand Restaurant. (See Tr. at
12237-38.)
5. Documents and communications reflecting actual or potential demonstration strategy,

actions, or guidelines to be used in Corporate Campaign activity at or near any
McDonald’s-Brand Restaurant or McDonald’s Corporation headquarters, including but
not limited to: photographs of protestors in or around any McDonald’s-Brand
Restaurant(s) during demonstrations or during any Corporate Campaign activity that
depict protest activity, and any documents and communications reflecting chanting,
blocking traffic such as by sitting down/laying down/forming a human chain, blocking
driveways, blocking drive-thru lanes, locking arms, protesting in front of or in
restaurants, storming a restaurant, standing on tables/counters/chairs or other property,
paying for orders with pennies, pounding on menu boards, prying open drive-thru
windows, smashing tables, speaking to members of the media, and/or any other activity
directed at a McDonald’s-Brand Restaurant. (See Exhibit HR129; HR199; HR358;
HR856; Tr. at 3498, 5569.)
6. Documents and communications reflecting demonstration strategy or guidelines
regarding how to interact with restaurant customers, security, crew, and/or managers,
including but not limited to confronting or blocking customers or workers in or around a
McDonald’s-Brand Restaurant. (See Exhibits HR129; HR199; Tr. 5569.)
7. Documents reflecting communications with any current or former statutory supervisor at

a McDonald’s-Brand Restaurant regarding or in furtherance of any Corporate Campaign,
including but not limited to providing restaurant managers with employee strike notices.
(See HR758; Tr. at 12237-38.)
8. Documents concerning attempts to discourage Persons from purchasing McDonald’s

products, applying other financial pressure to, increasing costs for, or causing disruptions
to the business of any McDonald’s Franchisee or other owner/operator of a McDonald’s-
Brand Restaurant. (See Exhibits HR129; HR199.)
9. Documents and communications regarding actual protestor interactions with restaurant

customers, crew, managers, members of the media, security or law enforcement, or any
other Persons attending or observing a demonstration at or near a McDonald’s-Brand
Restaurant, including but not limited to: storming a restaurant, confronting customers,
confronting employees, and/or confronting owner/operators. (See Tr. at 3498, 5569,
6632, 11833.)
10. Documents and communications reflecting or discussing assault, battery, or physical

injuries inflicted on or sustained by persons during or in furtherance of Corporate
Campaign activities. (See Exhibit HR358; Tr. 9790.)
11. Documents and communications reflecting or discussing any property damage to any
McDonald’s-Brand Restaurant(s) during demonstrations or during any Corporate
Campaign activity, including but not limited to: vandalism and destruction of menu
boards, drive thru windows, counters, chairs, and/or tables. (See Exhibit HR358; Tr.
11942.)
12. Documents and communications reflecting or discussing arrests or other interactions with
law enforcement during any Corporate Campaign demonstrations involving or targeting
any McDonald’s-Brand Restaurant(s). (See Exhibit BC-2079 (p.13, rows 185-86); Tr. at
11020.)
13. Documents and communications that would have provided McDonald’s and/or a
McDonald’s Franchisee with knowledge of the Corporate Campaign or union or
protected concerted activities by employees. (See Order Granting and Denying in part
the Petitions to Revoke McDonald’s USA, LLC’s Subpoena Duces Tecum served upon the
Charging Parties and Kendall Fells (April 9, 2015, p.5).)
14. Documents and communications reflecting the actual union activities, protected
concerted activity or unprotected concerted activity engaged in by the Charging Parties
and/or employees to which McDonald’s and/or a McDonald’s Franchisee responded.
(See Order Granting and Denying in part the Petitions to Revoke McDonald’s USA,
NAI-1502328932v3
NAI-1502935838v1
LLC’s Subpoena Duces Tecum served upon the Charging Parties and Kendall Fells
(April 9, 2015, p.5).)
NAI-1502328932v3
NAI-1502935838v1
Kendall Fells, Deputy Organizing Director
c/o SEIU National Headquarters, 1800 Massachusetts Avenue, NW, Washington, DC 20036

New York, NY
September 25, 2017
See Attached
Case 02-CA-093893
RETURN OF SERVICE
B-1-XN39ZN
El by person
El by certified mail
Ei by registered mail
by telegraph
(Check by leaving copy at principal
used.) at
CERTIFICATION OF SERVICE -
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. _B-1-XN39ZN_
TO KENDALL FELLS
INSTRUCTIONS
truncated.
NAI-1502935896v1 1
DEFINITIONS
NAI-1502935896v1 2
NAI-1502935896v1 3
I. “You” and “Your” shall mean Kendall Fells or any of his employees, agents
(including all locals), supervisors, directors, officers, members, affiliates, assigns, and any other
person or entity acting on Kendall Fells’s behalf or at Kendall Fells’s direction.
NAI-1502935896v1 4

171; HR758; HR1352; Tr. at 6652-53; Tr. at 11833.)


12237-38.)

HR856; Tr. at 3498, 5569.)

(See HR758; Tr. at 12237-38.)


6632, 11833.)

11942.)
11020.)
NAI-1502328932v3
NAI-1502935896v1
(April 9, 2015, p.5).)
NAI-1502328932v3
NAI-1502935896v1
Custodian of Records, New York Communities for Change
One Metrotech North, 11th Floor, Brooklyn, NY 11201

New York, NY
September 25, 2017
See Attached
Case 02-CA-093893
RETURN OF SERVICE

B-1-XN3B5B
• by person
by registered mail
• by telegraph
used.) at
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. _B-1-XN3B5B__
TO CUSTODIAN OF RECORDS NEW YORK COMMUNITIES FOR CHANGE
INSTRUCTIONS
truncated.
NAI-1502935813v1 1
DEFINITIONS
NAI-1502935813v1 2
NAI-1502935813v1 3
I. “You” and “Your” shall mean the New York Communities for Change or any of
its employees, agents (including all locals), supervisors, directors, officers, members, affiliates,
assigns, and any other person or entity acting on the New York Communities for Change’s
behalf or at New York Communities for Change’s direction.
NAI-1502935813v1 4

171; HR758; HR1352; Tr. at 6652-53; Tr. at 11833.)


12237-38.)

HR856; Tr. at 3498, 5569.)

(See HR758; Tr. at 12237-38.)


6632, 11833.)

11942.)
11020.)
NAI-1502328932v3
NAI-1502935813v1
(April 9, 2015, p.5).)
NAI-1502328932v3
NAI-1502935813v1
Custodian of Records, Pennsylvania Workers Organizing Committee
1515 Market Street, Suite 1000, Philadelphia, PA 19102

New York, NY
September 25, 2017
See Attached
Case 02-CA-093893
RETURN OF SERVICE
B-1-XN3JUX age, I duly served a copy of this subpoena
LI by person
LI by registered mail
LI by telegraph
used.) at
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. _B-1-XN3JUX___
TO CUSTODIAN OF RECORDS PENNSYLVANIA WORKERS ORGANIZING
COMMITTEE
INSTRUCTIONS
truncated.
NAI-1502935778v1 1
DEFINITIONS
NAI-1502935778v1 2
NAI-1502935778v1 3
I. “You” and “Your” shall mean the Pennsylvania Workers Organizing Committee
or any of its employees, agents (including all locals), supervisors, directors, officers, members,
affiliates, assigns, and any other person or entity acting on the Pennsylvania Workers Organizing
Committee’s behalf or at the Pennsylvania Workers Organizing Committee’s direction.
NAI-1502935778v1 4

171; HR758; HR1352; Tr. at 6652-53; Tr. at 11833.)


12237-38.)

HR856; Tr. at 3498, 5569.)

(See HR758; Tr. at 12237-38.)


6632, 11833.)

11942.)
11020.)
NAI-1502328932v3
NAI-1502935778v1
(April 9, 2015, p.5).)
NAI-1502328932v3
NAI-1502935778v1
Custodian of Records, Service Employees International Union
1800 Massachusetts Avenue, NW, Washington, DC 20036

New York, NY
September 25, 2017
See Attached
Case 02-CA-093893
RETURN OF SERVICE
B-1-XN3A5H
O by person
0 by certified mail
111 by registered mail
• by telegraph
used.) at
(Official title; if any)
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. _B-1-XN3A5H_
TO CUSTODIAN OF RECORDS SERVICE EMPLOYEES INTERNATIONAL UNION
INSTRUCTIONS
truncated.
NAI-1502935875v1 1
DEFINITIONS
NAI-1502935875v1 2
NAI-1502935875v1 3
I. “You” and “Your” shall mean the Service Employees International Union or
any of its employees, agents (including all locals), supervisors, directors, officers, members,
affiliates, assigns, and any other person or entity acting on the Service Employees International
Union’s behalf or at Service Employees International Union’s direction.
NAI-1502935875v1 4

171; HR758; HR1352; Tr. at 6652-53; Tr. at 11833.)


12237-38.)

HR856; Tr. at 3498, 5569.)

(See HR758; Tr. at 12237-38.)


6632, 11833.)

11942.)
11020.)
NAI-1502328932v3
NAI-1502935875v1
(April 9, 2015, p.5).)
NAI-1502328932v3
NAI-1502935875v1
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
FORM NLRB-31
SUBPOENA DUCES TECUM

____________________________________________________

NATIONAL LABOR RELATIONS BOARD
To Custodian of Records, Service Employers International Union (SEIU),
1800 Massachusetts Avenue, NW, Washington, DC 20036
As requested by Jones Day, Counsel for McDonald's USA, LLC
whose address is 222 East 41st Street New York NY 10017

(Street) (City) (State) (ZIP)
YOU ARE HEREBY REQUIRED AND DIRECTED TO APPEAR BEFORE an Administrative Law Judge
of the National Labor Relations Board
at 26 Federal Plaza, Room 3614

in the City of New York , New York 10278
on March 30, 2015 at 9:30 a.m. or any adjourned
Lewis Foods of 42nd Street, LLC, a Mcdonald’s Franchisee, and Mcdonald’s
USA, LLC, Joint Employers
or rescheduled date to testify in Case Nos. 02-CA-093893 et al.
(Case Name and Number)
And you are hereby required to bring with you and produce at said time and place the following books, records,
correspondence, and documents:
SEE ATTACHMENT
If you do not intend to comply with the subpoena, within 5 days (excluding intermediate Saturdays, Sundays, and holidays) after the date the subpoena
is received, you must petition in writing to revoke the subpoena. Unless filed through the Board’s E-Filing system, the petition to revoke must be
received on or before the official closing time of the receiving office on the last day for filing. If filed through the Board’s E-Filing system, it may be filed
up to 11:59 pm in the local time zone of the receiving office on the last day for filing. Prior to a hearing, the petition to revoke should be filed with the
Regional Director; during a hearing, it should be filed with the Hearing Officer or Administrative Law Judge conducting the hearing. See Board's Rules
and Regulations, 29 C.F.R Section 102.31(b) (unfair labor practice proceedings) and/or 29 C.F.R. Section 102.66(c) (representation proceedings) and
29 C.F.R Section 102.111(a)(1) and 102.111(b)(3) (time computation). Failure to follow these rules may result in the loss of any ability to raise
objections to the subpoena in court.
Under the seal of the National Labor Relations Board, and by direction of the
Board, this Subpoena is
B-1-LB3LAP
Issued at
Dated:
NOTICE TO WITNESS. Witness fees for attendance, subsistence, and mileage under this subpoena are payable by the party at whose request
the witness is subpoenaed. A witness appearing at the request of the General Counsel of the National Labor Relations Board shall submit this
subpoena with the voucher when claiming reimbursement.
PRIVACY ACT STATEMENT
Solicitation of the information on this form is authorized by the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. The principal use of the
information is to assist the National Labor Relations Board (NLRB) in processing representation and/or unfair labor practice proceedings and related
proceedings or litigation. The routine uses for the information are fully set forth in the Federal Register, 71 Fed. Reg. 74942-43 (Dec. 13, 2006). The
NLRB will further explain these uses upon request. Disclosure of this information to the NLRB is mandatory in that failure to supply the information may
cause the NLRB to seek enforcement of the subpoena in federal court.
Case 02-CA-093893 RETURN OF SERVICE
B-1-LB3LAP age, I duly served a copy of this subpoena
by person
by certified mail
by registered mail
by telegraph
used.) at
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. B-1-LB3LAP TO
THE SERVICE EMPLOYEES INTERNATIONAL UNION
CASE NOS. 02-CA-093893 ET AL.
INSTRUCTIONS
truncated.
IV. Each document is to be produced in its entirety, without redaction or expurgation
of any kind or nature whatsoever and as kept in the normal course of business.
V. Documents that may be responsive to more than one request of this subpoena
document submitted, each request to which the document is responsive.
DB1/ 82466878.4
1
VI. If production is requested of a document that is no longer in Your possession,
custody, or control, please provide to the extent known a log indicating (a) when the document
was most recently in Your possession, custody, or control, (b) the disposition made of the
document, and (c) the identity of the person, if any, presently in possession, custody, or control
of such document. If the document has been destroyed, the answer should also state (a) the
reason for its destruction, (b) the identity of the person who destroyed the document, and (c) the
identity of the person who directed that the document be destroyed.
VII. If any responsive document, or part thereof, is not produced, identify each
document which You refuse to produce, and describe the basis for Your refusal to produce in
sufficient detail so as to permit adjudication of the validity of Your refusal.
VIII. Unless otherwise indicated, the requests in this subpoena are limited to January 1,
2011 to present. All requests are continuing and require production of additional relevant
documents upon creation or identification.
IX. The terms “any” and “all” mean each and every, as well as any one.
X. The terms “and” and “or” shall be construed either disjunctively or conjunctively
XI. The singular includes the plural and vice versa.
DEFINITIONS
another or to any group of people, including but not limited to e-mails, text messages, and
DB1/ 82466878.4
2
B. “Case” or “Cases” shall mean all unfair labor practice charges filed against
McDonald’s or any person or entity that operates a McDonald’s franchise restaurant since
November 2012 and/or any charge linked on the National Labor Relation Board (“NLRB”)’s
McDonald’s Fact Sheet, available at http://www.nlrb.gov/news-outreach/fact-sheets/mcdonalds-
fact-sheet.
C. “Charging Party” shall mean any charging party in any Case, including but not
limited to the Fast Food Workers Committee, the Service Employees International Union, CTW,
CLC, the Pennsylvania Workers Organizing Committee, the Workers Organizing Committee of
Chicago, the Western Workers Organizing Committee, and the Los Angeles Organizing
Committee.
D. “Concerning,” “relate to,” “refer to,” and “ pertaining to” are intended to
encompass any and all information relating to, referring to, alluding to, responding to, connected
with, commenting on, in respect of, about, regarding, discussing, summarizing, showing,
describing, reflecting, analyzing, constituting, or in any way relevant to the underlying facts of
the specified subject of the particular Paragraph.
E. “Consolidated Complaints” means the individual Complaints and Consolidated
Complaints filed against McDonald’s USA, LLC and various entities that operate McDonald’s
franchise restaurants by the General Counsel of the National Labor Relations Board on
December 19, 2014, in NLRB Regions 2, 4, 13, 20, 25, and 31, which the General Counsel
further consolidated into one omnibus consolidated complaint on January 6, 2015, and any such
Complaints consolidated therein in the future.
F. “Document” means tangible materials in Your possession, custody, or control, or
DB1/ 82466878.4
3
G. “Fast Food Campaign” as used herein shall mean any campaign targeting
employees in any quick-service or “fast food” restaurant(s), including but not limited to, the
campaigns referred to as Fast Food Forward, Raise Up MKE, Fight for 15, 15 Now, and Low
Pay Is Not Ok.
H. “McDonald’s” refers to McDonald’s USA, LLC, its parent corporation, and its
subsidiaries, employees, agents, supervisors, managers (including but not limited to General
Managers and Directors of Operations), and any other person or entity acting on the Company’s
behalf, but does not include any franchisees of McDonald’s USA, LLC or any statutory
employees in any company-owned and operated McDonald’s-Brand Restaurant.
I. “McDonald’s-Brand Restaurant” as used herein shall mean any McDonald’s
J. “McDonald’s Corporate Employee” as used herein shall mean any McDonald’s
employee or agent that does not work at a McDonald’s-Brand Restaurant.
K. “McDonald’s Franchisee” as used herein shall mean the corporation, LLC,
person, or other entity owning any franchised McDonald’s-Brand Restaurant, as well as the
supervisors, managers (including but not limited to General Managers and Directors of
Operations), affiliates, predecessors, successors, assigns, parents, and/or subsidiaries and any
DB1/ 82466878.4
4
other person or entity acting on the franchisee’s behalf, but excluding statutory employees in any
franchisee-owned and operated McDonald’s-Brand Restaurant.
L. “Person” shall mean any natural person, corporation, partnership, association or
any other entity.
M. “You” and “Your” shall mean the Service Employees International Union,
CTW, CLC, its employees and agents (including all locals), supervisors, directors, officers,
members, affiliates, predecessors, successors, assigns, parents, and/or subsidiaries and any other
person or entity acting on the Union’s behalf.
DB1/ 82466878.4
5
1. Documents which You believe support any allegation in the Consolidated Complaints,
whether or not said documents are ultimately deemed admissible as evidence.
2. Communications relating to the Consolidated Complaints and/or the allegations

contained in the unfair labor practice charges filed in those cases.
3. Documents concerning and/or used to draft any subpoena served on any party in the
Consolidated Complaints.
4. Documents referencing, referring to or reflecting the Fast Food Campaign, McDonald’s,

any McDonald’s Franchisee, any McDonald’s-Brand Restaurant, the McDonald’s brand,
franchised and/or fast food businesses, the allegations in the Consolidated Complaint,
and/or the allegations contained in the unfair labor practice charges filed in those cases,
including the joint employer allegations, during the period of January 1, 2009 to the
present.
5. Documents reflecting communications with any McDonald’s Franchisee or former

McDonald’s Franchisee during the period of January 1, 2009 to the present.
6. Documents reflecting communications with any current or former McDonald’s Corporate

Employees during the period of January 1, 2009 to the present.
7. Documents reflecting communications with any Charging Party discussing or in any way
referencing the Fast Food Campaign, McDonald’s, any McDonald’s Franchisee, any
McDonald’s-Brand Restaurant, the McDonald’s brand, franchised and/or fast food
businesses, and/or the allegations in the Consolidated Complaint, including the joint
employer allegations, during the period of January 1, 2009 to the present.
8. Documents related to coordinating and sharing information between You and any
organization, firm or individual concerning any allegation in the Consolidated Complaint
or any other Case, during the period of January 1, 2009 to the present.
9. Documents reflecting communications with any Regional office, Division of Advice,

General Counsel’s office, employee and/or supervisor of the National Labor Relations
Board concerning the Cases, the Fast Food Campaign, McDonald’s, any McDonald’s
Franchisee, any McDonald’s-Brand Restaurant, the McDonald’s brand, franchised and/or
fast food businesses, and/or the allegations in the Consolidated Complaint, including the
joint employer allegations but excluding confidential witness statements of any non-
supervisory employee who works or worked at any McDonald’s-Brand Restaurant
10. Documents reflecting communications with the firm BerlinRosen that discuss or in any
way reference the Cases, the Fast Food Campaign, McDonald’s, any McDonald’s
joint employer allegations, during the period of January 1, 2009 to the present.
DB1/ 82466878.4
11. Documents or filings reflecting communications with any elected or appointed politicians
of state, local, or federal government, that discuss or in any way reference the Cases, the
Fast Food Campaign, McDonald’s, any McDonald’s Franchisee, any McDonald’s-Brand
Restaurant, the McDonald’s brand, franchised and/or fast food businesses, and/or the
allegations in the Consolidated Complaint, including the joint employer allegations,
during the period of January 1, 2009 to the present.
12. Except for documents protected by the attorney-client privilege, communications

between You and any entity, individual, business, organization, non-profit, union, labor
organization, or worker center listed on Your Form LM-2 Labor Organization Annual
Report in 2012, 2013, and/or 2014 that discuss or in any way reference the Cases, the
allegations in the Consolidated Complaint, including the joint employer allegations, with
the sole exception that this request does not seek identifying information about any
statutory employee of a McDonald’s or McDonald’s Franchisee restaurant.
13. Documents, including manuals, toolboxes, instructions, or memoranda concerning

corporate campaigns, contract campaigns, organizing campaigns, tactics to use in
corporate campaigns, and tactics to use in obtaining card-check agreements, neutrality
agreements, labor peace agreements, and/or labor harmony agreements that You used
and/or distributed from the period of January 1, 2009 to the present, with the sole
exception that this request does not seek identifying information about any statutory
employee of a McDonald’s or McDonald’s Franchisee restaurant.
14. Documents, including manuals, toolboxes, instructions, or memoranda concerning fast

food or quick-service workers and/or industry from the period of January 1, 2009 to the
present, including but not limited to, any memoranda sent to the Property Services
Division Leadership Board, with the sole exception that this request does not seek
identifying information about any statutory employee of a McDonald’s or McDonald’s
Franchisee restaurant.
15. Documents concerning applying financial pressure to and/or increasing costs for any
franchisor or franchisee, including but not limited to McDonald’s, any McDonald’s
Franchisee, and any McDonald’s-Brand Restaurant from the period of January 1, 2009 to
the present.
16. Documents describing, concerning, or in any way related to investigations and/or

lawsuits involving McDonald’s, any McDonald’s Franchisee, or any McDonald’s-Brand
Restaurant.
17. Documents discussing assignments, responsibilities, performance reviews, projects,

and/or job duties of Kendall Fells, Caleb Jennings, E.J. Serrano, Wesley McEnany,
Michael Lauer, Mark Raleigh, Martin Manteca, Ryan Dowling, Benjamin Wilkins,
Jonathan Westin, Katelyn Johnson, Bertha Lewis, and Camille Rivera and documents
showing compensation paid or any type of remuneration given to any of these
individuals.
DB1/ 82466878.4 7
18. Job postings, job notices, independent contractor postings, and/or consultant postings
employer allegations, and regardless of whether such postings are for positions that You
consider employee positions.
19. Documents reflecting any communication of any responses, bids, or proposals –

including but not limited to documents in response to any Requests for Proposal (“RFP”),
Requests for Information (“RFI”), and requests for bids – concerning the Fast Food
Campaign, McDonald’s, any McDonald’s Franchisee, any McDonald’s-Brand
allegations in the Consolidated Complaint, including the joint employer allegations.
20. Any Requests for Proposal (“RFP”), Requests for Information (“RFI”), and requests for
bids concerning the Fast Food Campaign, McDonald’s, any McDonald’s Franchisee, any
employer allegations.
21. Communications, including but not limited to all invoices, bills and/or other statements of
work with any public relations consultants, researchers, analysts, lobbyists, media
consultants, and/or public relations strategy firm that discuss or in any way pertain to the
22. Documents concerning research, studies, or other publications that You sponsored,
financed or provided any financial assistance to that discuss or in any way reference the
23. Documents concerning research, studies, or other publications that any Charging Party
sponsored, financed or provided any financial assistance to that discuss or in any way
reference the Fast Food Campaign, McDonald’s, any McDonald’s Franchisee, any
24. Documents showing any funding, corporate or other relationship between You and any
Charging Party, including but not limited to, any organizational charts and/or payments
made or received, whether paid directly or through another entity or series of entities, and
any agreements regarding such payments.
DB1/ 82466878.4 8
25. Documents concerning payments, reimbursements, or provision of anything of value to
any individual or organization in connection (in whole or in part) with any protest,
demonstration, “day of action” or other activity at or near McDonald’s property,
including its corporate offices, and/or any McDonald’s-Brand Restaurant, with the sole
26. Documents concerning civil disobedience, arrests, property damage, or unlawful behavior
at any fast food restaurant and/or McDonald’s property, including its corporate offices;
with the sole exception that this request does not seek identifying information about any
27. Documents concerning sit-ins, die-ins or in-store protests at any fast food restaurant
and/or McDonald’s property, with the sole exception that this request does not seek
28. Communications between You and any government agency, its employees or agents,
concerning McDonald’s, any McDonald’s Franchisee, or any McDonald’s-Brand
Restaurant, including but not limited to, the New York Attorney General, the U.S.
Department of Labor, and/or and state labor departments.
29. FOIA requests that You filed concerning or referencing McDonald’s, any McDonald’s
Franchisee, or any McDonald’s-Brand Restaurant, and any documents provided in
response to such requests.
30. FOIA requests in Your possession that another party filed referencing McDonald’s, any
McDonald’s Franchisee, or any McDonald’s-Brand Restaurant, and any documents
provided in response to such requests.
31. Documents concerning press releases and/or other communications to newspapers, blogs,
websites, magazines, or other publications concerning or in any way mentioning fast
food, the Fast Food Campaign, McDonald’s, any McDonald’s Franchisee, any
32. Documents that reference, concern, refer to or reflect McDonald’s shareholder proposals,
including but not limited to any documents concerning proxy statements.
33. Documents that reference, concern, refer to or reflect McDonald’s SEC filings.
34. Documents, including but not limited to presentations, recordings, handouts, and speaker
notes, concerning any convention discussing the Fast Food Campaign, including but not
limited to the convention on or around August 15-16, 2013 and the convention that began
on or around July 25, 2014.
DB1/ 82466878.4 9
FORM NLRB-31

____________________________________________________

To Kendall Fells, c/o SEIU, 4256 Paseo, Kansas City, MO 64110
222 East 41st Street New York NY 10017

whose address is
at 8600 Farley Street, Suite 100

Overland Park, KS
in the City of

SEE ATTACHMENT
B-1-LB34T3
Issued at
Dated:
B-1-LB34T3 age, I duly served a copy of this subpoena
by person
by certified mail
by registered mail
by telegraph
used.) at
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. B-1-LB34T3 TO
KENDALL FELLS
INSTRUCTIONS
truncated.
DB1/ 82502389.3
1
DEFINITIONS
DB1/ 82502389.3
2
fact-sheet.
Committee.
DB1/ 82502389.3
3
Pay Is Not Ok.
DB1/ 82502389.3
4
“Person” shall mean any natural person, corporation, partnership, association or any other
entity.
L. “SEIU” shall mean the Service Employees International Union, CTW, CLC, its
employees and agents (including all locals), supervisors, directors, officers, members, affiliates,
predecessors, successors, assigns, parents, and/or subsidiaries and any other person or entity
acting on the Union’s behalf.
M. “You” and “Your” shall mean Kendall Fells, as well as any other person or entity
acting on Your behalf.
DB1/ 82502389.3
5
1. Documents which You believe support any allegation in the Consolidated Complaints,
whether or not said documents are ultimately deemed admissible as evidence.


present.


7. Documents reflecting communications with any Charging Party discussing or in any way

supervisory employee who works or worked at any McDonald’s-Brand Restaurant.
DB1/ 82502389.3


present, including but not limited to, any memoranda sent to the Property Services
Division Leadership Board, with the sole exception that this request does not seek
the present.

Restaurant.
16. Communications with any public relations consultants, researchers, analysts, lobbyists,
media consultants, and/or public relations strategy firm that discuss or in any way pertain
to the Fast Food Campaign, McDonald’s, any McDonald’s Franchisee, any McDonald’s-
Brand Restaurant, the McDonald’s brand, franchised and/or fast food businesses, and/or
the allegations in the Consolidated Complaint, including the joint employer allegations,

DB1/ 82502389.3 7
DB1/ 82502389.3 8
FORM NLRB-31

____________________________________________________

To Custodian of Records, Pennsylvania Workers Organizing Committee, A Project of the Fast Food Workers Committee
1515 Market Street, Suite 1000, Philadelphia, PA

19102

in the City of New York, NY
SEE ATTACHMENT
B-1-LB2TN5
Issued at
Dated:
B-1-LB2TN5 age, I duly served a copy of this subpoena
by person
by certified mail
by registered mail
by telegraph
used.) at
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. B-1-LB2TN5 TO
PENNSYLVANIA WORKERS ORGANIZING COMMITTEE, A PROJECT OF THE
FAST FOOD WORKERS COMMITTEE
INSTRUCTIONS
the names of the author(s) and recipient(s) of the document(s) withheld; the type of privilege or
protection claimed; and a brief description of the basis for Your assertion of the privilege or
protection claimed.
as TIFF images or as PDFs.
IV. If production is requested of a document that is no longer in your possession,
was most recently in your possession, custody, or control, (b) the disposition made of the
1
document which you refuse to produce, and describe the basis for your refusal to produce in
sufficient detail so as to permit adjudication of the validity of your refusal.
VI. To the extent that any communication or document requested in this subpoena
identifies by name an employee or employees of the Franchisees or McDonald’s Restaurants of
Illinois, Inc., engaged in protected, concerted and/or union activity, please redact the identifying
information and produce the document otherwise.
DEFINITIONS
B. “Consolidated Complaints” means the Complaints and Consolidated
further consolidated into one omnibus consolidated complaint on January 6, 2015.
C. “Document” means tangible materials in your possession, custody, or control, or
the possession, custody, or control of your agents, employees and representatives, whether in
2
D. “Fast Food Campaign” as used herein shall mean any campaign targeting
campaigns referred to as Fast Food Forward, Raise Up MKE, Fight for 15, 15 Now, Fight for a
Fair Economy, and Low Pay Is Not Ok.
E. “Franchisees” shall mean the franchisees (along with their agents, officers,
managers, or supervisors) of McDonald’s USA, LLC that operate a McDonald’s-brand restaurant
at one or more of the following locations:
(xi) 4259 Broadway, New York, NY;
(xii) 3137 North Broad Street, Philadelphia, PA;
(xiii) 201 North Clark Street, Chicago, IL;
(xiv) 10 East Chicago Avenue, Chicago, IL;
(xv) 3 South Clark Street, Chicago, IL;
3
(xvi) 600 North Clark Street, Chicago, IL;
(xvii) 2707 North Milwaukee Avenue, Chicago, IL;
(xviii) 23 North Western Avenue, Chicago, IL;
(xix) 9211 South Commercial Avenue, Chicago, IL;
(xx) 1004 West Wilson, Chicago, IL;
(xxi) 29 East 87th Street, Chicago, IL;
(xxii) 70 East Garfield Boulevard, Chicago, IL;
(xxiii) 4047 East 106th Street, Chicago, IL;
(xxiv) 5220 South Lake Park Avenue, Chicago, IL;
(xxv) 1611 North Meridian Street, Indianapolis, IN;
(xxvi) 1071 West Martin Luther King Boulevard, Los Angeles, CA;
(xxvii) 4292 Crenshaw Boulevard, Los Angeles, CA;
(xxviii)2838 Crenshaw Boulevard, Los Angeles, CA;
(xxix) 8940 Pocket Road, Sacramento, CA.
F. “McDonald’s” refers to McDonald’s USA, LLC, its parent corporation, and its
subsidiaries, but does not include any franchisees of McDonald’s USA, LLC.
G. “Person” shall mean any natural person, corporation, partnership, association or
any other entity.
H. “PWOC” shall mean the Pennsylvania Workers Organizing Committee, A
Project of the Fast Food Workers Committee, as well as any person or persons acting on its
behalf.
I. “SEIU” shall mean the Service Employees International Union, CTW, CLC,
along with its local unions, affiliates, and/or subsidiaries, and any person or persons acting on its
behalf.
4
J. “You” and “Your” means the PWOC.
DOCUMENTS T O BE PRODUCED
1. Documents describing, memorializing, or used in the formation and/or creation of
the PWOC, including documents describing the PWOC’s organizational missions, goals, or
purposes.
2. Documents reflecting the organizational structure of the PWOC, including
organizational chart(s) and document(s) identifying the roles, responsibilities, and names of
Persons employed by the PWOC or authorized to act on behalf of the PWOC, including its
officers and/or executives.
3. The constitution, bylaws, and articles of association of the PWOC, including the
original and all amended and/or restated versions of the constitution, bylaws, and articles of
association, along with similar document(s) memorializing rules or guidelines for the operation
of the PWOC.
4. Filings submitted by the PWOC to any governmental entity between January 1,
2009 and the present.
5. Financial statements, tax returns, and financial disclosure documents for the
PWOC that were drafted, revised, or filed between January 1, 2009 and the present.
6. Documents created or modified between January 1, 2009 and the present
reflecting or relating to payments received by the PWOC from the SEIU, whether paid directly
by the SEIU or through another entity or series of entities, including agreements between the
SEIU and the PWOC concerning such payments.
reflecting or relating to payments received by the PWOC from an organization other than the
5
SEIU, including agreements between that organization and the PWOC concerning such
payments.
8. Documents created or modified between January 1, 2009 and the present related
to coordinating and sharing information between the PWOC and another organization
concerning Persons who work or worked at any McDonald’s-brand restaurant.
9. Communications between January 1, 2009 and the present between the PWOC
and another organization, including the SEIU, related to the Fast Food Campaign, or other
similar activity involving Persons who work or worked at any McDonald’s-brand restaurant.
10. Communications between January 1, 2009 and the present between the PWOC
and any public relations consultant(s) or professional(s) related to the Fast Food Campaign, or
other similar activity involving Persons who work or worked at any McDonald’s-brand
restaurant.
reflecting or relating to strategies, tactics, and/or planning concerning the Fast Food Campaign,
or other similar activity involving Persons who work or worked at any McDonald’s-brand
restaurant.
reflecting Communications, agendas, notes, or minutes from meetings (including membership
meetings, local union meetings, international union meetings, public meetings, committee
meetings, strategy meetings, executive meetings, board meetings, or press conferences) in which
the word “McDonald’s” appears.
13. Documents created or modified between January 1, 2009 and the present relating
to information gathering at a McDonald’s-brand restaurant.
6
to organizing activity at a McDonald’s-brand restaurant.
15. Documents created or modified between January 1, 2009 and the present that
were distributed to media outlets by the PWOC that contain the word “McDonald’s.”
contain the word “McDonald’s” that were provided to Persons who work or worked at any
McDonald’s-brand restaurant.
were provided by the PWOC to a member or members of the general public that contain the
word “McDonald’s.”
reflecting the name and contact information of any Persons paid money, reimbursed, or provided
anything of value by the PWOC or the SEIU to participate in, or for participating in, conduct
directed (in whole or in part) at any McDonald’s-brand restaurant or McDonald’s generally,
including any “day of action.”
mentioning, describing, or referring to any work stoppage, strike, rally, demonstration, or
meeting involving Persons who work or worked at any McDonald’s-brand restaurant.
were provided by the PWOC or another organization to Persons participating or planning to
participate in any work stoppage, strike, rally, demonstration, or meeting involving Persons who
work or worked at any McDonald’s-brand restaurant.
7
reflect the names and/or contact information of any Person authorized to act on behalf of the
PWOC who was present at any work stoppage, strike, rally, demonstration, or meeting involving
Persons who work or worked at any McDonald’s-brand restaurant.
22. Documents created or modified between January 1, 2012 and the present that the
PWOC believes support the allegations made in the following unfair labor practice charges filed
with Region 4 of the National Labor Relations Board: Case Nos. 04-CA-125567, 04-CA-129783,
and 04-CA-133621.
23. Communications created or modified between January 1, 2012 and the present
sent or received by members, employees, agents, executives, or officers of the PWOC relating to
NLRB Case Nos. 04-CA-125567, 04-CA-129783, and 04-CA-133621, and/or the allegations
24. Documents submitted to the National Labor Relations Board by or on behalf of
the PWOC in support of NLRB Case Nos. 04-CA-125567, 04-CA-129783, and 04-CA-133621,
excluding confidential witness statements of any non-supervisory employee who works or
worked at any McDonald’s-brand restaurant that is named in the Consolidated Complaints or
that was identified in an unfair labor practice charge filed by the PWOC.
8
FORM NLRB-31

____________________________________________________

To Custodian of Records, Fast Food Workers Committee,
2-4 Nevins Street, Second Floor, Brooklyn, NY 11217
whose address is
222 East 41st Street New York NY 10017
in the City of New York, NY

SEE ATTACHMENT
B-1-LB2P43
Issued at
Dated:
B-1-LB2P43 age, I duly served a copy of this subpoena
by person
by certified mail
by registered mail
by telegraph
used.) at
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. B-1-LB2P43 TO
FAST FOOD WORKERS COMMITTEE
INSTRUCTIONS
the names of the author(s) and recipient(s) of the document(s) withheld; the type of privilege or
protection claimed; and a brief description of the basis for Your assertion of the privilege or
protection claimed.
as TIFF images or as PDFs.
IV. If production is requested of a document that is no longer in your possession,
was most recently in your possession, custody, or control, (b) the disposition made of the
1
document which you refuse to produce, and describe the basis for your refusal to produce in
sufficient detail so as to permit adjudication of the validity of your refusal.
VI. To the extent that any communication or document requested in this subpoena
identifies by name an employee or employees of the Franchisees or McDonald’s Restaurants of
Illinois, Inc., engaged in protected, concerted and/or union activity, please redact the identifying
information and produce the document otherwise.
DEFINITIONS
B. “Consolidated Complaints” means the Complaints and Consolidated
further consolidated into one omnibus consolidated complaint on January 6, 2015.
C. “Document” means tangible materials in your possession, custody, or control, or
the possession, custody, or control of your agents, employees and representatives, whether in
2
D. “Fast Food Campaign” as used herein shall mean any campaign targeting
campaigns referred to as Fast Food Forward, Raise Up MKE, Fight for 15, 15 Now, Fight for a
Fair Economy, and Low Pay Is Not Ok.
E. “FFWC” shall mean the Fast Food Workers Committee, as well as any person or
persons acting on its behalf.
F. “Franchisees” shall mean the franchisees (along with their agents, officers,
managers, or supervisors) of McDonald’s USA, LLC that operate a McDonald’s-brand restaurant
at one or more of the following locations:
(xi) 4259 Broadway, New York, NY;
(xii) 3137 North Broad Street, Philadelphia, PA;
(xiii) 201 North Clark Street, Chicago, IL;
(xiv) 10 East Chicago Avenue, Chicago, IL;
(xv) 3 South Clark Street, Chicago, IL;
3
(xvi) 600 North Clark Street, Chicago, IL;
(xvii) 2707 North Milwaukee Avenue, Chicago, IL;
(xviii) 23 North Western Avenue, Chicago, IL;
(xix) 9211 South Commercial Avenue, Chicago, IL;
(xx) 1004 West Wilson, Chicago, IL;
(xxi) 29 East 87th Street, Chicago, IL;
(xxii) 70 East Garfield Boulevard, Chicago, IL;
(xxiii) 4047 East 106th Street, Chicago, IL;
(xxiv) 5220 South Lake Park Avenue, Chicago, IL;
(xxv) 1611 North Meridian Street, Indianapolis, IN;
(xxvi) 1071 West Martin Luther King Boulevard, Los Angeles, CA;
(xxvii) 4292 Crenshaw Boulevard, Los Angeles, CA;
(xxviii)2838 Crenshaw Boulevard, Los Angeles, CA;
(xxix) 8940 Pocket Road, Sacramento, CA.
G. “McDonald’s” refers to McDonald’s USA, LLC, its parent corporation, and its
subsidiaries, but does not include any franchisees of McDonald’s USA, LLC.
any other entity.
I. “SEIU” shall mean the Service Employees International Union, CTW, CLC,
along with its local unions, affiliates, and/or subsidiaries, and any person or persons acting on its
behalf.
J. “You” and “Your” means the FFWC.
DOCUMENTS T O BE PRODUCED
4
1. Documents describing, memorializing, or used in the formation and/or creation of
the FFWC, including documents describing the FFWC’s organizational missions, goals, or
purposes.
2. Documents reflecting the organizational structure of the FFWC, including
organizational chart(s) and document(s) identifying the roles, responsibilities, and names of
Persons employed by the FFWC or authorized to act on behalf of the FFWC, including its
officers and/or executives.
3. The constitution, bylaws, and articles of association of the FFWC, including the
original and all amended and/or restated versions of the constitution, bylaws, and articles of
association, along with similar document(s) memorializing rules or guidelines for the operation
of the FFWC.
4. Filings submitted by the FFWC to any governmental entity between January 1,
2009 and the present.
5. Financial statements, tax returns, and financial disclosure documents for the
FFWC that were drafted, revised, or filed between January 1, 2009 and the present.
reflecting or relating to payments received by the FFWC from the SEIU, whether paid directly
by the SEIU or through another entity or series of entities, including agreements between the
SEIU and the FFWC concerning such payments.
reflecting or relating to payments received by the FFWC from an organization other than the
SEIU, including agreements between that organization and the FFWC concerning such
payments.
5
to coordinating and sharing information between the FFWC and another organization concerning
9. Communications between January 1, 2009 and the present between the FFWC
and another organization, including the SEIU, related to the Fast Food Campaign, or other
similar activity involving Persons who work or worked at any McDonald’s-brand restaurant.
10. Communications between January 1, 2009 and the present between the FFWC
and any public relations consultant(s) or professional(s) related to the Fast Food Campaign or
restaurant.
reflecting or relating to strategies, tactics, and/or planning concerning the Fast Food Campaign or
restaurant.
reflecting Communications, agendas, notes, or minutes from meetings (including membership
meetings, local union meetings, international union meetings, public meetings, committee
meetings, strategy meetings, executive meetings, board meetings, or press conferences) in which
the word “McDonald’s” appears.
13. Documents created or modified between January 1, 2009 and the present relating
to information gathering at a McDonald’s-brand restaurant.
to organizing activity at a McDonald’s-brand restaurant.
6
were distributed to media outlets by the FFWC that contain the word “McDonald’s.”
contain the word “McDonald’s” that were provided to Persons who work or worked at any
McDonald’s-brand restaurant.
were provided by the FFWC to a member or members of the general public that contain the word
“McDonald’s.”
reflecting the name and contact information of any Persons paid money, reimbursed, or provided
anything of value by the FFWC or the SEIU to participate in, or for participating in, conduct
directed (in whole or in part) at any McDonald’s-brand restaurant or McDonald’s generally,
including any “day of action.”
mentioning, describing, or referring to any work stoppage, strike, rally, demonstration, or
meeting involving Persons who work or worked at any McDonald’s-brand restaurant.
were provided by the FFWC or another organization to Persons participating or planning to
participate in any work stoppage, strike, rally, demonstration, or meeting involving Persons who
work or worked at any McDonald’s-brand restaurant.
reflect the names and/or contact information of any Person authorized to act on behalf of the
7
FFWC who was present at any work stoppage, strike, rally, demonstration, or meeting involving
22. Documents created or modified between January 1, 2012 and the present that the
FFWC believes support the allegations made in the following unfair labor practice charges filed
with Region 2 of the National Labor Relations Board: Case Nos. 02-CA-093893, 02-CA-093895,
02-CA-093927, 02-CA-094224, 02-CA-094679, 02-CA-097305, 02-CA-097827, 02-CA-
098009, 02-CA-098604, 02-CA-098659, 02-CA-098662, 02-CA-098676, 02-CA-103384, 02-
CA-103726, 02-CA-103771, 02-CA-106094, and 02-CA-112282.
23. Communications created or modified between January 1, 2012 and the present
sent or received by members, employees, agents, executives, or officers of the FFWC relating to
NLRB Case Nos. 02-CA-093893, 02-CA-093895, 02-CA-093927, 02-CA-094224, 02-CA-
094679, 02-CA-097305, 02-CA-097827, 02-CA-098009, 02-CA-098604, 02-CA-098659, 02-
CA-098662, 02-CA-098676, 02-CA-103384, 02-CA-103726, 02-CA-103771, 02-CA-106094,
and 02-CA-112282 and/or the allegations contained in the unfair labor practice charges filed in
those cases.
24. Documents submitted to the National Labor Relations Board by or on behalf of
the FFWC in support of NLRB Case Nos. 02-CA-093893, 02-CA-093895, 02-CA-093927, 02-
CA-094224, 02-CA-094679, 02-CA-097305, 02-CA-097827, 02-CA-098009, 02-CA-098604,
02-CA-098659, 02-CA-098662, 02-CA-098676, 02-CA-103384, 02-CA-103726, 02-CA-
103771, 02-CA-106094, and 02-CA-112282, excluding confidential witness statements of any
non-supervisory employee who works or worked at any McDonald’s-brand restaurant that is
named in the Consolidated Complaints or that was identified in an unfair labor practice charge
filed by the FFWC.
8
FORM NLRB-31

____________________________________________________

To Custodian of Records, New York Communities for Change,
2-4 Nevins Street, Second Floor, Brooklyn, NY 11217

in the City of New York, New York 10278
on March 30, 2015 at 9:30am or any adjourned

SEE ATTACHMENT
B-1-LB34SJ
Issued at
Dated:
B-1-LB34SJ age, I duly served a copy of this subpoena
by person
by certified mail
by registered mail
by telegraph
used.) at
on
(Official title)
RIDER TO SUBPOENA DUCES TECUM NO. B-1-LB34SJ TO
NEW YORK COMMUNITIES FOR CHANGE
INSTRUCTIONS
truncated.
DB1/ 82499229.3
DEFINITIONS
DB1/ 82499229.3 2
fact-sheet.
Committee.
DB1/ 82499229.3 3
Pay Is Not Ok.
DB1/ 82499229.3 4
L. “Person” shall mean any natural person, corporation, partnership, association or
any other entity.
M. “SEIU” shall mean the Service Employees International Union, CTW, CLC, its
employees and agents (including all locals), supervisors, directors, officers, members, affiliates,
predecessors, successors, assigns, parents, and/or subsidiaries and any other person or entity
acting on the Union’s behalf.
N. “You” and “Your” shall mean New York Communities for Change, as well as all
affiliates, predecessors, successors, assigns, parents, and/or subsidiaries, employees, officers,
directors , and any other person or entity acting on New York Communities for Change’ behalf.

present.


4. Documents reflecting communications with any Charging Party and/or the SEIU
discussing or in any way referencing the Fast Food Campaign, McDonald’s, any
McDonald’s Franchisee, any McDonald’s-Brand Restaurant, the McDonald’s brand,
franchised and/or fast food businesses, and/or the allegations in the Consolidated
Complaint, including the joint employer allegations, during the period of January 1, 2009
to the present.
DB1/ 82499229.3 5

supervisory employee who works or worked at any McDonald’s-Brand Restaurant.



present, with the sole exception that this request does not seek identifying information
about any statutory employee of a McDonald’s or McDonald’s Franchisee restaurant.
the present.

Restaurant.
DB1/ 82499229.3 6
13. Documents discussing assignments, responsibilities, performance reviews, projects,
and/or job duties of Kendall Fells, Jonathan Westin, and Camille Rivera and documents
showing compensation paid or any type of remuneration given to any of these
individuals.
14. Job postings, job notices, independent contractor postings, and/or consultant postings
employer allegations, and regardless of whether such postings are for positions that You
consider employee positions.
15. Documents reflecting any communication of any responses, bids, or proposals –

including but not limited to documents in response to any Requests for Proposal (“RFP”),
Requests for Information (“RFI”), and requests for bids – concerning the Fast Food
allegations in the Consolidated Complaint, including the joint employer allegations.
16. Any Requests for Proposal (“RFP”), Requests for Information (“RFI”), and requests for
bids concerning the Fast Food Campaign, McDonald’s, any McDonald’s Franchisee, any
17. Communications, including but not limited to all invoices, bills and/or other statements of
work with any public relations consultants, researchers, analysts, lobbyists, media
consultants, and/or public relations strategy firm that discuss or in any way pertain to the
18. Documents concerning research, studies, or other publications that You sponsored,
financed or provided any financial assistance to that discuss or in any way reference the
19. Documents concerning research, studies, or other publications conducted or prepared by

You or in Your possession that any Charging Party and/or the SEIU sponsored, financed
or provided any financial assistance to that discuss or in any way reference the Fast Food
DB1/ 82499229.3 7
20. Documents showing any funding, corporate or other relationship between You and any
Charging Party and/or the SEIU, including but not limited to, any organizational charts
and/or payments made or received, whether paid directly or through another entity or
series of entities, and any agreements regarding such payments.

25. FOIA requests that You filed concerning or referencing McDonald’s, any McDonald’s
Franchisee, or any McDonald’s-Brand Restaurant, and any documents provided in
response to such requests.
26. FOIA requests in Your possession that another party filed referencing McDonald’s, any
McDonald’s Franchisee, or any McDonald’s-Brand Restaurant, and any documents
provided in response to such requests.
DB1/ 82499229.3 8

DB1/ 82499229.3 9
EXHIBIT I
3436
BEFORE THE
In the Matter of:
McDONALD'S USA, LLC, A JOINT

EMPLOYER, et al,
Case No. 02-CA-093893, et al
Respondents, 04-CA-125567, et al
13-CA-106490, et al
and 20-CA-132103, et al
25-CA-114819, et al
FAST FOOD WORKERS COMMITTEE AND 31-CA-127447, et al
UNION, CTW, CLC,
Charging Parties.
The above-entitled matter came on for hearing pursuant to
Notice, before THE HONORABLE LAUREN ESPOSITO, Administrative
Law Judge, at the National Labor Relations Board, Region 2,
26 Federal Plaza, Courtroom A-238, New York, New York, 10278,
on Monday, April 18, 2016, at 10:02 a.m.
BURKE COURT REPORTING, LLC

1044 Route 23 North, Suite 206
Wayne, New Jersey 07470
(973) 692-0660
3498
1 (General Counsel's Exhibit No. HR-363 received)
2 BY MR. FRISCH:
3 Q In your role as Pacific/Sierra HR director did you have
4 any roles or responsibilities in assisting franchisees in
5 responding to labor protests or demonstrations?
6 A I provided a point of contact.
7 Q What does that mean, to provide a point of contact?
8 A It just means that in some situations such as Oakland,
9 Berkley, Richmond, Sacramento there would be demonstrations
10 that often times would be violent. So they would have the
11 smashing of tables, they would -- confronting customers,
12 blocking driveways, blocking the overall parking lots. And
13 often times if the owner/operator may not be able to contact
14 local law enforcement, you know, they would reach out to me to
15 see if there was anything else that we could provide, not
16 directly, but maybe be able to provide additional support in
17 maybe getting additional law enforcement out there to them.
18 Q Did you have any other support other than assisting if

19 demonstrators were violent?
20 A There's nothing else I could have done from my office.
21 No.
22 Q I'm going to show you what's been marked as GC Exhibit HR-
23 302. This is an e-mail that you sent on July 23rd, 2013. Are
24 you familiar with this e-mail?
25 A Other than the fact that it has my name and I sent it, I

(973) 692-0660
5440
1 BEFORE THE
2 NATIONAL LABOR RELATIONS BOARD
3 ----------------------------------: Case Nos.:
4 In the Matter of: : 02-CA-093893, et al
5 McDONALD'S USA, LLC, A : 04-CA-125567, et al
6 JOINT EMPLOYER, et al, : 03-CA-106490, et a
7 Respondents, : 20-CA-132103, et al
8 And : 25-CA-114819, et al
9 FAST FOOD WORKERS COMMITTEE AND :
10 SERVICE EMPLOYEES INTERNATIONAL :
11 UNION, CTW, CLC, :
12 Charging Parties. :
13 ----------------------------------:
14
15 The above-entitled matter came on for hearing
16 Pursuant to Notice, before THE HONORABLE LAUREN ESPOSITO,
17 Administrative Law Judge, at the National Labor Relations
18 Board, Region 2, 26 Federal Plaza, Courtroom A-238,
19 New York, New York, 10278, on Tuesday, June 28, 2016, at
20 9:04 a.m.
21
22
23
24
25
26

(973) 692-0660
5569
1 A I know that we had a couple of -- not a couple, yeah, a
2 couple of conference calls and a meeting with owner operators
3 in 2012. There were several of them. We wanted to understand
4 what was going on. There was some demonstration of 70, 80
5 people storming our restaurants, harassing customers, harassing
6 the crew that works there, and also the owner operators. So we
7 were trying to understand what was going on, and actually they
8 closed several of the locations when that happened.
9 Q Thank you. And did you participate in any of those
10 conference calls or meetings?
11 A I participated probably in a couple of them because we
12 were trying to understand what was going on.
13 Q And based on the ones that you participated in, what
14 topics were discussed in those conference calls?
15 A Operators were trying to understand what was happening in
16 the restaurants and I know that part of the conversation was at
17 the beginning we spoke to our legal counsels, the operators
18 spoke to their legal counsel to try to understand what was

19 happening.
20 Q With the fast food forward campaign?
21 A With the demonstrations in general.
22 Q Okay. And those related to fast food forward, correct?
23 Oh, I'm sorry, you said they were related to Fight for 15,
24 correct?
25 A Yes.

(973) 692-0660
6456
1 BEFORE THE
3 ----------------------------------: Case Nos.:
6 JOINT EMPLOYER, et al, : 03-CA-106490, et al
8 And : 25-CA-114819, et al
13 ----------------------------------:
14
19 New York, New York, 10278, on Monday, July 11, 2016, at
20 10:01 a.m.
21
22
23
24
25
26

(973) 692-0660
6632
1 Q Okay. This is an e-mail that you sent that in the body
2 says "attached is a list of restaurants that have been impacted
3 with activity over the last several months. The ones
4 highlighted have had the more intensive activity or repeated
5 activity." Why did you send this to those individuals in the
6 to and cc field?
7 A They could've requested the information, I'm not really
8 sure why I sent it. They could've requested it.
9 Q Do you know if they did anything with the information?
10 A No, I'm not even sure whether they would've requested it.
11 Q When you state "intense activity or repeated activity,"
12 what activity do you refer to?
13 A Again demonstrations and rallies in front of restaurants,
14 storming the restaurant, you know, banging on the windows,
15 intimidating customers and employees, calling employees out by
16 name, you know, trying to get the employees to join in a rally,
17 if employees were walking in on their shift, they were pulling
18 employees into the rally.

19 Q When it says attached a list of restaurants, would the
20 restaurants include owner operator restaurants?
21 A They would be all owner operator restaurants, yes.
22 MR. HERLANDS: Move for the admission of HR-721 and I just
23 want to note that this is exactly how it was produced to us and
24 there was no attachment that came with it.
25 MR. GOLDSMITH: No objection, Your Honor.

(973) 692-0660
9630
1 BEFORE THE
3 ----------------------------------: Case Nos.:
8 And : 25-CA-114819, et al
13 ----------------------------------:
14
19 New York, New York, 10278, on Thursday, October 13, 2016, at
20 10:02 a.m.
21
22
23
24
25
26

(973) 692-0660
9790
1 Q Can you explain for the Court how you broke your foot?
2 A Yes. I was assigned to visit one of several restaurants
3 on certain days that there were activities, which we spoke
4 about before. I happened to be at 170th and Broadway, when
5 there was a protest and a rally that had taken place at the
6 store.
7 A large crowd was gathering, they were vocal, they had
8 bullhorns, signs, the roving security was called, and they came
9 to help us protect ourselves and the restaurant. The
10 protestors begin to try to enter the restaurant forcibly. One
11 of my or one of the store managers and the director tried to
12 secure a side door, I went up to help them, and the protestors
13 were ripping the door, opening it, striking the store manager's
14 hands and eventually got in.
15 The side door was on an elevated platform, and when they
16 charged into the restaurant, they knocked me backwards, down
17 the stairs and that's where I broke my foot. The protestors
18 proceeded to come into the store, jumped on top of tables,

19 started yelling with bullhorns and completely took over the
20 restaurant.
21 MR. LINAS: Thank you, Mr. Greene. I have nothing
22 further, Your Honor.
23 JUDGE ESPOSITO: Okay. Mr. Hirsch?
24 MR. HIRSCH: Yes, briefly, Your Honor.
25 CROSS-EXAMINATION

(973) 692-0660
13592
1 BEFORE THE
3 ----------------------------------: Case Nos.:
8 And : 25-CA-114819, et al
13 ----------------------------------:
14
19 New York, New York, 10278, on Tuesday, January 31, 2017, at
20 10:01 a.m.
21
22
23
24
25
26

(973) 692-0660
13680
1 hand?
2 JOSE CARABALLO, WITNESS, SWORN
3 (THROUGH INTERPRETER)
4 JUDGE ESPOSITO: Okay. Thank you, sir. Go ahead, Ms.
5 Lancia.
6 BY MS. LANCIA:
7 Q Good afternoon. Are you currently employed?
8 A Yes.
9 Q Where do you work?
10 A An organization called New York Community for Change.
11 Q What is New York Community for Change?
12 A It's an organization that organizes humane groups. And we
13 also help workers get unionized.
14 Q And what do you do for the New York Community for Change?
15 A I organize people that work for fast food chains.
16 Q When did you begin working as an organizer for New York
17 Community for Change?
18 A November of 2012.
19 Q And what did you do prior to organizing with New York
20 Community for Change?
21 A I worked in McDonald's.
22 Q And how long did you work at McDonald's?
23 A Like four years.
24 Q And which restaurant did you -- or restaurants did you
25 work at?

(973) 692-0660
14091
1 BEFORE THE
3 ----------------------------------: Case Nos.:
8 And : 25-CA-114819, et al
13 ----------------------------------:
14
19 New York, New York, 10278, on Tuesday, February 7, 2017, at
20 10:25 a.m.
21
22
23
24
25
26

(973) 692-0660
14158
1 MR. SHAPIRO: Thank you.
2 JUDGE ESPOSITO: Could you please state and spell your
3 name for the record.
4 MR. SHAPIRO: Yes, Ben Shapiro, B-e-n, S-h-a-p-i-r-o.
5 JUDGE ESPOSITO: Can you raise your right hand, please,
6 Mr. Shapiro?
7 MR. SHAPIRO: Yes.
8 BEN SHAPIRO, WITNESS, SWORN
9 JUDGE ESPOSITO: Thank you, sir. Go ahead, Mr. Rowe.
10 DIRECT EXAMINATION
11 BY MR. ROWE:
12 Q Good afternoon.
13 A Good afternoon.
14 Q Let me start by asking if you're familiar with the
15 organization New York Communities for Change.
16 A Yes, I used to work for them.
17 Q And is New York Communities for Change also known by the
18 acronym NYCC?
19 A Yes, it is.
20 Q Can you describe what NYCC is?
21 A NYCC is a community based organization based in New York,
22 they focus on organization low income communities to fight for
23 a better education, better jobs, and fair housing.
24 Q You mention that you worked -- you used to work NYCC. Do
25 you know the time you started and the time you ended with them?

(973) 692-0660
14180
1 A I mean, honestly the workers were involved, organizing the
2 union, I mean, it was kind of not just -- I don't think it was
3 just one person, but it was, you know, we had worker meetings,
4 we had organizer meetings where these things were discussed and
5 that's, you know, what came out of that.
6 Q Was it somebody from NYCC who was dictating the strategy
7 or was it another organization?
8 MR. WISSINGER: Objection, asked and answered.
9 MS. DAVIS: He can answer.
10 JUDGE ESPOSITO: To the best of your knowledge, sir.
11 THE WITNESS: Yeah, I don't think anyone personally --
12 like I said, I don't think anyone personally was dictating it.
13 BY MS. DAVIS:
14 Q Was the SEIU involved in the strategy?
15 MR. WISSINGER: Asked and answered.
16 JUDGE ESPOSITO: No, this is a different question because
17 she's asking about involvement.
18 THE WITNESS: Yeah, they were involved, SEIU and NYCC

19 partnered up on the campaign.
20 BY MS. DAVIS:
21 Q Who did you take your orders from?
22 A I wouldn't phrase it that way, but it was a combination of
23 people, it was a combination of some of the organizers, and
24 honestly a lot of it did come through team meetings at NYCC.
25 Q Who -- which individuals that you spoke to in these

(973) 692-0660
EXHIBIT J
250 VESEY STREET • NEW YORK, NEW YORK 10281.1047
TELEPHONE: +1.212.326.3939 • FACSIMILE: +1.212.755.7306
Direct Number: (212) 326-3649

[email protected]
July 28, 2017
VIA ELECTRONIC MAIL
Mr. Jamie Rucker

National Labor Relations Board, Region 2
26 Federal Plaza, Suite 3614
New York, New York 10278-3699
[email protected]
Re: McDonald’s USA, LLC, et al., Case Nos. 02-CA-093893, et al.
Dear Mr. Rucker:
Please be advised that McDonald’s USA, LLC has retained and may call Professor
Chekitan Dev to provide expert testimony during the Company’s affirmative case in the above-
referenced matter. The topics on which Professor Dev may testify include, but are not limited to,
branding, brand protection, and McDonald’s brand, culture, and/or franchising relationships.
Professor Dev is an Associate Professor of Strategic Marketing and Brand Management at the
Cornell University School of Hotel Administration, and he frequently is retained to provide
expert testimony on brand management and related matters.
Very truly yours,
/s/ Willis J. Goldsmith

Willis J. Goldsmith
cc: Counsel of Record
ALKHOBAR AMS TERDAM ATL ANTA BEIJING BO S TON BRISBANE BRUSSEL S CHICAGO CLEVEL AND CO LUMBUS DALL AS
DETROIT DUBAI DÜSSELDORF FRANKFUR T HONG KONG HOUS TON IRVINE JEDDAH LONDON LOS ANGELES MADRID
MEXICO CIT Y MIAMI MIL AN MINNEAPOLIS MOSCOW MUNICH NEW YORK PAR IS PER TH PITTSBURGH RIYADH
SAN DIEGO SAN FRANCISCO SÃO PAULO SHANGHAI SILICON VALLEY S INGAPO RE S YDNEY TAIPEI TOKYO WASHINGTON
EXHIBIT K
ADMINISTRATIVE LAW JUDGE LAUREN ESPOSITO

et al.
and 04-CA-125567, et al.

MCDONALD’S USA, LLC’S MOTION FOR RECONSIDERATION AND/OR

CLARIFICATION OF ADMINISTRATIVE LAW JUDGE’S SEPTEMBER 5, 2017
ORDER REGARDING PRODUCTION OF EXPERT’S REPORT
For reasons stated in its prior papers – i.e., because NLRB litigants are required to furnish
only prior notice of expert testimony – McDonald’s USA, LLC respectfully requests that this
Court reconsider its September 5, 2017 Order, which required the Company to additionally
produce and furnish an expert report. Should this Court decline to withdraw the Order, however,
McDonald’s respectfully requests that the Court: (a) clarify that the Order’s obligations extend
to all parties who wish to use a testifying expert (including a rebuttal expert); and (b) tailor the
requirements of the Order to the purposes behind FED.R.CIV.P. 26(a). See, e.g., FED.R.CIV.P. 26,
Advisory Committee notes (1993) (purpose of expert disclosure is to afford opposing parties a
reasonable opportunity to prepare for effective cross-examination and to arrange for expert
testimony from other witnesses).1
In particular, the Order now places requirements only on McDonald’s. (See Order at 8
(ordering McDonald’s to “provide an expert’s report in connection with the testimony of
Professor Chekitan S. Dev in the format described in Federal Rule of Civil Procedure
1
To be clear, the Company’s ultimate position remains that set out in its earlier papers. To the extent the
Order is not withdrawn, McDonald’s reserves its right to request special permission to appeal the Order pursuant to
Section 102.26 of the Board’s Rules and Regulations.
1
26(a)(2)(B) to myself and to all other parties in this matter thirty days in advance of the
anticipated date of Professor Dev’s testimony”)). The Order places no requirements on any other
party, notwithstanding the General Counsel’s suggestion in the Agency’s papers that it may
retain a rebuttal expert. See General Counsel’s August 12, 2017 Motion to Compel Disclosure of
Expert Testimony at 9 (noting that the General Counsel may “obtain a relevant expert and use
that person in preparing for cross-examination and possible rebuttal”). But FED. R. CIV. P.
26(a)(2), which formed much of the basis for the Court’s Order, sets forth obligations on all
parties to civil litigation, including parties who employ rebuttal experts. Therefore, and while
the Company believes that the Order should be withdrawn, under the logic of the Order it should
have included expert notice and expert report requirements applicable to the General Counsel or
any other party who may employ a rebuttal expert.
With that in mind, McDonald’s respectfully requests that the Court make the following
amendments to the Order (to the extent that it is not withdrawn):
First, this Court should amend the Order to impose a fixed date for the General Counsel
or any other party to disclose any rebuttal experts. See FED. R. CIV. P. 26(a)(2)(D) (providing
that an expert called to “contradict or rebut evidence on the same subject matter” should be
identified “within 30 days of the other party’s disclosure”). McDonald’s disclosed the identity of
Professor Dev and the subject matter of his potential testimony on July 28, 2017. Given that, the
Company respectfully requests that this Court: (a) impose a parallel requirement on all of the
parties in this case, to identify to McDonald’s any rebuttal expert that they may call; (b) order
that this identification be delivered no later than thirty days from the issuance of an Order
granting this Motion for Reconsideration; and (c) order that any failure to identify by name a
2
rebuttal expert who will testify on behalf of the party within thirty days shall constitute a waiver
of that party’s right to call an expert in any phase of the trial of this matter.2
Second, this Court should amend the Order to implement an obligation that any party
who gives notice of intent to use an expert must produce and deliver an expert report to all other
parties. See FED. R. CIV. P. 26(a)(2)(B) (requiring that disclosures under FED. R. CIV. P.
26(a)(2)(A) be accompanied by a written report).
Third, this Court should amend the Order to require that any expert report produced by
the General Counsel and/or Charging Parties also meet the requirements of FED. R. CIV. P.
26(a)(2)(B), including: (1) a complete statement of all opinions the witness will express and the
basis and reasons for them; (2) the facts or data considered by the witness in forming them; (3)
any exhibits that will be used to summarize or support them; (4) the witness’ qualifications,
including a list of all publications authored in the previous ten years; (5) a list of all other cases
in which, during the previous four years, the witness testified as an expert at trial or by
deposition; and (6) a statement of the compensation to be paid for the study and testimony in the
case. FED. R. CIV. P. 26(a)(2)(B)(i) – (vi).
Fourth, this Court should amend the Order so that its timing requirements follow FED. R.
CIV. P. 26(a)(2)(D), as modified by the Court’s Order. In other words, the ALJ’s Order required
McDonald’s to produce an expert report to all parties thirty days prior to Professor Dev’s
anticipated date of testimony. Correspondingly, the Court should order any party wishing to use
a rebuttal expert to produce an expert report to McDonald’s no later than 30 days after receipt of
2
All parties to this case have had notice of McDonald’s retention of Professor Dev, as well as the potential
subject matter of his testimony, since July 28, 2017. Therefore, in effect, by the time their disclosures are due the
parties will have had nearly three months in which to pick an expert.
3
McDonald’s expert report. Cf. FED. R. CIV. P. 26(a)(2)(D)(ii) (calling for production of rebuttal
expert reports “within 30 days after the other party’s”).
Fifth, this Court should amend the Order to eliminate any obligation on the parties to
submit expert reports to the Court. Under the requirements of FED. R. CIV. P. 26(a)(2), the
parties exchange expert reports with each other, and do not provide them to the federal judge
presiding over the case at issue. See, e.g., FED. R. CIV. P. 26(a)(2)(A) (requiring that the parties
disclose to other parties); FED. R. CIV. P. 26(a)(2), Advisory Committee notes (1993) (imposing
an “additional duty to disclose information regarding expert testimony sufficiently in advance of
trial that opposing parties have reasonable opportunity to prepare for effective cross examination
and perhaps arrange for expert testimony from other witnesses.”).
Sixth, this Court should amend the Order to clarify that it will determine the admissibility
and probative value of expert testimony solely on the basis of live testimony. See, e.g., 29 FED.
PRAC. & PROC. EVID. § 6264.3 (2d ed.) (2017) (“[I]t is often premature for a court to find a
witness qualified to testify as an expert even after that witness’s credentials have been fully
presented. This is because, until specific questions are posed to the witness, the court cannot
know if the witness is qualified as an expert in the area of inquiry.”); Berry v. City of Detroit, 25
F.3d 1342, 1351 (6th Cir. 1994) (similar, noting that evaluation of expert qualifications should be
based on testimony demonstrating that “the precise question on which he will be asked to opine
is within his field of expertise”) (quoting U.S. v. Kozminski, 821 F.2d 1186, 1219-1220 (6th Cir.
1987) (Guy, J., dissenting) (emphasis in original)).
Seventh, this Court should amend the Order to clarify that no party’s expert report will be
admitted into evidence, as they will be needlessly cumulative of the experts’ testimony. See, e.g.,
Mengele v. Patriot II Shipping Corp., 2002 WL 237847, at *2 (S.D.N.Y. Feb. 19, 2002)
4
(granting motion in limine to exclude expert report from evidence, in part, where it was simply
cumulative of proffered expert testimony); Engeretsen v. Fairchild Aircraft Corp., 21 F.3d 721,
728-29 (6th Cir. 1994) (noting that Fed.R.Evid. 702 “permits the admission of expert opinion
testimony not opinions contained in documents prepared out of court”).
CONCLUSION
For all the foregoing reasons, this Court should either withdraw its Order of September 5,
2017, or amend as outlined above.
5
Dated: September 13, 2017 Respectfully submitted,
s/ Willis J. Goldsmith
Willis J. Goldsmith
Doreen S. Davis
Ilana R. Yoffe
Justin D. Martin
JONES DAY
250 Vesey Street
New York, New York 10281
Tel: 212.326.3939
Fax: 212.755.7306
[email protected]
[email protected]
[email protected]
[email protected]
Michael S. Ferrell
Jonathan M. Linas
E. Michael Rossman
JONES DAY
77 West Wacker Drive
Chicago, Illinois 60601
Tel: 312.269.4245
Fax: 312.782.8585
[email protected]
[email protected]
[email protected]
Attorneys for McDonald’s USA, LLC
6
The undersigned, an attorney, affirms under penalty of perjury that on September 13,
2017, he/she caused a true and correct copy of McDonald’s USA, LLC’s Motion for
Reconsideration and/or Clarification of Administrative Law Judge’s September 5, 2017 Order
Regarding Production of Expert’s Report to be electronically filed using the National Labor
Relations Board’s Internet website and to be served upon counsel for the Parties by e-mail at the
following addresses designated for this purpose:
Gwynne Wilcox, Esq. Zachary Herlands, Esq.

Micah Wissinger, Esq. Alejandro Ortiz, Esq.
David Slutsky, Esq. Nicholas Rowe, Esq.
Alexander Rabb, Esq. Jamie Rucker, Esq.
Levy Ratner, P.C. Jacob Frisch, Esq.
80 Eighth Ave., Eighth Floor Nicole Lancia, Esq.
New York, NY 10011-7175 National Labor Relations Board, Region 2
[email protected] 26 Federal Plaza, Room 3614
[email protected] New York, NY 10278
[email protected]
[email protected]
[email protected]
[email protected]
Robert Brody, Esq. David P. Dean, Esq.

Kate Bogard, Esq. Kathy L. Krieger, Esq.
Alexander Friedman, Esq. Ryan E. Griffin, Esq.
Brody and Associates, LLC James & Hoffman, PC
120 Post Road West, Suite 101 1130 Connecticut Ave, NW, Suite 950
Westport, Connecticut 06880 Washington, DC 20036
Judith A. Scott Mary Joyce Carlson

Service Employees International Union 1100 New York Avenue, Suite 500 West, NW
1800 Massachusetts Avenue, NW Washington, DC 20005
Washington, DC 20036-1806 [email protected]
[email protected]
7
Michael J. Healy Deena Kobell, Esq.
Healey & Hornack, P.C. National Labor Relations Board, Region 04
247 Fort Pitt Blvd., 4th Floor 615 Chestnut Street, 7th floor
Pittsburgh, PA 15222 Philadelphia, PA 19106-4404
Claude Schoenberg Joseph A. Hirsch

Schoenberg Law Office Hirsch & Hirsch
2 Bala Plaza One Belmont Avenue
Suite 300 8th Floor, Suite 8001
Bala Cynwyd, PA 19004 Bala Cynwyd, PA 19004
Edward Castillo, Esq. Barry M. Bennett

Christina Hill, Esq. George A. Luscombe, III
Kevin McCormick, Esq. Dowd, Bloch, Bennett & Cervone
Sylvia Taylor, Esq. 8 S. Michigan Ave, Fl 19
National Labor Relations Board, Region 13 Chicago, IL 60603-3315
209 South La Salle Street, Suite 900 [email protected]
[email protected]
[email protected]
Steve A. Miller Fredric Roberson, Esq.

James M. Hux, Jr. National Labor Relations Board, Region 25
Fisher & Phillips LLP 575 N. Pennsylvania St. Suite, 238
10 S Wacker Dr., Ste 3450 Indianapolis, IN 46205-1520
[email protected]
[email protected]
Jeffrey A. Macey Sean Graham

Robert A. Hicks Weinberg Roger & Rosenfeld
Macey Swanson and Allman 800 Wilshire Boulevard, Suite 1320
445 N Pennsylvania St., Ste 401 Los Angeles, CA 90017-2623
Indianapolis, IN 46204-1893 [email protected]
[email protected]
[email protected]
Richard McPalmer, Esq. Ashley Ratliff

National Labor Relations Board, Region 20 Best, Best & Krieger
901 Market Street, Suite 400 500 Capitol Mall
San Francisco, CA 94103 Suite 1700
[email protected] Sacramento, CA 95814
[email protected]
8
Roger Crawford Jonathan Cohen
Best, Best & Krieger Eli Naduris-Weissman
2855 E. Guasti Road, Suite 400 Rothner, Segall & Greenstone
Ontario CA, 91761 510 South Marengo Avenue
[email protected] Pasadena, CA 91101-3115
[email protected]
[email protected]
Brian Gee, Esq.

Rudy Fong-Sandoval, Esq.
John Rubin, Esq.
Anne White, Esq.
11500 W. Olympic Boulevard, Suite 600
Los Angeles, CA 90064
[email protected]
[email protected]
[email protected]
[email protected]
Louis P. DiLorenzo, Esq. Thomas M. O’Connell

Tyler T. Hendry, Esq. Best, Best & Krieger
Patrick V. Melfi, Esq. 3390 University Avenue
Bond, Schoeneck & King, PLLC 5th Floor
600 Third Avenue Riverside, CA 92501
New York, New York 10016 [email protected]
[email protected]
[email protected]
[email protected]
s/ Justin D. Martin
An Attorney for McDonald’s USA, LLC
9
EXHIBIT L
McDONALD’S USA, LLC
and Cases 02-CA-093893, et al.

04-CA-125567, et al.
GENERAL COUNSEL’S LIMITED OPPOSTION TO MCDONALD’S USA, LLC’S MOTION

FOR RECONSIDERATION AND/OR CLARIFICATION OF ADMINSTRATIVE LAW
JUDGE’S SEPTEMBER 5, 2017 ORDER REGARDING PRODUCTION OF EXPERT’S
REPORT
Counsel for the General Counsel (“General Counsel”) submits this Limited Opposition to
McDonald’s USA, LLC’s (“McDonald’s”) motion for reconsideration or amendment of the
Court’s September 5, 2017 order. Initially, the Court should deny McDonald’s motion for
reconsideration because it raises no issues or arguments not already fully considered. Further,
General Counsel opposes several of McDonald’s requests to amend the Court’s September 5,
2017 Order.1
General Counsel opposes McDonald’s first request, that the Court require General
Counsel or any other party to identify any rebuttal experts within 30 days of the Court’s Order
regarding McDonald’s latest motion. Rather, General Counsel submits it must identify any
rebuttal expert within 30 days after receipt of McDonald’s expert report.
Professor Dev is an expert under Fed. R. Civ. P. 26(a)(2)(B) (“Rule 26(a)(2)(B)”) and the
Court has ordered McDonald’s to provide an expert’s report in accordance with that rule. The
plain text of that rule states that disclosure of the identity of an expert “must be accompanied by
a written report.” Thus, Rule 26 intends that the disclosure of expert testimony involve both the
1
McDonald’s enumerates seven requested amendments. General Counsel does not object to McDonald’s
second, third and fourth proposed additions.
witness’s identity as well as his or her report. Courts have noted that “[d]isclosure of expert
testimony within the meaning of the rule contemplates not only the identification of the expert,
but also the provision of a written report containing a complete statement of all opinions and the
basis and reasons therefor.”2 Thus, “disclosure” under Rule 26(a)(2)(B) includes both the
identity of the expert and his or her report. McDonald’s failed to cite a single case or authority
for the opposite proposition, i.e., that “disclosure” encompasses only the identity of the expert.
Further, under Fed. R. Civ. P. 26(a)(2)(D)(ii), where evidence is intended solely to
contradict or rebut evidence on the same subject matter, the 30-day deadline for parties to make
any disclosures concerning possible rebuttal experts is not triggered until the original
disclosures are made pursuant to Rule 26(a)(2)(B) or (C).3 Again, McDonald’s has not cited any
authority to the contrary. Because McDonald’s has yet to complete its expert disclosure under
Rule 26(a)(2)(B), the General Counsel’s deadline for its rebuttal expert disclosures under Rule
26(a)(2)(D)(ii) has not started to run. Once McDonald’s produces its expert report, General
Counsel will have 30 days to make its disclosures regarding any rebuttal expert, including both
the identity of such expert and the accompanying report.
Accordingly, General Counsel does not object to an Order obligating it and other parties to
disclose the identity of any rebuttal expert witness, accompanied by a written report that meets
the requirements of Rule 26(a)(2)(B), within 30 days after receipt of McDonald’s expert report.
As such, General Counsel does not object to McDonald’s second, third, and fourth requests.
2
Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008). See also Anderson v. Seven Falls Co., 2013 WL
3771300, at *5 (D. Col. 2013) (“Rule 26(a)(2) plainly contemplates that disclosure of the required
information must be contemporaneous with the identification of the expert witness.”)
3
The rationale behind this limitation makes sense, as it is impracticable to rebut an expert without
knowing the contents of his or her report. See Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 44
(S.D.N.Y. 2016) (“The scope of a rebuttal is limited to the same subject matter encompassed in the
opposing party's expert report. . . .”) (internal citations omitted).
However, the General Counsel does oppose McDonald’s fifth request, that the Court
“amend the Order to eliminate any obligation on the parties to submit expert reports to the
Court.” As Your Honor stated in the Order:
An expert's report will also be of assistance to me as the finder of fact in this

proceeding. An expert's report will aid me in understanding Professor Dev’s area of
expertise in general, as well as his specific opinion. An expert's report will also be
helpful should issues arise regarding the permissibility of Professor Dev’s testimony
under FRE 702, and regarding the disclosure of facts or data pursuant to FRE 705.
In addition to being helpful regarding those issues, a report can also be used by the Court to
track an expert’s testimony and keep it within bounds of the subject matter contained in the
report.4
The General Counsel also opposes McDonald’s sixth request, viz., that the Court “amend
the Order to clarify that it will determine the admissibility and probative value of expert
testimony solely on the basis of live testimony.” That request asks the Court to disregard its
obligation under Daubert to serve as gatekeeper5 and commit to hearing any purported expert’s
testimony, regardless of any lack of relevance, lack of probative weight, or tendency to create
unfair prejudice, confusion, or waste of time revealed by the report required by Your Honor’s
September 5, 2017 order.
As noted in General Counsel’s initial motion,6 McDonald’s bears the burden of
establishing that its proposed expert testimony is admissible.7 The report required by Fed. R.
4
See above at fn. 3 and below at fn. 11.
5
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 152 (1999) (“To say this is not to deny the importance of Daubert's gatekeeping
requirement”); Fed. R. Evid. 702 Advisory Committee Notes (“In Daubert the Court charged trial judges
with the responsibility of acting as gatekeepers to exclude unreliable expert testimony.”)
6
General Counsel’s Motion to Compel Disclosure of Expert Testimony or, Alternatively, Preclude
Testimony by Experts, Including Professor Chekitan Dev, on Behalf of Respondent McDonald’s USA,
LLC, p. 2 (Aug. 12, 2017).
Civ. P. 26(a)(2)(B) can be useful to the court in determining whether McDonald’s has done so—
thereby fulfilling the Court’s gatekeeping function8—because it could reveal that the proffered
testimony fails to meet the requirements for admissibility, e.g., Fed. R. Evid. 702 or 104. This
truth was acknowledged by this Court in its September 5 Order and by other courts previously. 9
The authorities McDonald’s cites are not to the contrary. While a conclusion that an
expert is qualified as to one or more areas of expertise does not serve to make all questions to
that expert proper—she or he may, for example, be asked questions outside of his or her area of
expertise10—an expert’s report may conclusively establish, inter alia, that he or she is not
qualified to testify as to material set forth in that report. Because the expert’s testimony is
limited to the scope of that report, it can properly serve to preclude proposed testimony even
before specific questions are asked.11
7
Fed. R. Evid. 702 advisory committee notes (2000 amendments) (stating that the rule entails that every
instance of expert testimony presents questions of admissibility for the trial court to decide, consistent
with Fed. R. Evid 104, and that the proponent of the evidence has the burden of establishing its
admissibility by a preponderance of the evidence); U.S. v. Monteiro, 407 F.Supp.2d 351, 356–358 (D.
Mass. 2006).
8
See, e.g., Dodge v. Cotter Corp., 328 F.3d 1212, 1226 (10th Cir. 2003) (emphasizing the importance of
the trial court making detailed findings to satisfy its gatekeeping function); see also Lara v. Delta Int'l
Mach. Corp., 174 F. Supp. 3d 719, 734 (E.D.N.Y. 2016) (“to uphold its gatekeeping function, a court
should exclude expert testimony where it is speculative or conjectural, or if it is based on assumptions that
are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges
comparison.”) (internal quotation marks omitted).
9
See e.g., McKnight v. Purdue Pharma Co., 422 F. Supp. 2d 756, 758 (E.D. Tex. 2006) (“An expert's
report prepared in accordance with the requirements of Rule 26(a)(2) should also serve a purpose which
may not have been contemplated when the rule was adopted, namely, permitting the court to evaluate the
expert's testimony under Fed.R.Evid. 702 and the Daubert-Kumho Tire line of cases.”).
10
That is the import of McDonald’s quotation from 29 Fed. Prac. & Proc. Evid. § 6264.3 (2d ed.) (2017).
11
See, e.g., Advanced Analytics, Inc. v. Citigroup Global Markets, Inc., 301 F.R.D. 31, 36 (S.D.N.Y.
2014) (citing cases and quoting In re Kreta Shipping, S.A., 181 F.R.D. 273, 275 (S.D.N.Y. 1998) (“Expert
testimony exceeding the bounds of the expert’s report is excludable pursuant to Rule 37(c)(1)”)).
Berry v. City of Detroit12 says nothing to the contrary. In fact, the Sixth Circuit there
(1) reviewed a trial that occurred before the relevant amendment to Rule 2613 and (2) counseled
“against putting some general seal of approval on an expert after he has stated his general
qualifications.”14 Thus, the Berry court was not concluding that trial courts must always await
specific questions to rule on whether a proffered expert has been properly qualified, but rather
that the trial court had failed to properly exercise its gatekeeping duty to exclude inadmissible
testimony.15
Finally, the General Counsel opposes Respondent’s seventh request, that Judge Esposito
“amend the Order to clarify that no party’s expert report will be admitted into evidence, as [it
would] be needlessly cumulative of the expert[’s] testimony.” While the General Counsel
generally agrees that, if admissible, an expert’s in-person testimony, including cross-
examination, should serve as the primary basis for evaluating any conclusions he or she may
reach, that agreement does not warrant blanket exclusion of an expert’s report from the record.
For instance, the report could be properly introduced into evidence to impeach the expert’s
conclusions or reasoning. As with all potential evidence, the question of its admissibility should
12
25 F.3d 1342 (6th Cir. 1994).
13
See Berry, 25 F.3d at 1351 (“Daubert was decided after the trial in the instant case.”)
14
Id.
15
Id. at 1351–1352 (holding that trial court improperly accepted witness’ qualifications as sufficient to
permit his testimony and noting that it will sometimes be possible to prohibit a witness from testifying
where he or she lacks the requisite qualifications).
turn on whether it is relevant to one or more issues in the case and not excludable on other
grounds, e.g., needlessly cumulative or hearsay not admissible under an exception.16
Again, the authorities McDonald’s cites fail to support its argument. The decision in
Mengele, for example, was rooted in the fact that the purported expert was not going to testify
and be subject to cross-examination: “Admission of the report, standing alone, as evidence of
Keehn's opinion on causation would be unfairly prejudicial to Defendants, who would not have
the opportunity to test his qualifications to render such an opinion or cross-examine his
reasoning and interpretation of the questions of fact on which the opinion was based.”17 Thus,
the court was not ruling on admission of an expert report under all circumstances, but only as a
substitute for in-person testimony. Similarly, Engebretsen v. Fairchild Aircraft Corp. did not
rule on whether there could be any basis for admitting an expert report, but only on whether Fed.
R. Evid. 702 permitted the introduction of otherwise inadmissible materials.18
In short, until the possible bases for admission of the expert report are known and can be
considered, it is premature to rule the report inadmissible.
For all the foregoing reasons, this Court should deny McDonald’s Motion to Reconsider
16
Of course a proffered piece of evidence cannot be deemed “cumulative” until other evidence on the
issue has been presented. This tautology is just one example of why the court should decline to rule on the
admissibility of a yet-to-be produced report before it is offered into evidence.
17
Mengele v. Patriot II Shipping Corp., 2002 WL 237847, at *2 (S.D.N.Y. Feb. 19, 2002)(emphasis
added).
18
21 F.3d 721, 728–729 (6th Cir. 1994).
Your Honor’s September 5th Order and at least its first, fifth, sixth, and seventh proposed
amendments to that order for the reasons set forth above.
Dated: New York, New York

September 18, 2017
/s/ Jacob Frisch and Alejandro Ortiz
Jacob Frisch
Alejandro Ortiz
New York, NY 10278
[email protected]
[email protected]
(212) 264-0300
Counsel for the General Counsel
The undersigned, an attorney for the General Counsel, hereby certifies that he caused a true and correct
copy of the above General Counsel’s Limited Opposition to McDonald’s USA, LLC’s Motion for
Reconsideration and/or Clarification of Administrative Law Judge’s September 5, 2017 Order Regarding
Production of Expert’s Report to be served on September 18, 2017 via electronic mail at the following
addresses:
Doreen S. Davis, Esq. Jonathan M. Linas, Esq.

Willis J. Goldsmith, Esq. E. Michael Rossman, Esq.
Ilana R. Yoffe, Esq. Jones Day
Justin Martin, Esq. 77 W. Wacker Drive, Suite 3500
Jones Day Chicago, IL 60601-1692
250 Vesey St. [email protected]
New York, NY 10281-1047 [email protected]
[email protected]
[email protected] Claude Schoenberg, Esq.
[email protected] Schoenberg Law Office
Two Bala Plaza, Suite 300
Barry M. Bennett, Esq. Bala Cynwyd, PA 19004
George A. Luscombe, III, Esq. [email protected]
Dowd, Bloch, Bennett & Cervone
8 S. Michigan Avenue, 19th Floor Steve A. Miller, Esq.
Chicago, IL 60603-3315 James M. Hux, Jr., Esq.
[email protected] Fisher & Phillips LLP
[email protected] 10 S. Wacker Drive, Suite 3450
Chicago, IL 60606-7592
Robert Brody, Esq. [email protected]
Kate Bogard, Esq. [email protected]
Alex Friedman, Esq.
Lindsay Rinehart, Esq. Mary Joyce Carlson, Esq.
Brody and Associates, LLC 1100 New York Avenue, NW
120 Post Road West, Suite 101 Suite 500 West
Westport, CT 06880 Washington, DC 20005
[email protected]
[email protected] Jonathan Cohen, Esq.
[email protected] Eli Naduris-Weissman, Esq.
Rothner, Segall & Greenstone
Gwynne Wilcox, Esq. 510 S. Marengo Avenue
Micah Wissinger, Esq. Pasadena, CA 91101-3115
David Slutsky, Esq. [email protected]
Levy Ratner, P.C. [email protected]
80 Eighth Avenue, Eighth Floor
New York, NY 10011-7175 Jeffrey A. Macey, Esq.
[email protected] Robert A. Hicks, Esq.
[email protected] Macey, Swanson and Allman
[email protected] 445 N. Pennsylvania Street, Suite 401
Indianapolis, IN 46204-1893
Michael S. Ferrell, Esq. [email protected]
[email protected] David P. Dean, Esq.
Kathy L. Krieger, Esq.
Sean D. Graham, Esq. James & Hoffman, PC
Weinberg Roger & Rosenfeld 1130 Connecticut Ave, NW, Suite 950
800 Wilshire Boulevard, Suite 1320 Washington, DC 20036
Los Angeles, CA 90017-2623 [email protected]
Roger K. Crawford, Esq. Deena Kobell, Esq.

Best, Best & Krieger LLP National Labor Relations Board, Region 04
2855 E. Guasti Road, Suite 400 615 Chestnut Street, 7th floor
Ontario, CA 91761 Philadelphia, PA 19106-4404
Thomas O’Connell, Esq. Edward Castillo, Esq.

Ashley Ratliff, Esq. Christina Hill, Esq.
Jacqueline Yaeger, Esq. Elizabeth Cortez, Esq.
Best, Best & Krieger Sylvia Taylor, Esq.
3390 University Avenue, 5th Floor National Labor Relations Board, Region 13
Riverside, CA 92501 209 South La Salle Street, Suite 900
[email protected] Chicago, IL 60604-1443
[email protected]
Louis P. DiLorenzo, Esq. [email protected]
Tyler T. Hendry, Esq.
Patrick V. Melfi, Esq. Richard McPalmer, Esq.
Bond, Schoeneck & King, PLLC National Labor Relations Board, Region 20
600 Third Avenue 901 Market Street, Suite 400
New York, New York 10016 San Francisco, CA 94103
[email protected]
[email protected] Brian Gee, Esq.
John Rubin, Esq.
Nicole Berner, Esq. Rudy Fong-Sandoval, Esq.
1800 Massachusetts Avenue, N.W. National Labor Relations Board, Region 31
Washington, DC 20036 11500 W. Olympic Boulevard, Suite 600
[email protected] Los Angeles, CA 90064
[email protected]
Michael J. Healey, Esq. [email protected]
Healey & Hornack, P.C. [email protected]
247 Fort Pitt Boulevard, 4th Floor
Pittsburgh, PA 15222 Rebekah Ramirez, Esq.
[email protected] National Labor Relations Board, Region 25
575 N. Pennsylvania Street, Room 238
Joseph A. Hirsch, Esq. Indianapolis, IN 46204-1577
Hirsch & Hirsch [email protected]
Two Bala Plaza
Third Floor, Suite 300 Alejandro Ortiz, Esq.
Bala Cynwyd, PA 19004 Jacob Frisch, Esq.
[email protected] National Labor Relations Board, Region 2
New York, NY 10278
[email protected]
[email protected]
Dated: New York, New York

September 18, 2017
/s/ Jamie Rucker _
Jamie Rucker, Counsel for the General Counsel
EXHIBIT M
($&YIJCJU)3
EXHIBIT N
($&YIJCJU)3
EXHIBIT O
From: Ayache Osama
Sent: Wednesday, September 03, 2014 3:26 PM
To: Brush Lisa; Calabrese Maggie
Cc: Kerley Steve; Salvat Jorge; Irvin Paul; Agarwal Parul; Davis Marques; Renna Jennifer
Subject: RE: Info from Tierney for protest tomorrow
Lisa,
We can certainly request an added officer, but based on the time it may be difficult to schedule.
Thank you,
Osama "Sam" Ayache, CFE

Regional Security Manager: Boston, New York Metro, Philadelphia Metro
U.S. Security I McDonald's USA
801 Lakeview Dr., Ste. 302 Blue Be, PA 19422 I Cc. 610-739-9893
eFax: 1-484-412-6900 I 24-hour emergency: 610-739-9893 [email protected]
The information contained in this electronic communication and any accompanying documents is confidential, written at the
direction of McDonald's in-house attorneys and subject to the attorney-client privilege and/or attorney work product privilege. It
is the property of McDonald's Corporation. Unauthorized use, disclosure, forwarding, redistribution and/or reproduction of this
communication, its attachments or any part thereof, in any way whatsoever, is strictly prohibited and may he unlawful. If you
have received this communication in error, please notify the sender immediately by return e-mail, and destroy this
communication and all copies, including all attachments.
From: Brush Lisa

To: Ayache Osama; Calabrese Maggie
Cc: Kerley Steve; Salvat Jorge; Irvin Paul; Agarwal Parul; Davis Marques; Renna Jennifer
Subject: FW: Info from Tierney for protest tomorrow
Importance: High
Good Afternoon,
I spoke with Danielle Dawkins and she has added security in addition to the security that is being provided. Danielle is
requesting another security officer as Danielle was told that there will be a minimum of 50 people.
Please advise.
Thank you,
Lisa
From: Akiyama Toka

To: Brush Lisa
Subject: Info from Tierney for protest tomorrow
Hi Lisa,
1 ($&YIJCJU)3
CONFIDENTIAL MCDNLRB243249
The Tierney team (PR agency for Phil-Ad-Mac) gave me a call with the following update.
John Dawkins received information from one of their crew the protesters are currently offering to pay $250 plus bail money to
restaurant staff get arrested on-site tomorrow.
Wanted to pass the information your way.
Thank you,
Toka
Toka Akiyama
Marketing Manager
McDonald's USA, LLC I Philadelphia Region
Cell: 610-427-3179
801 Lakeview Drive, Suite 302 I Blue Bell, PA 19422
Email: [email protected]
Ate
H ILADELPH IA
CONFIDENTIAL MCDNLRB243250
EXHIBIT P
McDONALD'S USA, LLC, a Joint Employer, et al. Cases 02-CA-093893, et al.

04-CA-125567, et al.
and

THIRD STIPULATION BETWEEN McDONALD'S USA, LLC AND GENERAL

COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD AS TO THE
AUTHENTICITY OF TEXT MESSAGES INVOLVING KENNETH KNOWLTON
Subject to the approval of the Administrative Law Judge, Respondent McDonald's
USA, LLC ("McDonald's") and the General Counsel of the National Labor Relations Board
("General Counsel"), by and through their respective counsel, hereby stipulate that each of
the text messages listed in the Attachment are contained within the Bates Range
MCDNLRB305023 — MCNDLRB305086 and may be admissible in the form shown in the
Attachment. Further, the text messages listed in the Attachment may be offered into
evidence without witness testimony and, if accepted by the Administrative Law Judge,
entered into the record. McDonald's stipulates that each item identified in the Attachment is
authentic. McDonald's reserves all other objections to the admissibility of the text messages
listed in the Attachment, including, but not limited to, lack of relevance or sufficient
probative value under Federal Rules of Evidence 401-403 and hearsay. The 'General
Counsel may question any witness as to the substance of any text message listed in the
Attachment. Once approved by the Administrative Law Judge, this stipulation will be
issued as an Order and the Attachment may be admitted into evidence. The Administrative
Law Judge will issue one or more oral rulings on the record as to the admission of the text
GC BC 2312
messages identified in the Attachment to this stipulation.
So Stipulated:
Counsel for the General Counsel Counsel for McDonald's USA, LLC
s/ Alejandro Ortiz
Alejandro Ortiz Doreen Davis
National Labor Relations Board, Region 2 JONES DAY
26 Federal Plaza, Room 3614 250 Vesey Street
New York, NY 10278 New York, New York 10281
2
ATTACHMENT TO THIRD STIPULATION REGARDING TEXT MESSAGES FOR KENNETH KNOWLTON
ROW FROM TO TIMESTAMP CONTENT OF TEXT MESSAGE

44 Tel: +16462713182 Tel: +15169678325 2014-01-10 1:54:04 PM HAPPY FRIDAY!!! Good morning. Labor
Name (Matched): Name (Matched): UTC Sched./Scorecard question.
Martin Calderon Kenny Knowlton
GC.BC. 2312
13

45 Tel: +16462713182 Tel: +15169678325 2014-01-10 1:54:08 PM Hours vs. Needed weekly target. .. Should it be "O"? It
Name (Matched): Name (Matched): UTC seems unrealistic. What should be the weekly or monthly
Martin Calderon Kenny Knowlton target please.
GC.BC. 2312
14

46 Tel: +15169678325 Tel: +16462713182 2014-01-10 2:05:52 PM If all settings are up to date, accurate, etc. then in theory it
Name (Matched): Name (Matched): UTC (Device) should be zero. However, target should be agreed upon
Kenny Knowlton Martin Calderon with Carmen. If you are using +2 during the peaks to build
the business - then versus needed would be+
GC.BC. 2312
15

117 Tel: +15014546127 Tel: +15169678325 2014-05-14 10:28:26 PM Pls call the following o.o to alert them that the overnight
Name (Matched): UTC crew may get solicited tonight and confirm when u have
Kenny Knowlton contacted. Carmen
GC.BC. 2312
44
ATTACHMENT TO THIRD STIPULATION REGARDING TEXT MESSAGES FOR KENNETH ICNOWLTON
ROW FROM TO TIMESTAIVIP CONTENT OF TEXT MESSAGE

118 Tel: +15014546127 Tel: +15169678325 2014-05-14 10:30:24 PM I didn't ask u to call o.o as some r being contacted already.
Name (Matched): UTC This is just a general alert. They r trying to get overnight
Kenny Knowlton crew to join tomorrow if paid $50
Tel: +12035598918
Name (Matched): Ken
Greene
Tel: +19176578872
Name (Matched):
Anthony Cruz
Tel: +18456129737
Tel: +15014546127
GC.BC. 2312

119 Tel: +15169678325 Tel: +15014546127 2014-05-14 10:59:54 PM Spoke to Carmen - made her aware
Name (Matched): UTC (Device)
Kenny Knowlton
GC.BC. 2312
45

124 Tel: +15014546127 Tel: +15169678325 2014-05-15 12:39:28 PM MSG fr Yokasat. .. Pls touch base w Carmen. Hi Stephen I
Name (Matched): UTC just received this message from one of my consultants -
Kenny Knowlton 840 Atlantic Ave. short staffed, no travel paths, a
Policeman asked the shift manager if she expected any
protests today. He knew she didn't seem to know
GC.BC. 2312
49

125 Tel: +15169678325 Tel: +15014546127 2014-05-15 1:06:22 PM Spoke with Carmen - she followed up - says they have 12
Name (Matched): UTC (Device) crew plus 2 managers but will add more - person who have
Kenny Knowlton a card to the manager and asked about protest was the
security person
GC.BC. 2312
50

134 Tel: +19173352643 Tel: +15169678325 2014-05-16 2:15:28 PM FYI I got one person (new person) signing a paper stating
Name (Matched): UTC they were on strike at Throop and the same person signing
Kenny Knowlton at 47th street as last times
Tel: +19173352643
Tel: +15014546127
GC.BC. 2312
52

135 Tel: +15014546127 Tel: +15169678325 2014-05-16 2:42:56 PM No worries as long as you let the people come back to
Name (Matched): UTC work. Share the letter w Brody
Kenny Knowlton
Tel: +19173352643
Tel: +15014546127
GC.BC. 2312
53
1-)5P
ROW FROM TO TIMESTAMP _ CONTENT OF TEXT MESSAGE
136 Tel: +15014546127 Tel: +15169678325 0& Wanted to alert you that a group of about 20 people came
2S511-4 —
Name (Matched): into 1651 Broadway chanting $15per hour. Pls let me
Kenny Knowlton 7 :. 1 9 , 2....61 ?Nk know if you hear any activity.
13TC_
Tel: +15014546127 0.o have already been informed
Tel: +18456129737
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +19176578872
Name (Matched):
Anthony Cruz
,
GC.BC. 2312
54

148 Tel: +15162411872 Tel: +15169678325 2014-08-08 11:34:24 PM Hello Bruce, I stopped by empire today and left Vicky with
Name (Matched): Name (Matched): UTC some feedback. Thanks for signage on VOICE but I highly
Bridgette Kenny Knowlton recommend you order additional signage to bring
Hernandez awareness. Service employee Ryan 3rd day did a veery
Tel: +15162411872 nice job. He greeted me, suggestive sold and also did
Name (Matched): proper placement with receipt on tray. Backup service was
Bridgette Hernandez done but missed service time by 38 seconds because drink
person missed my ice coffee. Vicky had 2 breaks and if she
Tel: +19144410123 didn't have both breaks out then lobby would have been
Name (Matched): Bruce cleaner and my sandwich would have been hot. My
Colley Jalapeño double was cold and after investigating I saw they
had buns pretoasted. Overall big improvement with service
and I gave them a wow card. Separate item, I made a
mention of replacing the toilet seat on the employee
bathroom because it has a hole on it. Have a great weekend
and see you next week
GC.BC. 2312
62

153 Tel: +15014546127 Tel: +15169678325 2014-09-04 10:20:48 AM Omg! ! There rover 200 people n times Sq already and
Name (Matched): UTC barricades for two blocks on 7 st
Kenny Knowlton
Tel: +19176578872
Name (Matched):
Anthony Cruz
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
64

154 Tel: +15014546127 Tel: +15169678325 2014-09-04 11:12:00 AM Large crowd marching around times Sqr. Anything else
Name (Matched): UTC happening?
Kenny Knowlton
Tel: +19176578872
Name (Matched):
Anthony Cruz
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
65

155 Tel: +15014546127 Tel: +15169678325 2014-09-04 11:39:44 AM Rally in front of 42 st
Name (Matched): UTC
Kenny Knowlton
Tel: +19176578872
Name (Matched):
Anthony Cruz
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
66

156 Tel: +15014546127 Tel: +15169678325 2014-09-04 11:39:44 AM Arrested 12 people who sat on road n front of restaurant
Name (Matched): UTC
Kenny Knowlton
Tel: +19176578872
Name (Matched):
Anthony Cruz
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
67

157 Tel: +15169678325 Tel: +19176578872 2014-09-04 12:02:49 PM Should I hang out at Empire - or go to Elaine's
Name (Matched): Name (Matched): UTC (Device)
Kenny Knowlton Anthony Cruz
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
68

158 Tel: +15014546127 Tel: +15169678325 2014-09-04 12:03:07 PM U can move on
Name (Matched): UTC
Kenny Knowlton
Tel: +19176578872
Name (Matched):
Anthony Cruz
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
69

159 Tel: +15014546127 Tel: +15169678325 2014-09-04 12:03:12 PM The crowd has dispersed at times Sqr
Name (Matched): UTC
Kenny Knowlton
Tel: +19176578872
Name (Matched):
Anthony Cruz
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
70

160 Tel: +15169678325 Tel: +19176578872 2014-09-04 1:03:20 PM With Elaine - all quiet
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
71

161 Tel: +15169678325 Tel: +19176578872 2014-09-04 1:05:14 PM Elaine said she saw something similar to Anthony's pic -
Name (Matched): Name (Matched): UTC (Device) will take a look
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
72

162 Tel: +15169678325 Tel: +19176578872 2014-09-04 1:33:18 PM Same message by Elaine's restaurant
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
73

163 Tel: +15169678325 Tel: +19176578872 2014-09-04 1:33:36 PM All quiet at 1188 - heading to Broadway store
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
74

164 Tel: +15014546127 Tel: +15169678325 2014-09-04 1:41:00 PM 1651 broadway also
Name (Matched): UTC
Kenny Knowlton
Tel: +19176578872
Name (Matched):
Anthony Cruz
Tel: +17322089004
Name (Matched):
Jenny Brown
Tel: +15014546127
GC.BC. 2312
75

165 Tel: +15014546127 Tel: +15169678325 2014-09-04 5:27:28 PM Stopped by 47n5. Carmen is here
Name (Matched): UTC
Kenny Knowlton
GC.BC. 2312
76
EXHIBIT Q
From: Sanders Kenneth
Sent: Thursday, May 15, 20142:16 PM
To: Sikka Danny
Subject: FW: Indy Region Activity Update
Attachments: Copy of Copy of Field Activity Tracker March 2014_12h30CDT.xlsx
FYI
Kenny Sanders
Human Resources Director, Indianapolis Region
McDonald's USA, LLC
Cell 314-322-4356
Office 317-708-5779
[email protected]
"Failure is only the nnl"n,'t, ",ih, to begin again, more intelligently".

Henry Ford
From: Jackson Kenethia

Sent: Thursday, May 15, 2014 1:57 PM
To: Wozny Jr Tory; Pena Jennifer; Neal Nicole; Matthews Tiffany
Cc: Doria Myra; Mckernan William; Sanders Kenneth; Moore Jerome; Mcclenny Amanda; Broady Leslie; Newberger
Charlie; Donaldson Linda; Rosa Mariblanca; Grant Chris
Subject: Indy Region Activity Update
Hello,
Please see our 12:30 p.m. CDTupdate. I will forward the media clips later today after the coverage airs.
Thanks,
Kenethia Jackson
Communications Manager I Indianapolis Region I McDonald's USA, LLC
250 West 96th Street Suite 500 I Indianapolis, Indiana 46260 I P: 317.708.5718 I F: 317.708.5808
e-mail: [email protected]
GC Exhibit HR 856
MCDNLRB245292
For Internal Use Only
Activity and Incident Reporting for Planned Day of Action or other large scale activity
In an effort to provide situational awareness to key leadership/stakeholders and subsequent impact analysis, use this form to capture and consolidate
critical information that will assist in analysis.
It includes restaurant and location information (McOpCo vs. O/O, store #, address), a description of the activity/event, including whether it is a third
party protest or employee walkout. Significantly, although it is important to report generally on whether an employee walkout occurred, we should not
report on the identity or specific activity of any individual employee.
Regions, divisions and McOpCo should continue to follow their reporting protocols when alerting leadership/stakeholders of an immediate situation,
which includes copying respective Division Counsel, Employee Relations Directors and/or McOpCo Employee Relations Managers and Global Security
([email protected]) on all email communications. Additionally, please copy the same individuals when sending this consolidated report.
GC Exhibit HR 856
Division Name Here
Date of Time of Store Type O/O Name or Ops Nat. Store # Address City State Zip Code Region Incident Type # of # of Description
Incident Incident (O/O or McOpCo) Mgr (McOpCo Participants Walk‐offs
Only)
Solicitation, protest, Do not report on the Provide a brief description of the activity/event, including whether it is a third
demonstration, business identity or specific party protest or employee walkout. Significantly, although it is important to
disruption, etc. activity of any report generally on whether an employee walkout occurred, do not report on
individual. the identity or specific activity of any individual employee.
15‐May 9am EDT O/O Reggie Jones 4407 Indianapolis IN 46204 Indianapolis Protest 30 0 Fight for 15 arrived and began demonstrating on the sidewalk just left of the
McDonald's restaurant located at 16th and Meridian. Thirty individuals, including
a few McDonald’s employees protested while chanting “Hold the fries we want
our wages supersized.”
The following news station arrived with no reporters just a camera crew: RTV6,
WISH‐TV, WTHR.
WISH‐TV interviewed a current employee of McDonald’s.
1611 N Meridian St.
15‐May 10:15:00 McOpCo Phil Rizzo 6015 Indianapolis IN 46260 Indianapolis Protest 30 0 Van with approximatley 25 protesters entered the lobby holding Fight for $15
AM EDT signs and chanting. GM asked them to leave the premises. Left the store and
moved to the lot. GM advised they could not be on Co property, they stated
they were leaving but would be back. Left in cargo van.No media.
15‐May 10:40 AM McOpCo Lloyd Lee 758 3745 N. Post Rd Indianapolis IN 46226 Indianapolis Protest 30 0 Protesters arrived at location, on lot and blocked drive thru. Security notified,
EDT police called. Local new media on site. Protestors in store placing orders, paying
with pennies. Waiting to confirm additional details with Ops manager on # of
participants and employee involvement. One employee is participating. EE did
not show for his shift. No employees have walked out. A camera man from Fox
59 arrived after the protesters had left.
15‐May 11:30 AM McOpCo Grace Lole‐Banda 1421 2612 Franklin Pike Franklin TN 37204 Indianapolis Protest 20 0 Protesters were on the lot and in drive thru. The restaurant was advised by the
CST regional security manager to call the police. One employee who didn't show up
for his shift is participating.
GC Exhibit HR 856
EXHIBIT R
CHART OF EVIDENCE CITED IN AUGUST 17, 2017 SUBPOENA ON NYCC
Request No. Evidentiary Support

1. BC.1162: Fight for Fifteen flyer referencing Los Angeles Organizing
Committee members who “work at McDonald’s located at 283 Crenshaw
Boulevard”.
2. BC.1162: Fight for Fifteen flyer referencing Los Angeles Organizing
Committee members who “work at McDonald’s located at 283 Crenshaw
Boulevard”.
HR.131: Email discussing tactics employed by the corporate campaign,
including, but not limited to, “[p]aying customers to collect crew member
names in order to entice those employees to participate in the protests” and
“[o]ffering free breakfast to employees for participating.”
HR.171: Email discussing crew person “telling people to come to a meeting.”
HR.758: Email describing recruiting tactics for the corporate campaign,
including, but not limited to, “demonstrations [sic] or someone going into the
restaurant to gain signatures for later contact,” “pick[ing] up and tak[ing] [an
employee] to the rally from their home,” and that “[i]n some instances, McD
[sic] employees did not go willingly and were strongly pushed to join the
efforts.”
BC.1352 6 : Email describing corporate campaign organizers entering a
franchisee store looking for employees who had provided their phone number
to the organizers becuase the organizers offered the employees assistance with
housing issues, including rent payment.
Tr. 6652-53: Testimony from Maggie Calabrese describing corporate
campaign organizers “following employees home” and “calling them
repeatedly on their cell phones while they were at work.”
Tr.11833: Testimony from Yokasta Rodrigues stating that the text message
on page 17 of exhibit BC-1385 indicated protestors attempted to distribute
flyers to restaurant employees.
3. HR.131: Supra at Request No. 2.
HR.239: Email stating that charged franchisee “received information from
one of their crew the [sic] protestors are currently offering to pay $250 plus
bail money to restaurant staff to get arrested on-site tomorrow.”
HR.742: Email stating that that on May 15, 2014, “[o]rganizers attempted to
solicit workers to walk off the job and participate by offering enticements
6
In the subpoena, McDonald’s inadvertently cited to exhibit HR.1352 in support of its second request. The
correct citation is to exhibit BC.1352.
-17-
such as $50 cash, gift cards, and rides/pick-ups at their place of residence.”
BC.2312 at 66-67: Text message stating “[a]rrested 12 people who sat on
road n [sic] front of restaurant” during a rally.
4. Tr.12237-38: Referring to a text message in exhibit BC.2311 at p. 50 stating
that corporate campaign organizers gave a letter to a manager of a
McDonald’s store stating that an employee would go on strike.
5. HR.129: Email recapping September 4, 2014 Day of Action, during which
protests of 300 to 800 people occurred at “70 restaurants, across 45 cities,”
and stating that there were “many instances of unlawful activity,” including,
“blocking traffic by sitting down, lying down, or forming a human chain in
the road” and “drive-thrus being blocked by protestors.”
HR.199: Email describing how 30-40 individuals “occupied” a McDonald’s
store, “walked to front counter, locked arms, and started chanting,” and did
“[n]ot allow[] any of [sic] customers to reach the front counter.” During the
business disruption, Harold Miller, an organizer for NYCC, approached the
Owner/Operator to discuss four terminated employees.
HR.358: Email describing protests of hundreds of individuals at a
McDonald’s store involving unlawful activity including, but not limited to,
protestors blocking traffic, screaming at individuals in private vehicles,
pounding on car hoods, blocking drive-thru windows, blocking entrances to
the store, prying open and breaking the drive-thru window, yelling at
customers, climbing on counters, pounding on and causing thousands of
dollars in damages to menu boards, and harassing and pushing the Owner-
Operator and the Owner-Operator’s family member. The protests additionally
involved protestors intentionally seeking to be arrested, and pre-arranged
media coverage.
HR.856: Email attaching spreadsheet describing protest activity at McOpCo
stores, including protestors entering store premises, blocking parking lots and
drive-thrus, and paying for orders with pennies.
Tr. 3498: Testimony from Eric DeLuna that demonstrations at northern
California McDonald’s stores were often violent, involving “smashing tables .
. . confronting customers, blocking driveways, [and] blocking the overall
parking lot.”
Tr. 5569: Testimony from Marcos Quesada that demonstrations in New York
involved “70, 80 people storming our restaurants, harassing customers,
harassing the crew that works there, and also the owner operators.”
HR.199: Supra at Request No. 5.
Tr. 5569: Supra at Request No. 5.
7. HR.758: Email attaching letters signed by employees stating their intent to
-18-
strike, delivered to McDonald’s store managers.
Tr.12237-38: Supra at Request No. 4.
HR.199: Supra at Request No. 5.
9. Tr. 3498: Supra at Request No. 5.
Tr. 6632: Testimony from Maggie Calabrese describing demonstrations at
McDonald’s stores involving individuals “storming the restaurant . . . banging
on the windows, intimidating customers and employees, [and] calling
employees out by name.”
Tr. 9790: Testimony from Kenneth Greene that he broke his foot when
protestors forced their way into a McDonald’s store through a side door,
knocking him down stairs.
Tr.11942: Testimony from Ronald Zarek that that he provided support and
consultation to Owner/Operators during protests regarding “[p]otential acts of
vandalism” and “issues where protestors or people involved may have
prevented customers from entering our restaurants.”
12. BC.2079 at pp. 13-15, rows 185-877: Text message stating “[a]rrested 12
people who sat on road n [sic] front of restaurant” during a rally.
Tr. 11020: Testimony from Jenny Brown testimony regarding the text
messages in exhibit BC.2079 at pp. 13-15, rows 185-87.
13. Order Granting and Denying in Part the Petitions to Revoke McDonald’s
USA, LLC’s Subpoenas Duces Tecum Served on the Charging Parties and
Kendell Fells (April 9, 2015, p. 5): finding relevant “(i) the actual protected
concerted and union activities engaged in by the individual employees
allegedly subject to retaliation by McDonald’s and the Franchisee
Respondents; (ii) the actual activities engaged in by the Charging Parties and
the employees to which, according to the General Counsel, McDonald’s and
the Franchisee Respondents effected a coordinated response; and (iii) any
other information that would have provided McDonald’s and the Franchisee
Respondents with knowledge of the Charging Parties’ campaign, and the
employees’ protected concerted and union activities.”).
7
In the subpoena, McDonald’s cited to exhibit BC.2079 at p. 13, rows 185-86 in support of its twelfth
request, and inadvertently did not to cite row 187. The complete citation is to BC.2029 at pp. 13-15, rows 185-87.
-19-
14. Order Granting and Denying in Part the Petitions to Revoke McDonald’s
USA, LLC’s Subpoenas Duces Tecum Served on the Charging Parties and
Kendell Fells (April 9, 2015, p. 5): Supra at Request No. 13.
-20-
EXHIBIT S
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Case Number: 04-CA-147314 Location: Havertown, PA
Date Filed: 03/02/2015 Region Assigned: Region 04, Philadelphia, Pennsylvania
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Docket Activity
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8(a)(1) Coercive Rules

8(a)(1) Concerted Activities (Retaliation, Discharge, Discipline)
Participants
Participant Address Phone
Charged Party / Respondent 1430 Wynkoop Street, (303)623-

Legal Representative Suite 300 1800
Kathleen Mowry Denver, CO
Messner Reeves LLP 80202-6172
Charging Party 247 Fort Pitt Blvd., 4th (412)391-
Legal Representative Floor 7711
https://www.nlrb.gov/case/04-CA-147314[9/11/2017 11:32:50 AM]

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Michael Healey Pittsburgh, PA

Healey & Hornack, P.C. 15222
Charged Party / Respondent 1430 Wynkoop Street, (303)623-
Steve Fine Denver, CO
Messner Reeves LLP 80202-6172
Charged Party / Respondent 116 West Township Line (610)853-
Employer Road 8260
Chipotle Services LLC d/b/a Chipotle Mexican Grill Havertown, PA
19083-5235
Charged Party / Respondent 1401 Wynkoop Street
Employer Suite 500
Chipotle Services LLC d/b/a Chipotle Mexican Grill Denver, CO
80802
Charging Party c/o Gabby Jones Local 32
Union BJ
Pennsylvania Workers Organizing Committee, a Project of the Fast Food 1515 Market Street Suite
Workers Committee 1000
Philadelphia, PA
19102
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Case Number Case Name Status
04-CA-149551 Chipotle Services LLC d/b/a Chipotle Mexican Grill Open
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1.) Micale Family LP d/b/a McDonald's, A Resources
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McDonalds USA, LLC as Joint Employers Download the Mobile App
Case Number: 04-CA-146147 Location: Philadelphia, PA The NLRB Process

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8(a)(3) Discipline
Participants
Charged Party / Respondent 77 West Wacker Drive (312)269-

Andrew Madsen Chicago, IL
Jones Day 60601

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Charged Party / Respondent 222 E 41st St (212)326-

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Doreen Davis 10017-6739
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Charged Party / Respondent 77 West Wacker Drive, (312)269-
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Jones Day 60601-1701
Charged Party / Respondent 1200 SHERMER ROAD, (847)786-
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TERI PIERCE One Lane Center
LAPOINTE LAW, P.C. NORTHBROOK, IL
60062
Charged Party / Respondent 3935 Walnut St (215)222-

Employer Philadelphia, PA 6266
Micale Family LP d/b/a McDonald's, a Franchisee of McDonald's USA LLC 19104-3608
Charged Party / Respondent 11 Sayer Avenue

Employer Suite 202
Micale Family, LP d/b/a McDonalds, a Franchisee of McDonalds USA, LLC and Cherry Hill, NJ
McDonalds USA, LLC, Joint Employers 08002
Charging Party 1515 Market Street,

Union Suite 1000
Pennsylvania Workers Organizing Committe, a Project of the Fast Food Workers Philadelphia, PA
Committee 19102-1911
Charged Party / Respondent One McDonald's Plaza (630)623-

Employer Oak Brook, IL 3000
McDonald's USA, LLC 70523


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Participants

Andrew Madsen Chicago, IL
Jones Day 60601-1701
Charged Party / Respondent 1500 Market St Fl 12 (973)491-

NLRB
Legal Representative East Tower 3346

CARMON HARVEY Philadelphia, PA
LECLAIR RYAN 19102-2152
Charged Party / Respondent 222 E 41st St (212)326-
Legal Representative New York, NY 3833
Doreen Davis 10017-6739
Jones Day


Michael Ferrell Chicago, IL
Jones Day 60601
Charged Party / Respondent 5945 Woodland Ave (215)913-
Employer Philadelphia, PA 0533
McDonald's of Woodland Avenue, Rupinder Singh Franchisee d/b/a 19143-5919
McDonal's
Charged Party / Respondent One McDonald's Plaza

Employer Oak Brook, IL
McDonald's USA, LLC 70523
Charging Party c/o Jess Burgan, 32BJ
Union 1515 Market St., Ste. 1000
Pennsylvania Workers Organizing Committee, a Project of the Fast Food Philadelphia, PA
Workers Committee 19102


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EXHIBIT V

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UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

McDONALD’S USA, LLC, A JOINT EMPLOYER,

FAST FOOD WORKERS COMMITTEE AND

URGENT APPEAL FROM THE ADMINISTRATIVE LAW JUDGE’S

AJ Servs. Joint Venture I, L.L.P,

Berry v. City of Detroit,

BFI Newby Island Recyclery,

BFI West Servs. LLC,

CNN America, Inc.,

Detroit Newspapers Agency,

Int’l Banquet & Conf. Ctr.,

Kenrich Petrochemicals v. NLRB,

Love’s Barbecue Rest.,

McDonald’s USA, LLC,

McDonald’s USA, LLC,

McDonald’s USA, LLC,

McDonald’s USA, LLC,

Mengele v. Patriot II Shipping Corp.,

Nat’l. Extrusion Mfg. Co.,

Pacific 9 Transp., Inc.,

S.G. Tilden, Inc.,

29 FED. PRAC. & PROC. EVID. (2d ed.) (2017) ...............................................................................23

NLRB CASEHANDLING MANUAL § 10292.4 ............................................................................20, 22

NLRB DIV. OF JUDGES, BENCH BOOK (2016) ........................................................................ passim

Federal Rule of Civil Procedure 26 ....................................................................................... passim

McDONALD’S USA, LLC, A JOINT EMPLOYER,

FAST FOOD WORKERS COMMITTEE AND

URGENT APPEAL FROM THE ADMINISTRATIVE LAW JUDGE’S

Since the inception of this matter, McDonald’s USA, LLC (“McDonald’s” or

General Counsel and over McDonald’s objection) permitted an unprecedented consolidation of

acknowledgement that McDonald’s complied with existing Board practice by providing

existing subpoena procedures to develop relevant evidence.

– by obtaining a ruling that McDonald’s is a joint employer of certain franchisee employees.

invitation to rewrite joint-employer law to “encompass a full analysis of the financial

case is unprecedented in several other respects. For instance, to McDonald’s knowledge, it

witnesses have testified, and the transcript is 19,473 pages long.4

Also remarkable – as McDonald’s is fully prepared to argue to the Court of Appeals, if

would highlight the following:

Unprecedented Consolidation. The General Counsel’s massive consolidation of

unnecessary burdens on Respondents and hindered their respective defenses. See

(Miscimarra, dissenting) (“I believe the aggregation of unconnected parties and

claims in this consolidated litigation will unavoidably prejudice the respondents

and deny them due process.”).

Unconstitutionally Vague Complaint. The Judge denied the Company’s Motion

for a Bill of Particulars, despite the General Counsel’s bare-bones joint-employer

(noting that “[t]his denial presents an acute due process problem”).

Unprecedented, One-Sided Pre-Trial Discovery. The General Counsel’s massive

“trial subpoena” consisted of seven single-spaced pages of instructions, followed

produced over 300,000 pages of documents and incurred approximately $2

Judge largely precluded the Company from subpoenaing wholly relevant

(Miscimarra, dissenting) (arguing that the Judge “improperly preclude[d]

McDonald’s from obtaining documents that may support a . . . defense against

joint employer liability” and “appears to have prematurely rejected McDonald’s

‘brand protection’ defense on the merits”).

the General Counsel’s nebulous joint-employment claim – which is ultimately a

(Miscimarra, dissenting) (noting the highly problematic nature of the Case

certain Respondents to forgo active participation”).