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

National Labor Relations Board - Board Decisions

Jan 8, 2016

363 NLRB No. 92 (N.L.R.B. 2016)

363 NLRB No. 92
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
McDonald’s USA, LLC, a Joint Employer, et al. and
Fast Food Workers Committee and Service Em-
ployees International Union, CTW, CLC, et al.
Cases 02–CA–093893, et al., 04–CA–125567, et
al., 13–CA–106490, et al., 20–CA–132103, et al.,
25–CA–114819, et al., and 31–CA–127447, et al.
January 8, 2016
ORDER1
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The requests for special permission to appeal the at-
tached March 3, 2015 Case Management Order of Ad-
ministrative Law Judge Lauren Esposito, filed by
McDonald’s USA, LLC (McDonald’s) and the New
York Franchisees (collectively, the Respondents), are
granted. On the merits, the appeals are denied.2 The
Respondents have failed to establish that the judge
abused her discretion in the Case Management Order.
Notwithstanding the concerns the Respondents raise
concerning potential problems that could arise as a result
of the Case Management Order, the Respondents have
not met the heavy burden of establishing that the judge
abused her discretion in issuing the Case Management
Order. The judge carefully evaluated and weighed the
arguments and properly exercised her authority to regu-
late the course of the hearing under the Board’s Rules
and Regulations and applicable case precedent. In this
regard, the Case Management Order provides for an or-
derly presentation of evidence that helps to protect each
Respondent’s confidentiality and due process rights, as
well as controlling the efficiency and costs of litigation
for those individual businesses.
Our dissenting colleague reiterates his opposition to
the General Counsel’s consolidation of the complaints in
this case. As we explained in McDonald’s USA, LLC,
363 NLRB No. 91 (2016), the judge did not abuse her
discretion in denying the Respondents’ motions to sever.
Notwithstanding the denial of the motions to sever, our
colleague faults the judge’s Case Management Order for
providing that the General Counsel and the Charging
Parties present their evidence regarding the Respondents’

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Respondent McDonald’s and Respondent MaZT have separately
filed requests for special permission to appeal other aspects of the
judge’s Case Management Order. These requests remain pending
before the Board.
joint-employer status before the evidence relating to the
alleged unfair labor practices. We find his position una-
vailing. It is eminently reasonable, consistent with Board
procedures, and well within the judge’s discretion to or-
der the parties to litigate the issue of joint-employer sta-
tus prior to the alleged unfair labor practices.3 The dis-
sent cites no cases in which a judge has deferred evi-
dence of joint-employer status until after the presentation
of evidence on the unfair labor practice allegations. We
see no reason why this case requires a different result.
Indeed, in the instant case, there are logical reasons for
the judge ordering the General Counsel and the Charging
Parties to present their joint-employer evidence first.
That evidence is essential for determining whether Re-
spondent McDonald’s is a proper party to this proceed-
ing. The judge’s Order does not, as our colleague sug-
gests, amount to imputing liability before finding that
any violations have been committed. In addition, the
evidence offered by the parties in litigating the joint-
employer issue is potentially probative of the unfair labor
practice allegations. Moreover, the judge reasonably
concluded that litigating the unfair labor practice allega-
tions first would be less efficient, more costly, and result
in greater delay for all of the parties because of the
heightened possibility that there would have to be two
separate hearings in all three locations.
Our colleague further contends that the Order “pro-
vides for the Respondents to present corporate and na-
tionwide ‘joint-employer evidence’ before the General
Counsel has introduced evidence of alleged unfair labor
practices attributed to the separate respondents.” That is
incorrect. The Order explicitly provides that the Re-
spondents may wait to present their evidence on the
joint-employer issue at the end of the proceeding, after
the General Counsel and the Charging Parties have rested
their cases with respect to the joint-employer issue and
the unfair labor practice allegations. The dissent’s
lengthy discussion of this aspect of the Order boils down
to faulting the judge for having the Respondents present
their evidence on an issue after the General Counsel and
the Charging Parties have presented all of their evidence
on that same issue. This is far from extraordinary, and
well within the judge’s discretion.

3 To the extent the Respondents and our colleague argue that the
merits of the unfair labor practice allegations should be fully adjudicat-
ed before the joint-employer issue, we note that it is neither unusual nor
controversial for the judge to hear evidence on a joint-employer issue
and unfair labor practice allegations at the same hearing and to decide
both at the same time. See, e.g., Hoot Winc, LLC, 363 NLRB No. 2
(2015); CNN America, Inc., 361 NLRB No. 47 (2014), motion for
reconsideration denied, 362 NLRB No. 38 (2015), Aldworth Co., 338
NLRB 137 (2002), enfd. sub nom. Dunkin’ Donuts Mid-Atlantic Dis-
tribution Center, Inc. v. NLRB, 363 F.3d 437 (D.C. Cir. 2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Our colleague also objects to the Case Management
Order’s statement that parties and their counsel, includ-
ing the Respondents, “‘are encouraged’ to consider mak-
ing ‘one presentation on behalf of all parties whose posi-
tions with respect to a particular issue are congruent.’”
There is nothing exceptional, however, about a judge
encouraging parties to confer regarding their pre-
sentation of evidence to streamline the hearing and re-
duce the unnecessary costs and delays that should be
avoided whenever possible.
The dissent further contends that the Case Manage-
ment Order diminishes the chances that separate re-
spondents can fully participate in the entire hearing. But
the Case Management Order clearly states that all fran-
chisee-respondents may participate “to the extent that
they desire to do so.”4 Our colleague’s concerns, moreo-
ver, appear to be in tension with his position that the cas-
es should not be consolidated.
Ultimately, our colleague is right that this proceeding
is structured based on what the General Counsel hopes to
prove and the Respondents seek to disprove: the allega-
tions in the complaint. But that is true in every case that
comes before us, consistent with due process. The judge
structured the litigation in a manner that she determined
would be most efficient and effective for allowing the
General Counsel and the Charging Parties to present their
cases and for the Respondents to mount their defenses.
In doing so, the judge did not abuse her discretion. Ac-
cordingly, we deny the Respondents’ appeals.
Dated, Washington, D.C. January 8, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.

4 In this regard, the dissent objects at length to several of the requests
made by the General Counsel, particularly the request that the parties
whose interests align—i.e., Charging Parties on one side, Respondents
on the other—choose a lead or liaison counsel to act on behalf of other
parties. However, the judge denied those requests, and they are there-
fore not before us. Similarly, the dissent devotes substantial discussion
to rulings that the judge did not make, but might possibly make in the
future. As relevant to the present appeal, the issue is much simpler:
The judge acted well within her discretion to seek to insure the orderly
presentation of evidence on a contentious issue common to all of the
Respondents.
This case involves an unprecedented consolidation of
61 unfair labor practice charges filed in six NLRB Re-
gions (Regions 2, 4, 13, 20, 25 and 31) against 31 em-
ployers involving 181 alleged violations at 30 different
workplace locations. Each of the 181 alleged violations
is alleged to have been committed by a single separate
respondent, and the 31 separate respondents are inde-
pendent of one another with no operational interchange.1
Therefore, the alleged violations turn on what happened
to particular employees at a particular location operated
by one of the separate respondents. Although McDon-
ald’s USA, LLC (McDonald’s USA) is alleged to exer-
cise sufficient control to qualify as an additional respon-
sible “employer” based on the Board’s joint-employer
doctrine, there is no contention that McDonald’s USA
directly violated the Act. Thus, the General Counsel has
indicated that “McDonald’s—the alleged joint employ-
er—is not accused of committing any ULPs in this pro-
ceeding.”2
Presently pending is a request for special permission to
appeal from several aspects of the judge’s Case Man-
agement Order (Order) (dated March 3, 2015). At pre-
sent, none of the merits has been decided, and neither my
colleagues nor I prejudge them. However, we have ad-
dressed a succession of other procedural issues that have
been appealed to the Board.3
One cannot envy anyone involved in this massive pro-
ceeding. However, two realities inescapably flow from

1 There are 32 respondents, including McDonald’s USA, LLC. Of
these, 30 are franchisees operating a McDonald’s franchise restaurant.
The remaining respondent is McDonald’s Restaurants of Illinois, Inc.,
which is not alleged to be a franchisee of or a joint employer with
McDonald’s USA, LLC. I refer to the 30 franchisees plus McDonald’s
Restaurants of Illinois, Inc.—the 31 Respondents alleged to have com-
mitted unfair labor practices—as the “separate respondents.”
2 General Counsel’s Opposition to the New York Franchisees’ Re-
quests for Special Permission to Appeal the ALJ’s Order Denying Their
Motions to Sever and Portions of her Case Management Order, p. 3
(dated April 9, 2015).
3 One appeal stemmed from the judge’s denial of a request to have a
transcript of a telephonic scheduling conference that, as described by
the judge, was to address the “manner and time frame for the produc-
tion . . . of documents and electronically stored information,” which
had been subpoenaed by the General Counsel. Lewis Foods of 42nd
Street, LLC, 362 NLRB No. 132 (2015). In another appeal, the Board
denied McDonald’s USA’s motion for a bill of particulars regarding a
new, more expansive theory of “joint employer” status about which the
consolidated complaints are silent. McDonald’s USA, LLC, 362 NLRB
No. 168 (2015). In a third appeal, McDonald’s filed a motion to sever
based on a contention that litigating in a single consolidated case all
181 alleged violations, asserted against 31 separate respondents and
McDonald’s USA, constituted a violation of due process rights and was
otherwise an abuse of discretion; the Board also denied this motion.
McDonald’s USA, LLC, 363 NLRB No. 91 (2016). I dissented from all
three Board decisions (as did Member Johnson in the two decisions in
which he participated). Further prehearing matters remain pending
before the Board.
MCDONALD’S USA, LLC 3
this litigation. First, as expressed in my dissenting opin-
ion regarding the Respondents’ motion to sever,4 I be-
lieve the parties and claims are too numerous and dissim-
ilar to be thrown into a single case, and the structure of
this litigation will impose oppressive costs, burdens, and
delays on the parties, the Board, and reviewing courts.
Second, the Board’s failure to acknowledge the ill-
advised nature of this enormous consolidation places the
judge and the parties in the impossible position of trying
to find some way to litigate these diverse claims involv-
ing dozens of different parties in a single proceeding.
Now, as this train departs for an extended journey, we
are discarding decades of Board experience adjudicating
these types of claims in a conventional way. Instead, we
are substituting entirely new procedures that—rather than
fostering fairness and avoiding undue burdens on private
party-litigants—have two primary purposes: (i) to forge
ahead with a single consolidated case regardless of its
epic proportions; and (ii) to facilitate the General Coun-
sel’s effort to impose liability on McDonald’s USA for
whatever ULPs are proven to have occurred. Unfortu-
nately, the Case Management Order accomplishes these
objectives by disfavoring the separate respondents and
unfairly diminishing their ability to fully participate in
relevant proceedings. For example, the Case Manage-
ment Order inverts the order of evidence by addressing
first the question of who shall be liable, before any evi-
dence is presented regarding whether anyone has violated
the Act. Yet, the Case Management Order affords excep-
tional deference to the General Counsel’s attorneys, who
(among other things) have argued that the separate re-
spondents do not even have due process rights regarding
joint-employer issues. The General Counsel’s attorneys
have gone so far as to argue the separate respondents
should be denied the right of representation by counsel
of their own choosing, and pointedly, the Case Manage-
ment Order refuses to rule out this possibility. Ironically,
the General Counsel’s attorneys have convinced the
judge and a Board majority that this case should proceed
as an integrated whole, but the Case Management Order
splinters the hearings into three counterintuitive phases
(with phase one hearings to occur in Manhattan, phase
two in Chicago, and phase three in Los Angeles). At
each location, the hearings will be subdivided further.
Under the Case Management Order, one objective
trumps everything else: to get through the mechanics of
creating some type of record notwithstanding the unman-
ageable size of this litigation and its dissonant parts.

4 See McDonald’s USA, LLC, 363 NLRB No. 91, slip op. at 2
(Member Miscimarra, dissenting).
In my view, the structure of this litigation, including
the Case Management Order, is ill-advised, and I would
sustain the objections raised by the Respondents to the
Case Management Order for several reasons.
First, as explained in my dissent from the Board’s de-
nial of the motion to sever filed by the Respondents,5 the
Board is making an unfortunate decision to permit this
colossal litigation to continue in its present form. I have
no doubt that my colleagues and the judge, like the Gen-
eral Counsel, believe the pursuit of this consolidated case
will effectuate the purposes of the Act and reduce certain
costs and delays. However, their reasoning is contradict-
ed by nearly everything associated with the Board’s ex-
perience litigating these types of cases, especially alleged
joint-employer violations, and even by the short history
of this litigation itself. The extraordinary consolidation
of these divergent parties and claims in a single proceed-
ing, rather than avoiding unnecessary costs or delay, will
inescapably impose overwhelming burdens, unfairness,
and much greater costs and delays on the Board, on the
parties, and on any subsequent reviewing courts. More-
over, as I observed previously:
[T]here is a troubling circularity to the rationale sup-
porting consolidation. The General Counsel hopes to
prove that one entity—McDonald’s USA—is a “joint
employer” in its dealings with 30 franchisee-
respondents, and this not-yet-proven contention is the
premise for aggregating 181 dissimilar claims and 31
respondents—the 30 franchisees plus McDonald’s Res-
taurants of Illinois, Inc.—that have no relationship with
one another except for the fact that they operate
McDonald’s restaurants. But the fact that each of the
franchisee respondents has dealings with a common
franchisor (McDonald’s USA) does not justify enmesh-
ing them in one another’s labor and employment dis-
putes. To the contrary, this is precisely what our statute
protects against, because Section 8(b)(4)(B) protects
neutral employers, including franchisees, from being
embroiled in a dispute just because they do business
with a common franchisor.6
My second point relates more directly to the Case
Management Order, which reflects an attempt to recon-
cile the large number of disparate parties and claims with

5 McDonald’s USA, LLC, 363 NLRB No. 91, slip op. at 2 (Member
Miscimarra, dissenting).
6 McDonald’s USA, LLC, 363 NLRB No. 91, slip op. at 6 (Member
Miscimarra, dissenting) (emphasis in original) (citing Teamsters Local
456 (Carvel Corporation), 273 NLRB 516, 520 (1984) (Carvel ice
cream franchisee protected from coercion based on a dispute involving
Carvel, the franchisor, even though “mutual interdependence, necessary
for the economic survival of both parties, is characteristic of franchise
operations”)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
“the overarching nature of the General Counsel’s theo-
ries.”7 The consolidation of unconnected respondents
and claims already creates substantial risks that the sepa-
rate respondents will experience prejudice, denials of due
process, protracted delays, and immense costs that would
not have existed if these cases were litigated separately in
a conventional manner. Rather than recognizing and
attempting to offset these risks, the Case Management
Order goes in the other direction and exhibits even
greater deference to the General Counsel while further
increasing the ways that the separate respondents are
likely to be disadvantaged by the structure of this litiga-
tion.
The portion of the Case Management Order addressing
the presentation of evidence states:
Presentation of the case: The hearing in this
case will take place in three phases, with adjourn-
ments between each phase. The first phase will take
place in Manhattan, the second phase in Chicago,
and the third phase in Los Angeles. The first phase,
in Manhattan, will begin with corporate or nation-
wide evidence pertinent to the joint employer allega-
tions, and will continue with evidence of joint em-
ployer status and evidence regarding the specific vi-
olations allegedly committed at the franchisee loca-
tions in New York City and Philadelphia. The se-
cond and third phases will involve the presentation
of evidence of joint employer status and evidence
regarding the specific violations allegedly commit-
ted at the franchisee locations in the midwest and
California, respectively.
At the opening of the hearing on March 30, 2015,
I will hear any oral argument necessary on the par-
ties’ Petitions to Revoke Subpoenas, and issue rul-
ings. The hearing will then adjourn until May 11,
2015 to allow for the production of any documents
and electronically stored information and adjudica-
tion of any claims of privilege. . . .
When the hearing resumes, General Counsel will
present evidence applicable on a corporate or na-
tionwide basis pertaining to the alleged joint em-
ployer status of McDonald’s USA, LLC (“McDon-
ald’s”) with the Respondent franchisees. Charging
Parties will then present their evidence applicable
on a corporate or nationwide basis regarding the al-
leged joint employer relationships. General Counsel
has indicated that while evidence applicable on a
corporate or nationwide basis will comprise a sub-
stantial component of the overall evidence with re-

7 Order Denying Respondents’ Motions to Sever, p. 6 (Feb. 20,
2015).
spect to the alleged joint employer relationship, they
also intend to present evidence to establish joint em-
ployer status involving individual franchisee Re-
spondents, possibly in all three hearing locations.
As a result, after General Counsel (and Charging
Parties) present evidence of joint employer status
applicable on a corporate or nationwide basis,
McDonald’s and the franchisee Respondents will
have the option to either proceed with their own evi-
dence applicable on a corporate or nationwide basis
regarding the joint employer issue, or wait to pre-
sent this evidence until General Counsel and Charg-
ing Parties rest their cases with respect to the joint
employer issue entirely. McDonald’s and the fran-
chisee Respondents will be required to confer and
jointly choose one of the foregoing options, applica-
ble to all Respondents. All presentations of joint em-
ployer status evidence applicable on a corporate or
nationwide basis will take place in Manhattan.
After General Counsel and Charging Parties’
presentation of evidence applicable on a corporate or
nationwide basis concludes, General Counsel will
then present evidence specific to the franchisee Re-
spondents located in New York City and Philadelph-
ia. General Counsel will present all evidence with
respect to each specific franchisee in turn, including
evidence pertinent to the joint employer issue and
evidence relevant [to] the alleged violations. Gen-
eral Counsel will then rest their case with respect to
that particular franchisee. Charging Parties will then
present all of their evidence with respect to the fran-
chisee, in the same manner. McDonald’s and the
franchisee Respondent will then present any evi-
dence specific to the franchisee, including both evi-
dence regarding joint employer status and evidence
in defense of the unfair labor practice allegations.
General Counsel will prepare a schedule for the
presentation of franchisee evidence—including the
order and anticipated dates of franchisee evidence to
be presented—in consultation with counsel for the
franchisee Respondents in order to ensure an effi-
cient presentation of evidence and minimize the bur-
den on the franchisee Respondents.
Parties and their counsel are encouraged but not
required to confer regarding the presentation of evi-
dence, including the questioning of witnesses and
any evidentiary argument, and to make one presen-
tation on behalf of all parties whose positions with
respect to a particular issue are congruent. This
could include having one attorney present a position
or question a witness on behalf of several parties,
where their positions coincide, if the parties so de-
MCDONALD’S USA, LLC 5
sire. A diligent effort to cooperate will conserve par-
ties’ resources and result in a more efficient case
presentation.
Presentation of the evidence in Chicago and Los
Angeles will proceed in the same manner as the
presentation of the evidence involving the fran-
chisees in New York City. After General Counsel
rests its case regarding joint employer status,
McDonald’s and the franchisee Respondents will
have the opportunity to present evidence applicable
on a corporate or nationwide basis with respect to
this issue, if they have not already done so.
Notice to parties regarding the presentation of
evidence: In order to proceed in this manner, parties
must have adequate information and sufficient ad-
vance notice to allow them to participate in the
hearing to the extent that they desire to do so. There-
fore, General Counsel will provide the franchisee
Respondents and the Charging Parties with specific
information regarding the presentation of evidence
pertaining to the alleged joint employer status of
McDonald’s and the Respondent franchisees, includ-
ing the identities of witnesses and dates of their tes-
timony. General Counsel will provide such infor-
mation regarding joint employer evidence to be pre-
sented both during the phase of the hearing address-
ing evidence applicable on a corporate or nationwide
basis, and when evidence regarding joint employer
status will be presented in the context of the cases
involving the individual franchisee Respondents.
General Counsel will provide this information suffi-
ciently in advance of the presentation of evidence to
allow for parties wishing to participate in the hear-
ing by videoconference to do so. McDonald’s and
the franchisee Respondents will provide such infor-
mation regarding their case presentations to the
Charging Parties in a similar manner.8
Undoubtedly, questions about joint-employer status
are important. However, before one gets to the “over-
arching nature” of the General Counsel’s theories, the
central question should be whether any respondent com-
mitted one or more of the 181 alleged violations encom-
passed within the 61 charges in this case that were inves-
tigated within six different NLRB Regions. As I stated
previously:
[T]he present consolidation assembles disparate claims
and parties into a single massive proceeding based on
alleged common elements that have yet to be proven

8 Case Management Order, pp. 6–8 (March 3, 2015) (internal foot-
notes omitted; emphasis added, page numbers refer to pages in order as
issued by the judge).
and may never be proven. Necessarily, the litigation’s
structure, which is premised on what the General
Counsel hopes to prove, will tend to emphasize those
elements that each franchisee has in common with
McDonald’s USA, and it will tend to deemphasize evi-
dence of differences, exceptions and explanations—
presuming that each franchisee-respondent will have
the resources needed to participate, with representation
by counsel, in hearings to be held in multiple locations
across the country that will likely take years to com-
plete.9
I recognize that the General Counsel and his hard-
working attorneys are endeavoring to give force and ef-
fect to our statute, which creates important rights and
obligations for employees, unions, and employers
throughout the country.10 However, important aspects of
the Case Management Order and various positions taken
by the General Counsel are surprising and objectionable:
 The Separation Between “Joint Employer”
Evidence and Evidence of Alleged ULPs. The
Case Management Order takes as its basic
premise a demarcation between joint-
employer evidence and “evidence relevant
[to] the alleged violations.”11 However, it ap-
pears clear that this dichotomy will substan-
tially break down during the hearing, and the
General Counsel has already stated that “evi-
dence adduced in all phases of the proceeding
may bear on the joint employer analysis.”12
 Requiring “Joint Employer” Evidence First.
As noted above, the Order provides for the
Respondents to present corporate and nation-
wide “joint-employer evidence” before the
General Counsel has introduced evidence of
alleged unfair labor practices attributed to the
separate respondents, with at most a limited
deferral (if agreed upon by all respondents)

9 McDonald’s USA, LLC, 363 NLRB No. 91, slip op. at 6 (Member
Miscimarra, dissenting).
10 In McDonald’s USA, LLC, 363 NLRB No. 91, slip op. at 3, I stat-
ed: “The Board does important work enforcing a statute that creates
important rights and obligations for employees, unions and employers
throughout the country. In this case, the General Counsel and his hard-
working attorneys are endeavoring to give force and effect to our stat-
ute’s provisions. I respect and commend their work. Without their
efforts, the Act would be an empty vessel that would poorly serve par-
ties who should benefit from every ounce of protection that is available
under our statute.”
11 Case Management Order, pp. 6–7.
12 General Counsel’s Opposition to the New York Franchisees’ Re-
quests for Special Permission to Appeal the ALJ’s Order Denying Their
Motions to Sever and Portions of her Case Management Order, p. 3
(dated April 9, 2015).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
until the General Counsel and Charging Par-
ties rest their entire “joint employer” case. In
any event, the Order operates to the ad-
vantage of the General Counsel (who already
has the benefit of all the information uncov-
ered during pre-complaint investigations con-
ducted by attorneys in six NLRB Regions)
and to the detriment of the Respondents (who
must put on their joint-employer case without
having seen evidence regarding some or all of
the specific violations alleged to be the basis
for joint-employer liability).13
 Potential Denial of Respondents’ Right to
Representation by Their Own Counsel. The
General Counsel has argued that individual
Respondents should be denied the right to
have separate representation by counsel of
their own choosing. The General Counsel has
likewise argued for a requirement that the Re-
spondents be required to file “joint page-
limited motions” (instead of separate motions
as each respondent deems appropriate). Sig-
nificantly, the judge, though denying these
requests for the time being, has preserved the
possibility that she may deny respondents
these basic rights if it “becomes necessary.”14
 Respondents “Encouraged” to Forego Active
Participation. Although the Respondents are
not presently “required” to relinquish their
right to participation with their own counsel,
the Case Management Order states the Re-
spondents “are encouraged” to consider mak-
ing “one presentation on behalf of all parties
whose positions with respect to a particular
issue are congruent,” which “could include
having one attorney present a position or
question a witness on behalf of several par-

13 My colleagues erroneously state that the Case Management Order
“explicitly provides that the Respondents may wait to present their
evidence on the joint-employer issue at the end of the proceeding, after
the General Counsel and the Charging Parties have rested their cases
with respect to the joint-employer issue and the unfair labor practice
allegations” (emphasis added). I believe this interpretation of the Case
Management Order is incorrect. See text accompanying fn. 27, infra.
14 The judge’s Case Management Order (dated March 3, 2015) states
that the General Counsel requested that the judge “require parties to
choose a lead or liaison counsel to act on behalf of other parties” and
“require parties to file joint page-limited motions.” Even though the
judge observed these limitations would “circumscribe the prerogatives
of the parties in terms of their choice of representative and the presenta-
tion of their positions,” the Case Management Order states that “[s]uch
limitations . . . will not be imposed unless it becomes necessary.” Case
Management Order fn. 1 (emphasis added).
ties, where their positions coincide.” Alt-
hough phrased in voluntary terms, the Re-
spondents face considerable peril if they ex-
ercise their right to have separate participa-
tion by their own counsel. All Respondents
undoubtedly realize that the judge—who has
“encouraged” the parties to dispense with
separate representation—will decide every is-
sue in the case, including evidentiary rulings,
the potential exclusion of “cumulative” evi-
dence, and the merits. Moreover, the Case
Management Order, as noted above, leaves
open the possibility that the judge may deem
it “necessary” to deny parties the right to rep-
resentation by their own counsel.
 Importance of Evidence Specific to Individ-
ual Respondents. The General Counsel ar-
gued for “a general evidentiary presumption
that the evidence of joint employer status ap-
plicable on a corporate or nationwide basis
applies to each individual franchisee absent
new evidence to the contrary presented by
that franchisee.”15 Although the judge denied
this request for a “presumption” of joint-
employer status, this emphasizes the likeli-
hood that each separate respondent will need
to introduce evidence of dissimilarities and
exceptions to McDonald’s corporate or na-
tionwide policies to rebut alleged joint-
employer status.
 Potential Non-Participation by Respondents.
Another premise of the Case Management
Order is the notion that separate respondents
may not “desire” to “participate in the hear-
ing.”16 In conventional Board litigation, the
prospect that a respondent hoping to mount a
defense will not participate in the hearing is

15 Case Management Order, p. 7 fn. 3.
16 The General Counsel has clearly stated that he intends “to present
evidence to establish joint employer status involving individual franchi-
see respondents, possibly in all three hearing locations” (Order, p. 6)
(emphasis added), and that “evidence adduced in all phases of the
proceeding may bear on the joint employer analysis,” General Coun-
sel’s Opposition to the New York Franchisees’ Requests for Special
Permission to Appeal the ALJ’s Order Denying Their Motions to Sever
and Portions of her Case Management Order, p. 3 (dated April 9, 2015)
(emphasis added). Nonetheless, the Case Management Order presumes
that separate respondents will not participate in the entire hearing. See,
e.g., Case Management Order, p. 7 (the General Counsel must provide
information including the identities of witnesses and dates of their
testimony so parties can “participate in the hearing to the extent that
they desire to do so”); id. pp. 6–7 (providing for the disclosure of in-
formation sufficiently in advance “to allow for parties wishing to par-
ticipate in the hearing by videoconference to do so”).
MCDONALD’S USA, LLC 7
almost unthinkable. However, given the
enormity of this proceeding, the opposite is
true: participation in the entire hearing by
the separate respondents is difficult to fathom
given that the hearing may last hundreds of
days and this consolidated litigation may easi-
ly span 10 to 15 years or more.
 All Respondents Limited to a Single “Option”
Regarding Joint-Employer Evidence. The
Case Management Order not only requires the
presentation of evidence regarding joint-
employer status first (before any evidence ad-
dresses whether any violations occurred), the
Order bifurcates the joint-employer evidence
into two stages, the first stage dealing with
joint-employer evidence “applicable on a cor-
porate or nationwide basis,” and the second
dealing with the alleged “joint employer sta-
tus involving individual franchisee Respond-
ents.” Although McDonald’s USA and the
separate Respondents have the option to de-
cide whether to present their joint-employer
evidence between these two stages or when
the General Counsel (and the charging par-
ties) “rest their cases with respect to the joint
employer issue entirely,” the judge has or-
dered “McDonald’s and the franchisee Re-
spondents . . . to confer and jointly choose
one of the foregoing options, applicable to all
Respondents.”17 Likewise, as noted above,
the Case Management Order provides for the
respondents to present their corporate or na-
tionwide joint-employer evidence before
some or all of the General Counsel’s evidence
has been introduced regarding what alleged
violations of the Act have been committed.18
Above all else, I am troubled by the dismissive treat-
ment that is being afforded to the role and participation
of the separate respondents. The separate respondents—
not McDonald’s USA—are the parties that allegedly
have engaged in the unfair labor practices at issue in this
proceeding.19 Section 101.10 of the Board’s Rules and

17 Case Management Order, p. 6.
18 Details regarding this aspect of the Case Management Order are
discussed in the text accompanying fn. 27, infra.
19 The General Counsel, as noted previously, has conceded that
“McDonald’s—the alleged joint employer—is not accused of commit-
ting any ULPs” separate from violations attributed to the separate re-
spondents. General Counsel’s Opposition to the New York Fran-
chisees’ Requests for Special Permission to Appeal the ALJ’s Order
Denying Their Motions to Sever and Portions of her Case Management
Order, p. 3 (dated April 9, 2015).
Regulations, “Hearings,” states that “all parties to the
proceeding . . . have the power to call, examine, and
cross-examine witnesses and to introduce evidence into
the record” (emphasis added). But to exercise that
“power” in this immense consolidation of unrelated
claims and parties, each separate respondent will incur,
as the price for participation, potentially ruinous legal
fees and expenses. Again, the Case Management Order
unavoidably leaves the impression that participation by
the separate respondents, which is their right under
Board Rules Section 101.10, is expendable and subordi-
nate to what the General Counsel hopes to prove—i.e.,
the joint liability of McDonald’s USA.
The General Counsel’s representatives have gone so
far as to blame the Respondents for costs and burdens
associated with their participation in a three-phase cross-
country hearing because (to borrow their words) “noth-
ing in the judge’s orders requires them to do so.”20 The
General Counsel’s attorneys even argue that the separate
respondents have no interests that warrant any due pro-
cess protection regarding the fundamental question of
whether the Respondents and McDonald’s USA are joint
employers.
I find it hard to believe that any attorney representing
the General Counsel would assert that parties in a Board
proceeding lack due process rights regarding what the
General Counsel has portrayed as the most important
disputed issue in the case. Moreover, such a contention
is obviously specious: a joint-employer finding would
clearly have potentially far-reaching consequences for
individual franchisee-respondents, potentially eliminat-
ing the franchisee’s autonomy regarding some or all em-
ployment-related decisions, possibly invalidating im-
portant franchise agreement provisions or potentially
undoing franchise arrangements involving millions of
dollars in capital investment, preventing franchisees from
making their own decisions in collective bargaining
should their employees become union-represented, and
eliminating secondary boycott protection that the Act
would otherwise afford a franchisee in the absence of
joint-employer status. Moreover, attorneys for the Gen-
eral Counsel have stated that “evidence adduced in all
phases of the proceeding may bear on the joint employer
analysis.”21 Nonetheless, the General Counsel’s attor-
neys have exhibited disdain towards the possibility that
separate respondents might want to participate in all
phases of the litigation. For example, regarding the lim-
ited participation they would deem appropriate for the

20 Id. (emphasis in original).
21 Id. (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
New York franchisee-Respondents, the General Coun-
sel’s attorneys have stated:
The New York Franchisees face liability for ULPs only
to the extent they themselves committed the ULPs. To
the extent they did not commit ULPs, they face no lia-
bility. Because McDonald’s—the alleged joint em-
ployer—is not accused of committing any ULPs in this
proceeding, the franchisees do not face the prospect in
this proceeding of having to remedy any conduct by
McDonald’s. The New York Franchisees therefore
have no property interest at stake in that issue and thus
cannot be deprived of due process.
Further, as should be obvious by now, the New York
Franchisees are not alleged to be joint employers with
other franchisees. Thus, any ULPs committed by other
franchisees cannot be attributed to the New York Fran-
chisees. Given these facts, the New York Franchisees
will be able to fully protect their interests by attending
the New York phase of the trial only. If they choose to
attend additional phases of the trial, that is their
choice, but given their repeated claims of “gargantu-
an” burdens, it would seem a poor one.22
In short, putting aside their patronizing and conde-
scending tone, the attorneys representing the General
Counsel contend that the problems in this litigation stem
from the unreasonable desire of franchisee-respondents
to participate fully in proceedings that have been brought
against them. Only two parties deserve continuous rep-
resentation in the mega-consolidated structure created by
the General Counsel’s attorneys: (i) the General Coun-
sel’s legal team (which already has the benefit of 61 in-
vestigations conducted by six NLRB Regions regarding
181 violations alleged to have been committed by 31
separate respondents), and (2) McDonald’s USA (which
is not even alleged to have committed any of the purport-
ed violations).23 According to the advocates representing
the General Counsel, the separate respondents should be
relegated to worse-than-second-class status: their hap-
less attorneys should skip the other stages of the hearing
altogether (those relating to joint-employer status, as to
which the separate respondents supposedly do not even
have “due process” rights), and any single attorney repre-
senting a separate respondent should settle for a guest
appearance—possibly limited to a videoconference24—

22 Id., p. 4 (emphasis added).
23 Id., p. 3 (dated April 9, 2015)
24 I recognize that some costs associated with travel to distant hear-
ing locations may be mitigated by the availability of potential participa-
tion by videoconference. However, in a separate request for special
permission to appeal currently pending before the Board, McDonald’s
solely for the purpose of putting on evidence about the
alleged violations pertaining to a particular franchisee-
client. This type of limited participation would put any
attorney (and the respondent he or she represents) at a
severe disadvantage given the General Counsel’s superi-
or knowledge of the evidence already introduced, prior
evidentiary rulings made by the judge, and evidence or
potential defenses specific to McDonald’s USA and oth-
er respondents that might otherwise be unknown to the
attorney.
I would not address these arguments by the General
Counsel if the Case Management Order ruled that this
litigation will not abridge each separate respondent’s
right to participate fully at all stages by its own counsel.
However, the Case Management Order pointedly does
not reject this possibility, stating instead that it may be
“necessary” to place restrictions on the role played by
separate respondents and their counsel.
The Board’s own recent experience with joint-
employer issues demonstrates that concerns about pro-
cess costs and protracted delays are not merely hypothet-
ical. Last year, the Board decided another joint-
employer case—CNN America, Inc.25—which only in-
volved three entities and two locations. Yet, the CNN
case required 10 years of Board litigation, 82 days of
trial, more than 1300 exhibits, and more than 16,000
transcript pages. The claims against McDonalds USA
and the separate respondents in the present consolidated
case are many times greater and more diverse than those
in CNN. Moreover, CNN involved the Board’s tradition-
al joint-employer principles, which were substantially
changed by a Board majority in BFI Newby Island
Recyclery (Browning-Ferris), 362 NLRB No. 186
(2015), and the General Counsel has indicated the instant
case is being litigated under both the traditional joint-
employer principles predating Browning-Ferris and the
changed joint-employer principles adopted by the Board
in that decision.26 The application of two different sets
of joint-employer principles in the instant case will fur-
ther complicate the litigation and increase the challenges
that will confront the judge, the parties, the Board, and
reviewing courts.

USA contends that videoconferencing procedures have not worked
properly and have prejudiced the franchisee-respondents. I do not
reach that issue here. Even assuming the videoconferencing arrange-
ments work properly, any party or counsel whose participation is lim-
ited to videoconference will be at a disadvantage compared to other
parties and attorneys who will be participating live in all stages of the
hearing in the same room as the judge.
25 361 NLRB No. 47 (2014).
26 McDonald’s USA, LLC, 362 NLRB No. 168, slip op. at 2 fn. 1
(2015) (Members Miscimarra and Johnson, concurring in part and
dissenting in part).
MCDONALD’S USA, LLC 9
As a final matter, I disagree with my colleagues’ con-
tention that the Case Management Order permits the Re-
spondents to defer their presentation of evidence regard-
ing joint-employer status until “the end of the proceed-
ing, after the General Counsel and the Charging Parties
have rested their cases with respect to the joint-employer
issue and the unfair labor practice allegations.”27 Here,
my colleagues rely on the Order’s requirement that, after
the General Counsel and the Charging Parties have pre-
sented their corporate or nationwide joint-employer evi-
dence, McDonald’s and the separate respondents must
jointly agree “to either proceed with their own evidence
applicable on a corporate or nationwide basis regarding
the joint employer issue, or wait to present this evidence
until General Counsel and Charging Parties rest their
cases with respect to the joint employer issue entirely.”
For several reasons, I believe the Case Management Or-
der places the Respondents in the disadvantageous posi-
tion of introducing some or all of their corporate and
nationwide joint-employer evidence before understand-
ing what evidence exists regarding the alleged ULPs in
this case.
(a) Although the sentence relied upon by my col-
leagues purports to permit some deferral of the Respond-
ents’ corporate or nationwide joint-employer evidence,
this is contradicted by the Order’s statement (in the same
paragraph) that “[a]ll presentations of joint employer
status evidence applicable on a corporate or nationwide
basis will take place in Manhattan.”28
(b) The availability of any deferral “option” is ren-
dered illusory by the Order’s requirement that all re-
spondents jointly make a single choice whether to imme-
diately introduce all corporate or nationwide joint-
employer evidence immediately after such evidence has
been presented by the General Counsel and the Charging
Parties, or to defer such evidence until the General Coun-
sel and the Charging Parties have rested their joint-
employer cases. Thus, the “option” of deferring the
presentation of corporate or nationwide joint-employer
evidence is not available to any respondent or group of

27 Majority opinion (emphasis added).
28 Case Management Order, p. 6 (emphasis added). As noted previ-
ously, the Order provides for “three phases” of hearings, to be conduct-
ed in Manhattan, Chicago, and Los Angeles, respectively. Because the
Order states that all corporate or nationwide joint-employer evidence
“will take place in Manhattan,” this would mean that the respondents
must introduce their corporate or nationwide joint-employer evidence,
at the latest, before the General Counsel has introduced any evidence
regarding unfair labor practices allegedly committed by franchisees
located in the Midwest and California. (Evidence regarding ULPs
allegedly committed by Midwest and California respondents is reserved
for the phase 2 and 3 hearings in Chicago and Los Angeles.)
respondents if other respondents insist on presenting
their joint-employer defense immediately.
(c) The deferral “option” is illusory in another way. It
leaves the General Counsel and the Charging Parties in
complete control of when the Respondents must present
their corporate or nationwide joint-employer evidence.
The Order provides that, at the latest, the Respondents
must present all their corporate or nationwide joint-
employer evidence when the “General Counsel and
Charging Parties rest their cases with respect to the joint
employer issue entirely,” and the General Counsel and
the Charging Parties may rest their cases “with respect to
the joint employer issue entirely” at any time during any
hearing phase.29
(d) Regardless of what “option” may be jointly decid-
ed upon, the question of whether to defer joint-employer
evidence presents the Respondents with a Hobson’s
choice. If the Respondents choose to present their corpo-
rate or nationwide joint-employer evidence immediately
(after such evidence has been presented by the General
Counsel and the Charging Parties), the Respondents will
not know what evidence may be introduced regarding
many or all of the ULP allegations at issue in this enor-
mous case. Yet, if the Respondents choose to defer their
corporate or nationwide joint-employer evidence (until
the General Counsel and the Charging Parties have rested
their cases “with respect to the joint employer issue en-
tirely”), this could delay the Respondents’ presentation
of joint-employer evidence for an indefinite length of
time, possibly spanning years, during which all interim
case-related issues would be resolved by the judge or the
Board based solely on joint-employer evidence presented
by the General Counsel and the Charging Parties.
As reflected in the above discussion, the Case Man-
agement Order renders uncertain something as straight-
forward as what type of evidence must be presented
when and by whom. If the General Counsel must intro-
duce all evidence regarding alleged ULPs and joint-
employer issues, and if this must be done before the Re-
spondents will be required to present their own evidence,
the Case Management Order could easily state this prop-
osition directly, or the Board could impose this require-
ment in our disposition of the pending motion. Neither
the Case Management Order nor my colleagues’ opinion
provides for the presentation of evidence in this straight-

29 See Case Management Order, p. 6 (“General Counsel has indicat-
ed that while evidence applicable on a corporate or nationwide basis
will comprise a substantial component of the overall evidence with
respect to the alleged joint employer relationship, they also intend to
present evidence to establish joint employer status involving individual
franchisee Respondents, possibly in all three hearing locations.”) (em-
phasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
forward manner. Instead, the judge has created made-to-
order procedures largely built around specifications de-
vised by the General Counsel, where (i) the joint-
employer evidence takes precedence over whether or
what types of alleged ULPs have been committed; (ii)
the litigation requires the separate respondents to partici-
pate in lengthy Board proceedings, most of which will
have little to do with the alleged violations attributed to
each individual franchisee; (iii) each separate respondent
will have a substantial incentive to abandon any defense
or to forego any active participation in most or all pro-
ceedings; and (iv) the judge has reserved the right to
deem it “necessary” to deny separate respondents their
right to participate in this case using counsel of their own
choosing.
The Board should demand more when it comes to the
procedures governing our cases, especially when, as
here, the cases at issue are likely to remain in litigation
for many years. For the above reasons, I would sustain
the Respondents’ objections to the Case Management
Order. Accordingly, I respectfully dissent.
Dated, Washington, D.C. January 8, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
CASE MANAGEMENT ORDER
Pursuant to the Motion for a Case Management Order filed
by General Counsel, and the Oppositions and other positions
submitted, the following procedures shall apply in connec-
tion with the pre-hearing period and the hearing of the above
case.
Abbreviated Case Caption: All documents filed in this
case may bear the abbreviated caption set forth below:
Lewis Foods o f 4 2 n d Street, LLC, A McDonald’s
Franchisee, and McDonald’s USA, LLC, Joint Em-
ployers, et al. and Fast Food Workers Committee
and Service Employees International Union, CTW,
CLC, et al. Cases 02–CA–093893, et al. 04–CA–
125567, et al. 13–CA–106490, et al. 20–CA–132103, et
al. 25–CA–114819,et al. 31–CA–127447,et al.
Communications with the Division of Judges: Counsel
are to contact me by e-mail only in emergency situations,
unless specifically authorized to do so. In non-emergency
situations, counsel are to communicate with me by letter filed
electronically. Counsel are directed not to send me e-mails
with documents attached unless specifically authorized to do
so by our office or required to do so pursuant to the NLRB
Rules and Regulations. Documents sent to the Division of
Judges’ office by e-mail or other means will not be consid-
ered until they are electronically filed.
Petitions to Revoke Subpoenas and claims of privilege:
Petitions to Revoke Subpoenas must be made within 5 days
after the date of service of the subpoena, pursuant to Sections
102.31 and 102.111 of the Board’s Rules and Regulations.
Oppositions to Petitions to Revoke Subpoenas shall be filed
within 5 days after the date of service of the Petition to Re-
voke in the same manner as the Petition to Revoke. Counsel
representing more than one party are encouraged, to the ex-
tent practicable, to combine Petitions to Revoke and Opposi-
tions on behalf of more than one party into one document.
Given the number of Petitions to Revoke Subpoenas, there
will be no Reply papers. Parties filing Petitions to Revoke
Subpoenas are directed to ensure that they electronically file
both the Petition to Revoke and the Opposition.
Oral argument regarding Petitions to Revoke, to the extent
necessary, shall take place when the hearing in this case
opens in Manhattan on March 30, 2015. Prior to the opening
of the hearing, the parties are directed to confer and begin
discussions regarding the most efficient means for the pro-
duction of documents and electronically stored information.
A diligent effort to cooperate will conserve resources and
enhance the efficiency of the process for all concerned.
Parties asserting that a ruling on a Petition to Revoke Sub-
poena requires the production of privileged material not sub-
ject to disclosure should prepare a privilege index log setting
forth, for each such document: (i) a description of the docu-
ment, including its subject matter and the purpose for which
it was created; (ii) the date the document was created; (iii)
the name and job title of the document’s author; and (iv) to
the extent applicable, the name and job title of the docu-
ment’s recipients. Any party seeking an in camera inspec-
tion of documents listed in another party’s privilege index
log shall submit a written request articulating specific
grounds for an in camera inspection, establishing an adequate
factual basis for a good-faith belief that an inspection may
reveal materials not protected by the privilege.
Other pre-hearing motions: All prehearing motions, in-
cluding requests for protective orders, shall be filed on or
before March 13, 2015. All opposition papers shall be filed
on or before March 20, 2015. Motions and Oppositions shall
consist of no more than 20 pages. Counsel representing more
than one franchisee Respondent are encouraged but not re-
quired to file one submission on behalf of all franchisee Re-
spondents they represent, to the extent practicable. Charging
Parties are likewise encouraged but not required to file one
submission.1 There will be no Reply papers, and no oral ar-
gument, unless the parties are specifically directed to do so.
Any party seeking a protective order should submit a writ-
ten statement making a specific factual showing that disclo-

1 General Counsel’s request that I require parties to file joint
page-limited motions is denied, as is his request that I require parties
to choose a lead or liaison counsel to act on behalf of other parties.
Such limitations, which circumscribe the prerogatives of the parties
in terms of their choice of representative and the presentation of their
positions, will not be imposed unless it becomes necessary.
MCDONALD’S USA, LLC 11
sure of the materials in question would result in a clearly
defined and serious injury. Counsel representing more than
one franchisee Respondent are directed to file one submission
with respect to any request for a protective order on behalf
of all franchisee Respondents that they represent. Charging
Parties are likewise directed to file one submission.
If it is determined that a protective order is necessary, a
proposed protective order will be requested from the relevant
party.
Presentation of the case: The hearing in this case will
take place in three phases, with adjournments between each
phase. The first phase will take place in Manhattan, the
second phase in Chicago, and the third phase in Los Angeles.
The first phase, in Manhattan, will begin with corporate or
nationwide evidence pertinent to the joint employer allega-
tions, and will continue with evidence of joint employer
status and evidence regarding the specific violations allegedly
committed at the franchisee locations in New York City and
Philadelphia. The second and third phases will involve the
presentation of evidence of joint employer status and evi-
dence regarding the specific violations allegedly committed
at the franchisee locations in the Midwest and California,
respectively.2
At the opening of the hearing on March 30, 2015, I will
hear any oral argument necessary on the parties’ Petitions to
Revoke Subpoenas, and issue rulings. The hearing will then
adjourn until May 11, 2015 to allow for the production of
any documents and electronically stored information and
adjudication of any claims of privilege. The parties are spe-
cifically directed to confer during the initial adjournment in
order [ to] attempt to reach stipulations of fact, and stipula-
tions regarding the authenticity and admissibility of docu-
ments and electronically stored information.
When the hearing resumes, General Counsel will present
evidence applicable on a corporate or nationwide basis per-
taining to the alleged joint employer status of McDonald’s
USA, LLC (“McDonald’s”) with the Respondent franchisees.
Charging Parties will then present their evidence applicable
on a corporate or nationwide basis regarding the alleged joint
employer relationships. General Counsel has indicated that
while evidence applicable on a corporate or nationwide basis
will comprise a substantial component of the overall evidence
with respect to the alleged joint employer relationship, they
also intend to present evidence to establish joint employer
status involving individual franchisee Respondents, possibly
in all three hearing locations. As a result, after General
Counsel (and Charging Parties) present evidence of joint em-

2 The evidence regarding joint employer status applicable on a
corporate or nationwide basis can be presented in one discrete por-
tion of the hearing, likely involving one group of witnesses. I there-
fore find that hearing all of the evidence regarding the alleged viola-
tions at the franchisee locations throughout the country first, fol-
lowed by the evidence regarding joint employer status, as suggested
by Respondents, would ultimately be less efficient than the order of
the presentation of evidence proposed by General Counsel. Re-
spondents’ suggested approach would likely result in holding two
separate hearings in all three locations.
ployer status applicable on a corporate or nationwide basis,
McDonald’s and the franchisee Respondents will have the
option to either proceed with their own evidence applicable
on a corporate or nationwide basis regarding the joint em-
ployer issue, or wait to present this evidence until General
Counsel and Charging Parties rest their cases with respect to
the joint employer issue entirely. McDonald’s and the fran-
chisee Respondents will be required to confer and jointly
choose one of the foregoing options, applicable to all Re-
spondents. All presentations of joint employer status evi-
dence applicable on a corporate or nationwide basis will take
place in Manhattan.
After General Counsel and Charging Parties’ presentation
of evidence applicable on a corporate or nationwide basis
concludes, General Counsel will then present evidence spe-
cific to the franchisee Respondents located in New York City
and Philadelphia. General Counsel will present all evidence
with respect to each specific franchisee in turn, including
evidence pertinent to the joint employer issue and evidence
relevant [to] the alleged violations. General Counsel will
then rest their case with respect to that particular franchisee.
Charging Parties will then present all of their evidence with
respect to the franchisee, in the same manner. McDonald’s
and the franchisee Respondent will then present any evidence
specific to the franchisee, including both evidence regarding
joint- employer status and evidence in defense of the unfair
labor practice allegations.3 General Counsel will prepare a
schedule for the presentation of franchisee evidence—includ-
ing the order and anticipated dates of franchisee evidence to
be presented—in consultation with counsel for the franchisee
Respondents in order to ensure an efficient presentation of
evidence and minimize the burden on the franchisee Re-
spondents.
Parties and their counsel are encouraged but not required
to confer regarding the presentation of evidence, including
the questioning of witnesses and any evidentiary argument,
and to make one presentation on behalf of all parties whose
positions with respect to a particular issue are congruent.
This could include having one attorney present a position or
question a witness on behalf of several parties, where their
positions coincide, if the parties so desire. A diligent effort
to cooperate will conserve parties’ resources and result in a
more efficient case presentation.4

3 General Counsel’s request for a general evidentiary presumption
that the evidence of joint employer status applicable on a corporate
or nationwide basis applies to each individual franchisee absent new
evidence to the contrary presented by that franchisee is denied.
General Counsel bears the burden of proof with respect to the joint
employer issue overall, and must support any contention that specif-
ic documents, practices or procedures are applicable on a corporate
or nationwide basis.
4 General Counsel’s request that I require parties to designate one
attorney to conduct cross-examination on their behalf, or preclude
cross-examination by franchisee Respondents of other franchisee
Respondents’ witnesses, is denied. Such blanket measures would
unduly restrict the rights of the franchisee Respondents in their
cross-examination of witnesses and choice of counsel, and the possi-
ble presentation of cumulative evidence can be addressed as it arises.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Presentation of the evidence in Chicago and Los Angeles
will proceed in the same manner as the presentation of the
evidence involving the franchisees in New York City. After
General Counsel rests its case regarding joint employer sta-
tus, McDonald’s and the franchisee Respondents will have
the opportunity to present evidence applicable on a corporate
or nationwide basis with respect to this issue, if they have not
already done so.
Notice to parties regarding the presentation of evi-
dence: In order to proceed in this manner, parties must have
adequate information and sufficient advance notice to allow
them to participate in the hearing to the extent that they de-
sire to do so. Therefore, General Counsel will provide the
franchisee Respondents and the Charging Parties with specif-
ic information regarding the presentation of evidence pertain-
ing to the alleged joint employer status of McDonald’s and
the Respondent franchisees, including the identities of wit-
nesses and dates of their testimony. General Counsel will
provide such information regarding joint employer evidence
to be presented both during the phase of the hearing address-
ing evidence applicable on a corporate or nationwide basis,
and when evidence regarding joint employer status will be
presented in the context of the cases involving the individual
franchisee Respondents. General Counsel will provide this
information sufficiently in advance of the presentation of
evidence to allow for parties wishing to participate in the
hearing by videoconference to do so. McDonald’s and the
franchisee Respondents will provide such information re-
garding their case presentations to the Charging Parties in a
similar manner.
Hearing participation by videoconference: Counsel and
parties wishing to participate in the hearing by videoconfer-
ence shall give the General Counsel sufficient advance no-
tice for t he General Counsel to make the necessary arrange-
ments. Counsel and parties will participate in the hearing by
videoconference from the agency’s Regional office closest to
them, using agency equipment. General Counsel will test the
videoconferencing equipment and ensure that it is in working
order, and will provide a video technician to attend immedi-
ately to any technical difficulties which might arise. Camer-
as at both the hearing location and the Regional Office from
which counsel will be participating by videoconference will
be adjustable, in order to provide not only a close-up view of
the witness and counsel but also a panoramic view of the
entire hearing room. Counsel appearing by videoconference
must be audible to the court reporter.
General Counsel will provide a set of exhibits at the Re-
gional office where counsel will be participating by videocon-
ference. In addition, counsel physically present at the hear-
ing will provide counsel participating by videoconference
with any additional exhibits not yet in the record that they
will seek to use during the examination of the witness at the
inception of the witness’ testimony.
Hearing dates: As discussed above, the hearing will open
at the offices of Region 2 in Manhattan on March 30, 2015.
After oral argument, if any, and rulings on the Petitions to
Revoke Subpoenas, the hearing will adjourn, and will resume
at the offices of Region 2 on May 11, 2015. The hearing will
continue the weeks of May 26, 2015, June 1, 2015, June 8,
2015, and June 15, 2015. Any additional hearing time nec-
essary to complete the Manhattan phase of the case will be
scheduled in the future.
Dated: New York, New York March 3, 2015
LAUREN ESPOSITO, Administrative Law Judge.