Dish Network Service Corp.

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 1071 (N.L.R.B. 2005)

DISH NETWORK SERVICE CORP.
345 NLRB No. 83
1071
Dish Network Service Corp. and Local 1108, Com-
munications Workers of America, AFL–CIO.
Cases 29–CA–26129, 29–CA–26130, and 29–CA–
26252
September 30, 2005
ORDER REMANDING PROCEEDINGS
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 25, 2005, Administrative Law Judge
Howard Edelman issued a decision in this case.1 In its
exceptions, the Respondent asserts that the judge failed
to issue a reasoned decision, as required under Section
102.35(j) of the Board’s Rules and Regulations. Specifi-
cally, it asserts that the judge acted improperly by utiliz-
ing extensive portions of the posthearing briefs filed by
the General Counsel and the Charging Party, copied ver-
batim, to provide almost the entire text of his decision.
The Respondent argues that this conduct demonstrates
that the judge failed to consider or address any argu-
ments made by the Respondent in its own posthearing
brief. Because it claims this conduct demonstrates that
the judge was biased against it, the Respondent asks the
Board to remand the case to a different judge and to have
that judge review the record and issue a proper decision.2
After carefully reviewing the entire record, as well as
the parties’ posthearing briefs to the judge, we find merit
in the Respondent’s contention and herein shall order
that the case be remanded for review by a different ad-
ministrative law judge. We are troubled that Judge
Edelman did not heed the Board’s previous warning in
Fairfield Tower Condominium Assn., 343 NLRB 923,
923 fn. 1 (2004), a case in which he also incorporated
portions of the parties’ briefs into his decision. In that
case, though we found under the circumstances that the
copying was not to be per se improper, we explicitly said
we did not condone the practice. The Board issued that
decision on December 8, 2004, 3 months prior to Judge
Edelman’s decision here. Although the transcript of the
hearing in this case satisfies us that Judge Edelman con-
ducted the hearing impartially, his wholesale borrowing
of large portions of the parties’ briefs into his decision,
as discussed below, improperly creates the appearance of

1 Judge Edelman held a hearing in this matter on June 28–July 1 and
September 27–30, 2004. After the close of the hearing, the General
Counsel, Charging Party, and Respondent filed posthearing briefs to the
judge. After the issuance of the judge’s decision, the Respondent filed
exceptions and a supporting brief; the General Counsel filed cross-
exceptions; the Charging Party filed a brief in opposition to the Re-
spondent’s exceptions; and the Respondent filed a reply to the Charging
Party’s brief.
2 Neither the General Counsel nor the Charging Party has responded
to this concern raised about the judge’s decision.
partiality in favor of the General Counsel and Charging
Party.
“[I]t is essential not only to avoid actual partiality and
prejudgment . . . in the conduct of Board proceedings,
but also to avoid even the appearance of a partisan tribu-
nal.” Indianapolis Glove Co., 88 NLRB 986 (1950). See
Reading Anthracite Co., 273 NLRB 1502 (1985); Dayton
Power & Light Co., 267 NLRB 202 (1983). The Board
has stressed that it does not condone the specific practice
of copying partisan briefs into a judge’s decision, al-
though it has found the practice not to be per se prejudi-
cial as long as the Board’s review indicates that the judge
has carefully reviewed and considered the record before
issuing his decision. Fairfield Tower Condominium As-
sn., supra; Waterbury Hotel Management LLC, 333
NLRB 482 (2001), enfd. 314 F.3d 645 (D.C. Cir. 2003).
Here, three aspects of the judge’s conduct in copying
the parties’ posthearing briefs give the appearance of
partiality. First, the extent of the judge’s copying: our
comparison of the relevant documents reveals that ap-
proximately 90 percent of Judge Edelman’s decision was
copied verbatim from the briefs filed by the General
Counsel and Charging Party. Second, the judge copied
verbatim from these briefs both in his factual statement
and legal discussion. Third, Judge Edelman said early in
his decision only that he included portions of the General
Counsel’s recitation of the facts; he did not mention his
incorporation of substantial portions of both briefs into
his legal discussion and analysis.3 The impression given
is that Judge Edelman simply adopted, by rote, the views
of the General Counsel and Charging Party and failed to
conduct an independent analysis of the case’s underlying
facts and legal issues.
In order to dispel this impression of partiality, we will
remand the case to the chief administrative law judge for
reassignment to a different administrative law judge.
This judge shall review the record and issue a reasoned
decision. We will not order a hearing de novo, because
the Respondent did not request a new hearing and, more
importantly, because our review of the record satisfies us
that Judge Edelman conducted the hearing itself prop-
erly. Additionally, we instruct the new administrative
law judge to rely on Judge Edelman’s credibility findings

3 In prior decisions, the Board has tolerated such borrowing when it
was limited to incorporating a brief’s recitation of the facts. For exam-
ple, in Washington Beef Producers, the Board found the inclusion of a
brief’s recitation of the facts to be permissible if the judge determined
that it fully and accurately recounted the facts of the case. 264 NLRB
1163 fn. 2 (1982), enfd. mem. 725 F.2d 1371 (9th Cir. 1984). Simi-
larly, in Regency Electronics, Inc., the Board rejected a request for a
trial de novo based on the wholesale borrowing from the statement of
facts from the General Counsel’s posthearing brief. 276 NLRB 4 fn. 2
(1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1072
insofar as they are based on the demeanor of the wit-
nesses.
ORDER
IT IS ORDERED that the administrative law judge’s deci-
sion of February 25, 2005 is set aside.
IT IS FURTHER ORDERED that this case is remanded to
the chief administrative law judge for reassignment to a
different administrative law judge who shall review the
record of this matter and prepare and serve on the parties
a decision containing findings of fact, conclusions of
law, and recommendations based on the evidence re-
ceived. Following service of such decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall apply.