UNITED STATES DISTRICT COURT FOR THE …static.politico.com/99/d2/9546aa3c45a08314855022955daa/nlrb... · (May 22, 2014 Goldsmith to Kearney letter, attached ... each issued an Order

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Alejandro Ortiz, Esq.

Jamie Rucker, Esq.

Julie Ulmet, Esq.

National Labor Relations Board, Region 2

26 Federal Plaza, Room 3614

New York, New York 10278-0104

(212) 264-0300

Rachel V. See, Esq.

National Labor Relations Board

1015 Half Street SE

Washington, DC 20570

(202) 273-3848

Counsel for the Applicant

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

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NATIONAL LABOR RELATIONS BOARD,

Applicant,

v. USDJ _________

15 - Misc. - ________

MCDONALD’S USA, LLC,

Respondent.

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APPLICATION FOR AN ORDER REQUIRING OBEDIENCE

TO ADMINISTRATIVE SUBPOENA DUCES TECUM

The National Labor Relations Board (the “Board” or the “Applicant”), respectfully

applies to this honorable Court, pursuant to Section 11(2) of the National Labor Relations Act, as

amended, (the “Act”), 29 U.S.C. § 161(2), for an order requiring McDonald’s USA, LLC

(“McDonald’s” or “Respondent”), to obey a subpoena duces tecum issued by the Board and duly

served on Respondent in the manner provided by law. In support of said application, upon

information and belief, Applicant respectfully shows as follows:

1. Applicant is an administrative agency created by the Act, 29 U.S.C. § 151, et seq.,

and is empowered and directed to administer the provisions of the Act, including the power to

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investigate unfair labor practices as defined in Section 8 of the Act, 29 U.S.C. § 158, and issue

complaints and hold administrative hearings as provided in Section 10 of the Act, 29 U.S.C.

§ 160.

2. Pursuant to Section 6 of the Act, 29 U.S.C. § 156, the Board has issued Rules and

Regulations (the “Board’s Rules”), governing the conduct of its operations, which rules and

regulations have been duly published in the Federal Register (24 F.R. 9095), as provided for in

the Administrative Procedure Act, 5 U.S.C. § 552. This Court may take judicial notice of the

Board’s Rules by virtue of the Federal Register Act, 44 U.S.C. § 1507.

3. Jurisdiction is conferred on this Court by Section 11(2) of the Act, 29 U.S.C.

§ 161(2), giving the District Courts jurisdiction to issue orders, upon application of the Board, to

enforce subpoenas issued by the Board.

4. Jurisdiction is also conferred on this Court by 28 U.S.C. § 1337, which gives the

District Courts original jurisdiction “of all suits and proceedings under any law regulating

commerce,” without regard to citizenship of the parties or the sum or value in controversy.

5. Section 11(1) of the Act authorizes the Board, in furtherance of the broad

Congressional purposes of promoting the free flow of commerce and protecting workers’

exercise of full freedom of association, to issue to any person subpoenas requiring attendance

and testimony of witnesses or production of any evidence that “relates to any matter under

investigation or in question.”

6. The Fast Food Workers’ Committee, Service Employees International Union, CTW,

CLC, Pennsylvania Workers Organizing Committee, a Project of the Fast Food Workers

Committee, Workers Organizing Committee of Chicago, Western Workers Organizing

Committee, and Los Angeles Organizing Committee (collectively, the “Charging Parties”) filed

unfair labor practice charges (the “Charges”) pursuant to Section 102.9, et seq., of the Board’s

Rules, alleging that Respondent McDonald’s, as a joint employer with the franchisee named in

each charge, violated Sections 8(a)(1) and 8(a)(3) of the Act. (29 U.S.C. §§ 158(a)(1), (3)). The

charges were filed throughout the United States, in various of the Board’s regional offices,

including regional offices located in Philadelphia, Pennsylvania (Region 4); Chicago, Illinois

(Region 13); San Francisco and Los Angeles, California (Regions 20 and 31); Indianapolis,

Indiana (Region 25); and New York, New York (Region 2). A complete list of Charges, and the

Respondents identified in each Charge, is set forth in Appendix A. The Charges were filed and

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amended on the dates set forth in Appendix B. The relevant regional office of the National

Labor Relations Board conducted an investigation of each Charge.

7. McDonald’s is one of the nation’s largest employers, with its U.S. restaurants

employing approximately 750,000 workers. In 2014, McDonald’s Corporation, the global entity

of which McDonald’s is a wholly-owned subsidiary, reported net income of $4.8 billion based

off of revenue of $27.4 billion, with $8.77 billion in revenue coming from its U.S. operations.

http://news.mcdonalds.com/press-releases/mcdonald-s-usa-announces-new-employee-benefit-

package-including-wage-increase-an-nyse-mcd-1185520 (last accessed September 18, 2015);

(See McDonald’s 2014 Form 10-K, attached hereto as Applicant Exhibit 1, at 12.)

8. McDonald’s is in the business of franchising. (McDonald’s 2013 Franchise

Disclosure Document, attached hereto as Applicant Exhibit 2.) And as it publicly states, it

expects its franchisees to adhere to specific operational requirements; the “essence” of operating

a McDonald’s franchise is “the establishment and maintenance of a close personal working

relationship with McDonald’s in the conduct of Franchisee’s McDonald’s restaurant business,

Franchisee’s accountability for the obligations contained in this Franchise, and Franchisee’s

adherence to the tenets of the McDonald’s System.” (Id.)

9. During the investigation, McDonald’s submitted a position statement to the Board in

which it described, among other topics, the role of its business consultants, also known as

operations consultants (“Operations Consultants”). (May 22, 2014 Goldsmith to Kearney letter,

attached hereto as Applicant Exhibit 3, pp. 9—10.) The statement describes these consultants as

primarily responsible for administering McDonald’s formal Restaurant Operations Improvement

Process and maintaining adherence to the McDonald’s franchise system. (Id.) McDonald’s has

also described the job duties of Operations Consultants in postings seeking applicants for those

positions. (See Appl. Exh. 29, below, at MCDNLRB 033099; see also e-mail messages from

Operations Consultants produced by McDonald’s pursuant to subpoena, attached hereto as

Applicant Exhibit 4.)

10. On December 19, 2014, based on their investigations of the relevant Charges, the

Regional Directors for Regions 2, 4, 13, 20, 25, and 31 of the Board, on behalf of the General

Counsel of the Board, each issued an Order Consolidating Cases, Consolidated Complaint, and

Notice of Hearing against Respondent McDonald’s, alleging that McDonald’s, as a joint

employer with the other named respondents, violated Sections 8(a)(1) and (3) of the Acts

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(collectively, the “December 2014 Complaints”). On February 13, 2015, the Regional Director

for Region 31 issued a second Order Consolidating Cases, Consolidated Complaint, and Notice

of Hearing against Respondent McDonald’s, alleging that McDonald’s, as a joint employer with

the other named respondents, violated Sections 8(a)(1) and (3) of the Act (the “February 2015

Complaint”; collectively, with December 2014 Complaints, the “Complaints”). (Complaints and

affidavits of service attached hereto as Applicant Exhibits 5a, 5b, 5c, 5d, 5e, 5f, and 5g; see also

https://www.nlrb.gov/news-outreach/fact-sheets/mcdonalds-fact-sheet (last accessed Sept. 29,

2015).)

11. On January 5, 2015, the General Counsel issued an Order transferring the December

2014 Complaints issued by the Regional Directors of Regions 4, 13, 20, 25, and 31 to Region 2.

(Order Transferring Cases to Region 2 attached hereto as Applicant Exhibit 6a). On January 6,

2015, the Regional Director for Region 2 issued an Order consolidating the December 2014

Complaints. (Order Consolidating Cases (the “January 2015 Consolidation Order”) attached

hereto as Applicant Exhibit 6b). By order dated January 7, 2015, Chief Administrative Law

Judge Biblowitz assigned Administrative Law Judge Lauren Esposito (“Judge Esposito” or “ALJ

Esposito”) to hear the consolidated McDonald’s cases. (Order Assigning Trial Judge attached

hereto as Applicant Exhibit 6c.) On March 3, 2015, the General Counsel issued an order

transferring the February 2015 Complaint to Region 2. (Order Transferring Cases to Region 2

attached hereto as Applicant Exhibit 6d.) On March 23, 2015, the Regional Director for Region

2 issued an Order consolidating the February 2015 Complaint with the consolidated cases

pending in Region 2, based on the December 2014 Complaints and January 2015 Consolidation

Order. (Order Consolidating Cases attached hereto as Applicant Exhibit 6e.)

12. On December 31, 2014, Respondent McDonald’s filed Answers to each of the

December 2014 Complaints. On February 27, 2015, Respondent McDonald’s filed an Answer to

the February 2015 Complaint. In each Answer, McDonald’s denied the joint employer

allegations regarding it. Respondent McDonald’s also filed a Motion to Sever the consolidated

cases on about January 15, 2015. (McDonald’s’ Motion to Sever is attached hereto as Applicant

Exhibit 7.)

13. On February 9, 2015, Counsel for the General Counsel served on Respondent

McDonald’s Subpoena Duces Tecum B-1-L39K3Z (“the Subpoena”), directed to the Custodian

of Records of Respondent McDonald’s USA, LLC, 2111 McDonald’s Drive, Oak Brook, IL

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60523, directing Respondent McDonald’s to produce certain documents at the hearing on the

Complaint, at 26 Federal Plaza, Suite 3614, New York, NY 10278, on March 30, 2015. The

subpoena requests the production of 118 categories of information, all relevant to the allegation

of joint employer, broken down into the following categories: (1) McDonald’s Organization and

System (Pars. 1 through 14); (2) Hiring Practices With Respect to Charged Franchises (Pars. 15

through 23); (3) Employee Training (Pars. 24 through 41); (4) Employee Conduct (Pars. 42

through 51); (5) Wages and Benefits (Pars. 52 through 62); (5) Hours and Assignments (Pars. 63

through 92); (6) Direct Review and Control (Pars. 93 through 108); and (7) Response to the Fast

Food Fight for $15 Campaign (Pars. 109 through 118). Service was effectuated,1 pursuant to

agreement of the parties,2 via regular first class mail to Respondent’s attorney, Willis J.

Goldsmith, Esq., Jones Day, 222 East 41st Street, New York, NY 10017. (Subpoena Duces

Tecum and cover letter attached hereto as Applicant Exhibit 8a.)

14. On February 23, 2015, Respondent McDonald’s, pursuant to Section 102.31(b) of the

Board’s Rules, filed a Petition to Revoke the Subpoena (the “Petition to Revoke”), amended on

about March 24, 2015. (Petition to Revoke and Amended Petition attached hereto as Applicant

Exhibits 9a and 9b.) In its Petition to Revoke, McDonald’s said there were about 240 custodians

located throughout the country for whom McDonalds would have to review e-mail or non-email

ESI (“electronically stored information”) to respond to the Subpoena. (Applicant Exhibit 9a, p.

20.) Further, McDonald’s estimated the costs of reviewing and producing the requested ESI and

argued complying with the Subpoena would be unduly burdensome under Federal Rule of Civil

Procedure 26(b)(2)(C) and the Sedona Principles. (Applicant Exhibit 9a, p. 17–22).

15. On March 3, 2015, ALJ Esposito issued a Case Management Order (the “Case

Management Order”). (Case Management Order attached hereto as Applicant Exhibit 10.) The

Case Management Order, inter alia, set dates for the administrative hearing to open on March

30, 2015, and continue on May 11, 2015, and additional dates thereafter.

16. On March 5, 2015, counsel for the General Counsel filed an Opposition to the

Petition to Revoke the Subpoena (the “Opposition to Petition to Revoke”). In the Opposition to

the Petition to Revoke, counsel for the General Counsel noted that he had made various

1 McDonald’s admitted it received the subpoena by mail on February 17, 2015. (Applicant Exhibit 9a (Petition to

Revoke, p. 7).) 2 Counsel for McDonald’s agreed to accept service on behalf of McDonald’s via a February 9, 2015 email.

(February 9, 2014 Goldsmith to Rucker email attached hereto as Applicant Exhibit 8b.)

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unsuccessful attempts to confer with counsel for McDonald’s in an effort to reduce the scope of

McDonald’s’ search by, inter alia, reducing the number of relevant custodians, improving

McDonald’s’ search methodologies, and the use of filtering tools prior to attorney review, all

issues that should be discussed between the parties, as envisioned by both the Federal Rules and

the Sedona Principles. (Applicant Exhibit 11 p. 10.) General Counsel pointed out that through

discussion it might be possible to reduce the document volume and hence the burden on

McDonald’s (Id., at p. 10-11.).

17. On March 19, 2015, ALJ Esposito issued an Order Denying the Petition to Revoke

(the “Order Denying Petition to Revoke”). (Order Denying Petition to Revoke attached hereto as

Applicant Exhibit 12.) The ALJ denied the Petition to Revoke in its entirety and directed the

parties to meet and confer in good faith beginning on March 26, 2015. (Applicant Exhibit 12, p.

11.) The ALJ observed that determinations of burdensomeness were “premature, because the

parties have yet to even begin the process of meaningfully conferring regarding the [ESI] sought

by the Subpoena.” (Id., p. 10-11.) In particular, she noted, “Without even the barest attempt to

engage in meaningful dialogue which could limit the scope of production, the various statements

and calculations provided by [McDonald’s] in its Petition to Revoke regarding the purported cost

of producing electronically stored information in response to the Subpoena have no probative

value whatsoever.” (Id., p. 11.)

18. On about March 24, 2015, McDonald’s counsel submitted a motion to amend its

petition to revoke the Subpoena, the most notable change of which was to further reduce, by a

factor of about 4, its estimate of the cost of searching for ESI. (Applicant Exhibit 9b.)

19. On March 26, 2015, counsel for McDonald’s and for the General Counsel met and

conferred regarding McDonald’s’ response to the subpoena, especially the production of ESI (the

“March 26 Meet and Confer”). (See (March 27, 2015 Rucker to Goldsmith letter attached hereto

as Applicant Exhibit 13; see also Applicant Exhibit 15 (Hearing Transcript, Vol. I), at 74:13.) At

this meeting, McDonald’s disclosed the names and/or job titles of 28 custodians it believed had

documents responsive to the Subpoena. (See Appl. Exh. 13.) It did not disclose the names and

job titles of the remaining 212 custodians it previously cited in its Petition to Revoke. (See id.)

20. In a March 27, 2015 letter, the General Counsel followed up on discussion at the

March 26 Meet and Confer about McDonald’s’ initial search for ESI responsive to the Subpoena.

(Applicant Exhibit 13.) In that letter, the General Counsel requested “(1) the list of the 240

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custodians (by name and job title) you initially identified as potentially possessing relevant

evidence and (2) the organizational chart asked for in paragraph one of the General Counsel’s

subpoena.” (Id.)

21. In a March 29, 2015 letter responding to the March 27, 2015 letter, counsel for

McDonald’s, instead of providing the General Counsel with the list of the 240 custodians and the

organizational chart, again identified the twenty-eight (28) custodians who he “believe[s] are

most likely to possess documents and ESI responsive [to the McDonald’s Subpoena].” Of those

28 custodians, only 6 were Operations Consultants responsible for a metropolitan area covering a

charged franchisee. (March 29, 2015 Goldsmith to Rucker Letter attached hereto as Applicant

Exhibit 14.)

22. The unfair labor practice hearing before ALJ Esposito opened on March 30, 2015, for

the purpose of addressing issues such as outstanding petitions to revoke and subpoena

compliance. At this hearing, counsel for McDonald’s acknowledged the General Counsel’s

request for the names and job titles of the remaining 212 custodians and, while not providing that

information, clarified that “we are not limiting the search to the 28 people whose names we have

provided to the General Counsel. It’s a start.” (Relevant portions of administrative transcript

(pages 74–86) attached hereto as Applicant Exhibit 15.)

23. On April 1, 2015, the General Counsel sent a letter to McDonald’s regarding the ESI

production. In the letter, General Counsel again asked McDonald’s to disclose its remaining

custodians and identified, by Subpoena paragraph, the documents he believed McDonald’s could

readily identify and produce, such as training manuals it provides franchisees. (April 1, 2015

Letter from Rucker to Goldsmith attached hereto as Applicant Exhibit 16.) McDonald’s

responded in an April 6, 2015 letter. (April 6, 2015 Goldsmith to Rucker Letter attached hereto

as Applicant Exhibit 17.) In the letter, McDonald’s again refused to disclose the names and job

titles of its 212 remaining custodians, asserting that such a request “is little more than an

interrogatory.” (Id. at 3.)

24. On April 8, 2015, the General Counsel and McDonald’s participated in a second

meet-and-confer session. On April 15, 2015, General Counsel sent McDonald’s a letter

following up on this meeting, acknowledging receipt of some documents but noting the absence

of the governing franchise agreements and other documents he expected to receive. (April 15,

2015 Rucker to Davis Letter attached hereto as Applicant Exhibit 18.) McDonald’s responded in

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an April 16, 2015 email message, saying documents would be produced on a “rolling basis.”

(April 16, 2015 Goldsmith to Rucker email attached hereto as Applicant Exhibit 19.)

25. On April 9, 2015, the ALJ approved a Stipulated Protective Order, and on April 27,

2015, approved a revised Stipulated Protective Order (the “Protective Order”). (April 9, 2015

Stipulated Protective Order attached hereto as Applicant Exhibit 20a; April 27, 2015 Stipulated

Protective Order attached hereto as Applicant Exhibit 20b.) The Protective Order allows parties

to designate sensitive information “confidential” or “highly confidential—attorney’s eyes only,”

provides express instructions on how parties are to handle such material, and includes a

procedure for any breaches of that order.

26. On April 30, 2015, the General Counsel sent a letter to McDonald’s regarding the

ESI production. (April 30, 2015 Rucker to Goldsmith Letter attached hereto as Applicant

Exhibit 21.) In that letter, General Counsel asked for estimated dates by which McDonald’s

would complete ESI production from the 28 custodians it previously disclosed and offered to

consider limiting the scope of the ESI demanded by the Subpoena once he reviewed that

production, including the data sources reviewed and search methods used. (Id.) McDonald’s

responded in a letter of even date. (April 30, 2015 Goldsmith to Rucker Letter attached hereto as

Applicant Exhibit 22.) In the letter, McDonald’s detailed its efforts to comply with the

Subpoena. It said it intended to focus on ESI from the 28 previously identified custodians, that it

anticipated making rolling productions every 7–10 days, but concluded that “the end date for

overall compliance, or even compliance with particular aspects of the subpoena, is unknowable.”

(Id.)

27. On May 13, 2015, the General Counsel sent a letter to McDonald’s noting that many

of the documents provided by McDonald’s in response to the Subpoena “contain significant

redactions of unprivileged material” and requesting that McDonald’s “promptly provide

unredacted versions of those documents and that future productions comply with the subpoena

instructions.” (May 13, 2015 Ortiz to Goldsmith letter attached hereto as Applicant Exhibit 23.)

In a May 28, 2015 email, McDonald’s indicated that it would respond to this letter at the next

scheduled hearing before the ALJ. (May 28, 2015 Davis to Ortiz email attached hereto as

Applicant Exhibit 24.)

28. On May 19, 2015, ALJ Esposito issued an Order Adjourning Hearing from May 26,

2015 and Establishing Procedures for the Production of Information Pursuant to Subpoena (the

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“May 19 Order”). (May 19 Order attached hereto as Applicant Exhibit 25.) In the May 19

Order, ALJ Esposito set dates for a series of conferences to discuss the production of documents

and ESI and set a new date of October 5, 2015 for continuation of the administrative hearing.

She also said she anticipated that by June 2 McDonald’s would be prepared to establish a date to

complete production and that she hoped by June 2 McDonald’s would be done with ESI

production from the 28 previously identified custodians.

29. On June 1, 2015, McDonald’s sent the General Counsel a letter setting forth the status

of its compliance with the McDonald’s Subpoena. (June 1, 2015 Goldsmith to Rucker letter

attached hereto as Applicant Exhibit 26.) In this letter, McDonald’s said it expected to complete

ESI production from the 28 custodians by July 1, 2015. (Id. at 1.) It also said it had no

documents responsive to a number of Subpoena paragraphs, including Nos. 17, 22, 45, 65, and

68–74. (Id.)

30. On June 2, 2015, McDonald’s and the General Counsel participated in a conference

before ALJ Esposito. (Relevant portions of the transcript (pp. 164–202) attached hereto as

Applicant Exhibit 27.) Two issues related to compliance with the subpoena were discussed:

(1) the General Counsel’s request for a list of the 240 custodians and (2) McDonald’s redaction

of responsive documents. In that hearing, the ALJ ordered McDonald’s to provide to the

General Counsel by June 15, 2015, the job descriptions for the McDonald’s employees who had

been identified in McDonald’s’ February 23, 2015 list of 240 custodians likely to possess

relevant information. (Applicant Ex. 27, at 202:12.) The ALJ also ordered the parties to provide

her with statements of their position on the redaction issue by June 9, 2015. (Applicant Ex. 27,

at 169:7.)

31. On June 12, 2015, McDonald’s produced certain responsive documents to the

General Counsel, and, instead of producing the job descriptions for the 240 custodians,

McDonald’s produced job postings for approximately 44 jobs. (See June 23, 2015 Transcript at

312:4–313:14, attached hereto as Applicant Exhibit 28.) Among those were job postings for

Operations/Field Consultants and Human Resources Consultants. (Copies of the Operations

Consultants and Human Resource Consultant postings are attached hereto as Applicant Exhibits

29 and 30, respectively.)

32. On June 9, 2015, General Counsel filed a Motion to Compel Production of

Unredacted Documents (the “June 9 Filing”). On the same date, McDonald’s filed a Statement

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Regarding Redaction of Certain Documents Produced in Response to Subpoenas (the “June 9

Statement”). On June 15, 2015, ALJ Esposito issued an Order Requiring McDonald’s USA,

LLC to Produce Unredacted Documents (the “June 15 Order”). (June 9, 2015 Filing, June 9,

2015 Statement, and June 15 Order attached hereto as Applicant Exhibits 31, 32, and 33.)

33. On June 22, 2015, McDonald’s sent a letter to ALJ Esposito stating that McDonald’s

would not comply with the June 15 Order “[a]bsent a federal court order”. (June 22, 2015

Goldsmith to ALJ Esposito Letter attached hereto as Applicant Exhibit 34.)

34. On June 22, 2015, General Counsel sent a letter to McDonald’s regarding the status

of McDonald’s’ compliance with the McDonald’s Subpoena. (June 22, 2015 Rucker to

Goldsmith Letter attached hereto as Applicant Exhibit 35.) In that letter, the General Counsel

stated his position that McDonald’s should expand its set of custodians for purposes of the ESI

searches conducted in response to the Subpoena, in addition to the unilaterally selected 28.

Specifically, General Counsel identified approximately 52 additional custodians whose records

should be reviewed: twenty-three Business or Operations Consultants, seven VPs GM [General

Managers], ten VPs of QSC [Quality, Service, and Cleanliness], one of whom also served as a

VP GM, seven Directors of Operations, Field Services, and six additional personnel who,

because of their positions, duties, and anticipated knowledge, warranted inclusion as potential

custodians. (Id., at p. 2—4; PDF copies of LinkedIn websites for Heather Smedstad, John

Kujawa, and Troy Brethauer, printed on September 28, 2015, attached hereto as Applicant

Exhibits 36, 37, and 38.) In addition, based on the General Counsel’s review of the job postings

provided by McDonald’s, the General Counsel also took the position that the Human Resources

Consultants assigned to each one or more of the Respondent franchisees during the time period

should be included as relevant ESI custodians, an approximate number being 6, for a total of 58

additional custodians.3 In this letter, the General Counsel also registered his opposition to

McDonald’s’ position that it could not produce some documents because it lacked “possession,

custody, or control” over them. These include documents responsive to Subpoena paragraphs

17, 19, 21-22, 45, 65, and 69–74. (See June 1, 2015 Goldsmith to Rucker letter, attached hereto

as Applicant Exhibit 39.) In the General Counsel’s view, other documents provided by

McDonald’s undermine McDonald’s’ position and show that McDonald’s does have access to

3 Documents provided by McDonald’s state that Human Resources Consultants are “the first line of support for the

McDonald’s System, responsible for consulting on People issues and initiatives to Restaurant employees, Operations

Staff, Franchise Owners, and Field HR.” (Exh. 30 at MCDNLRB033059.)

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documents responsive to Subpoena paragraphs 17, 19, 21–22, 45, 65, and 69–74. (MDP Module

1, Shift Management, attached hereto as Applicant Exhibit 40; QSC Playbook, attached hereto as

Applicant Exhibit 41; Exhibit 3, pp. 9–10; Franke Catalog excerpt, attached hereto as Exhibit 42;

documents produced by McDonald’s pursuant to subpoena and describing the Hiring to Win

program are attached hereto as Applicant Exhibit 44.)

35. On June 23, 2015, counsel for McDonald’s and for the General Counsel participated

in a hearing before ALJ Esposito. (Relevant portions of the administrative transcript for June 23

and July 14, 2015 are attached hereto as Applicant Exhibit 43.) During the hearing the parties

discussed McDonald’s’ position that it cannot produce certain documents because it lacked

“possession, custody, or control” over those documents. (Exh. 43 at 352–356.) The General

Counsel took the position that McDonald’s does have access to these reports, whereas

McDonald’s asserted it “might have [access to the] data” underlying the reports but not the

reports and thus that it had no obligation to create the reports. The parties also discussed the

issue of the number of custodians whose material McDonald’s was searching for responsive ESI.

Counsel for McDonald’s stated that it would be willing to add “six or seven” additional

custodians to its unilaterally-selected list of twenty-eight custodians, but not more. (Id. at

319:15, 309:23–310:1, and 315:15–319:23.) Following argument, McDonald’s affirmatively

stated that it would not comply with an order by the ALJ requiring it to search for and produce

ESI from additional custodians. (Id. at 347:5–18.)

36. The failure of Respondent McDonald’s to comply with the subpoenas constitutes

contumacious conduct within the meaning of Section 11(2) of the Act 29 U.S.C. § 161(2) which

has impeded and continues to impede the Board’s prosecution of the unfair labor practice

charges hereinabove.

37. No previous application has been made for relief sought herein.

WHEREFORE, the Applicant, the National Labor Relations Board, respectfully prays:

(a) That an Order to Show Cause issue forthwith directing Respondent McDonald’s to

appear before this Court on a date certain to be fixed in said Order, and that it show cause, if

there be any, why an Order should not issue directing Respondents to produce the requested

documents to the Applicant at a time designated by the Counsel for the General Counsel.

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(b) That upon return of the Order to Show Cause, an Order issue enforcing the Subpoena

directed to McDonald’s USA, LLC, including specific directives that McDonald’s:

1. Search for and produce documents and ESI in response to Subpoena paragraphs 11, 13–

17, 23, 39–40, 48–51, 56–59, 75–76, 78–83, 91, 93–100, and 102–118, either

(a) From all the following custodians:

(i) Operations Consultants A.J. Block, Carlos Canseco, Anthony Cayce,

Rosita Cazares, Sammy Coker, Raynah D’Souza, Marco Garcia, Mary Jo

Gogola, Charles Gonsowski, Ken Greene, Ken Knowlton, Deb Krolak,

Barbara Long, Stephen Monahan, Tait Okayama, Maria Pechs,Alex Pina,

Dean Przybyszweski, Yokasta Rodrigues, Latherin Thomas, Amanda

Washington, Dora Youssef, and Ronald Zarek;

(ii) McDonald’s executives who oversee those Operations Consultants,

specifically VP General Managers Jim Carras, Myra Doria, Mwaffak

Kanjkee, Ofelia Melendrez-Kumpf, Gino Potesta, Derrick Pratt, and

Mason Smoot; VPs of QSC Ramzi Awad, Alvaro Bonta, Dan Gehret,

Francisco Gonzalez, Cedric Jones, Steve Kerley, William “Bill”

McKernan, Marcos Quesada, Jorge Salvat, and Medy Valenzuela; and

Directors of Operations Matt Ajayi, David Garcia, Bridgette Hernandez,

Bill Mitchell, Ruben Reyes, Jim Schugars, and Michelle Wherry;

(iii) Human Resources Consultant Manuel Abreu, Lori Cramer, Lucia

Lara,Thuy Pham, Nicole Saba, and Starla Spencer; and

(iv) Six additional McDonald’s executives identified by the General Counsel,

viz., Senior VP of Human Resources Heather Smedstad, VP for USA

Franchising John Kujawa, Director of Operations for U.S. Business

Integration Jeff Wayman, U.S. Vice President for Information Technology

Patrick Phalen, Operations Insights Director Michael Cramer, and Senior

Director of US Operations-Execution Scott Schwindt;

OR, if the Court deems further limitations appropriate at this juncture,

(b) From the following sample set of custodians:

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(i) Operations Consultants assigned to the charged New York franchisees,

namely A.J. Block, Ken Greene, Ken Knowlton, Barbara Long, Stephen

Monahan, and Yokasta Rodrigues;

(ii) McDonald’s executives who oversee those Operations Consultants,

specifically VP GM Mwaffak Kanjkee, VP GM Mason Smoot, VP of

QSC Steve Kerley, VP of QSC Marcos Quesada, Director of Operations

David Garcia, and Director of Operations Bridgette Hernandez;

(iii) New York Region Human Resources Consultant Manuel Abreu; and

(iv) Six additional McDonald’s executives identified by the General Counsel,

viz., Operations Insights Director Michael Cramer, VP for USA

Franchising John Kujawa, U.S. Vice President for Information

Technology Patrick Phalen, Senior VP of Human Resources Heather

Smedstad, Senior Director of US Operations-Execution Scott Schwindt,

and Director of Operations for U.S. Business Integration Jeff Wayman;

and

(v) Following the production of responsive documents and ESI for the

custodians mentioned in sub-paragraphs 1.(b)(i)– (iii) above, the Court

determine whether McDonald’s should produce responsive documents and

ESI from their regional counterparts relating to the charged franchisees in

Chicago, IL; Indianapolis, IN; Philadelphia, PA; and Sacramento and Los

Angeles, CA as identified in subparagraphs 1.(a)(i)–(iii) above;

2. Provide the NLRB with unredacted versions of all documents it has previously produced

redacted for purported non-responsiveness, lack of relevance, inclusion of proprietary

financial information, or other than assertion of attorney-client, work-product, or similar

legally recognized privilege;

3. Cease redacting documents it produces pursuant to subpoena except as necessary to protect

attorney-client, work-product, or similar legally recognized privilege;

14

4. Answer Subpoena paragraphs 17, 19, 21, 22, and 45 of the Subpoena by producing (i) Hiring

to Win documents and ESI from Aon and (ii) forms and other documents it provides to its

franchisees through Franke; and

5. Produce reports responsive to paragraphs 65 and 69–74 of the Subpoena, including the Daily

Activity Report, the All Hours VLH vs. Schedule (a/k/a Labor Pre-Review) report, LAB

Report, Projected LAB Report, Fixed Labor Analysis report, All Hours Actual Review

Review (a/k/a Labor Post Review) report, Crew Staffing Budget Analysis Report, and

Manager Schedule Violations Report for the charged franchisees covering the periods of June

and December 2012, February and August 2013, and April and October 2014.

Dated at New York, New York

This ___day of September 2015.

_________________________________

Alejandro Ortiz, Esq.

Jamie Rucker, Esq.

Julie Ulmet, Esq.

National Labor Relations Board, Region 2

26 Federal Plaza, Suite 3614

New York, NY 10278

(212) 264-0300

Rachel V. See, Esq.

National Labor Relations Board

1015 Half Street SE

Washington, DC 20570

(202) 273-3848

Counsel for the Applicant

/s/ Jamie Rucker

30

15

APPENDIX A

CASE NUMBER RESPONDENTS IDENTIFIED IN CHARGE

02-CA-093893

McDonald’s and McDonald’s located at 220 West 42nd Street, New

York, NY, whose correct name is Lewis Foods of 42nd

Street, LLC

(hereinafter, “Lewis Foods”)

02-CA-098662 McDonald’s and James R Lewis d/b/a, Lewis Foods of 42nd Street, LLC,

whose correct name is Lewis Foods of 42nd

Street, LLC (hereinafter,

“Lewis Foods”)

02-CA-093895

McDonald’s and McDonald’s located at 1188 6th Avenue New York,

NY 10036, whose correct name is AJD, Inc. (hereinafter, “AJD”)

02-CA-097827 McDonald’s and Elaine Diekmann d/b/a Bea & AJD, whose correct

name is AJD, Inc. (hereinafter, “AJD”)

02-CA-093927

McDonald’s and McDonald's located at 280 Madison Avenue, New

York, NY 10016, whose correct name is John C Food Corp. (hereinafter,

“John C Food”)

02-CA-098659 McDonald’s and Richard R. Cisneros d/b/a John C. Food Corp., whose

correct name is John C Food Corp (hereinafter, “John C Food”)

02-CA-094224

McDonald’s and McDonald’s located at 1651 Broadway, New York, NY

10019, whose correct name is 18884 Food Corporation (hereinafter,

“18884 Food”)

02-CA-098676 McDonald’s and Linda Dunham d/b/a 18884 Food Corp. (or Dunham

Management Corp.), whose correct name is 18884 Food Corporation

(hereinafter, “18884 Food”)

02-CA-094679

McDonald’s and McDonald's located at 14 East 47th Street. New York,

NY 10017, whose correct name is 14 East 47th

Street, LLC (hereinafter,

“14 E. 47th St.”)

02-CA-098604 McDonald’s and Ninosca Paulino d/b/a 14 East 47th Street, LLC, whose

correct name 14 East 47th

Street, LLC (hereinafter, “14 E. 47th St.”)

02-CA-097305 McDonald’s and Atlantic Avenue, LLC, whose correct name is 840

Atlantic Ave., LLC (hereinafter, “840 Atlantic Ave.”)

16

02-CA-098009 McDonald’s and Bruce Colley, whose correct name is McConner Street

Holding, LLC (hereinafter, “McConner”)

02-CA-103384 McDonald’s and Bruce Colley, whose correct name is McConner Street

Holding, LLC (hereinafter, “McConner”)

02-CA-103726 McDonald’s and Bruce Colley, whose correct name is Mic-Eastchester,

LLC (hereinafter, “Mic-Eastchester”)

02-CA-103771

02-CA-112282

McDonald’s and Ninosca Paulino, whose correct name is 1531 Fulton

St., LLC (hereinafter, “1531 Fulton St.)

02-CA-106094 McDonald’s and Bruce Colley, whose correct name is Bruce C. Limited

Partnership (hereinafter, “Bruce C.”)

04-CA-125567

04-CA-129783

04-CA-133621

McDonald’s and Jo-Dan Madalisse, LTD, LLC (hereinafter, “Jo-Dan”)

13-CA-106490 McDonald’s and Karavites Restaurants 11102, LLC (hereinafter,

“Karavites 11102”)

13-CA-106491 McDonald’s and Karavites Restaurants 26, Inc. (hereinafter, “Karavites

26”)

13-CA-106493 McDonald’s and RMC Loop Enterprises, LLC (hereinafter, “RMC

Loop”)

13-CA-107668

13-CA-113837

McDonald’s and Wright Management, Inc. (hereinafter, “Wright”)

13-CA-115647

13-CA-119015

13-CA-123916

13-CA-124813

13-CA-131440

McDonald’s and V. Oviedo, Inc. (hereinafter, “V. Oveido”)

13-CA-117083

13-CA-118691

13-CA-121759

McDonald’s and McDonald’s Restaurants of Illinois, Inc. (hereinafter,

“McD Illinois”)

13-CA-118690 McDonald’s and Lofton & Lofton Management V, Inc. (hereinafter,

“Lofton”)

13-CA-123699

13-CA-129771

McDonald’s and K. Mark Enterprises, LLC. (hereinafter, “K. Mark”)

17

13-CA-124213 McDonald’s and Nornat, Inc. (hereinafter, “Nornat”)

13-CA-124812 McDonald’s and Karavites Restaurant 5895, Inc. (hereinafter, “Karavites

5895”)

13-CA-129709 McDonald’s and Taylor & Malone Management (hereinafter, “Taylor &

Malone”)

13-CA-131141 McDonald’s and RMC Enterprises, LLC (hereinafter, “RMC”)

13-CA-131143 McDonald’s and Karavites Restaurant 6676, LLC (hereinafter,

“Karavites 6676”)

13-CA-131145

20-CA-132103

McDonald’s and Topaz Management, Inc. (hereinafter, “Topaz”)

McDonald’s and MaZT, Inc. (hereinafter, “MaZT”)

20-CA-135947 McDonald’s and MaZT



25-CA-114819 McDonald’s and Faith Corporation of Indianapolis (hereinafter, “Faith”)

25-CA-114915 McDonald’s and Faith



31-CA-127447 McDonald’s and D. Bailey Management Co. (hereinafter, “Bailey”)

31-CA-130085 McDonald’s and Bailey





31-CA-129982 McDonald’s and 2Mangas Inc. (hereinafter, “2Mangas”)

31-CA-134237 McDonald’s and 2Mangas

31-CA-128483 McDonald’s and Sanders-Clark & Co. (hereinafter, “Sanders”)

31-CA-129027 McDonald’s and Sanders











18






19

APPENDIX B

Case No. Amendment Charging

Party or

Parties

Respondents Date Filed Date Served

02-CA-

093893

FFWC McDonald’s and Lewis

Foods

November

28, 2012

November

29, 2012

02-CA-

093895

FFWC McDonald’s and

AJD November

28, 2012

November

29, 2012

02-CA-

093895

First

Amended

FFWC McDonald’s and AJD December

4, 2012

December

12, 2012

02-CA-

093927

FFWC McDonald’s and John

C Food

November

29, 2012

November

30, 2012

02-CA-

094224

FFWC McDonald’s and 18884

Food December

4, 2012

December 5,

2012

02-CA-

094679

FFWC McDonald’s and 14 E.

47th St. December

11, 2012

December

12, 2012

02-CA-

097305


Atlantic Ave. January 30

2013

January 30

2013

02-CA-

097305

First

Amended


Atlantic Ave. February

20, 2013

February 21,

2013

02-CA-

097827

FFWC McDonald’s and AJD February 6,

2013

February 7,

2013

02-CA-

097827

First

Amended

FFWC McDonald’s and AJD February

20, 2013

February 20,

2013

02-CA-

097827

Second

Amended

FFWC/

SEIU

McDonald’s and AJD April 30,

2014

April 30,

2014

02-CA-

098009


McConner February 8,

2013

February 11,

2013

02-CA-

098009

First

Amended


McConner February

20, 2013

February 21,

2013

02-CA-

098009

Second

Amended


McConner June 14,

2013

June 19,

2013

02-CA-

098604

FFWC McDonald’s and 14 E.

47th St. February

15, 2013

February 20,

2013

20

02-CA-

098659

FFWC McDonald’s and John

C Food February

15, 2013

February 20,

2013

02-CA-

098662

FFWC McDonald’s and Lewis

Foods February

15, 2013

February 20,

2013

02-CA-

098676


Food February

15, 2013

February 20,

2013

02-CA-

103384


McConner April 23,

2013

April 23,

2013

02-CA-

103384

First

Amended


McConner June 25,

2013

July 1, 2013

02-CA-

103726

FFWC McDonald’s and Mic-

Eastchester April 25,

2013

April 26,

2013

02-CA-

103771


Fulton St. April 26,

2013

April 26,

2013

02-CA-

106094

FFWC McDonald’s and Bruce

C. May 29,

2013

May 30,

2013

02-CA-

106094

First

Amended


C. July 11,

2013

July 15, 2013

02-CA-

106094

Second

Amended


C. September

11, 2013

September

13, 2013

02-CA-

112282


Fulton St. August 29,

2013

August 30,

2013

04-CA-

125567

PWOC McDonald’s and Jo-

Dan March 31,

2014

April 1, 2014

04-CA-

125567

First

Amended


Dan May 8, 2014 May 8, 2014

04-CA-

125567

Second

Amended


Dan May 30,

2014

June 2, 2014

04-CA-

125567

Third

Amended


Dan Dec. 5,

2014

Dec. 8, 2014

04-CA-

129783


Dan June 2, 2014 June 3, 2014

04-CA-

133621


Dan July 29,

2014

July 30, 2014

21

13-CA-

106490

WOCC McDonald’s and

Karavites 11102

June 4, 2013 June 5, 2013

13-CA-

106490

First WOCC McDonald’s and

Karavites 11102

Sept 4, 2013 Sept 5, 2013

13-CA-

106490

Second WOCC McDonald’s and

Karavites 11102

Feb 4, 2014 Feb 5, 2014

13-CA-

106491


Karavites 26

June 4, 2013 June 5, 2013

13-CA-

106491


Karavites 26

Sept 4, 2013 Sept 5, 2013

13-CA-

106491


Karavites 26

Feb 4, 2014 Feb 5, 2014

13-CA-

106493

WOCC McDonald’s and RMC

Loop

June 4, 2013 June 5, 2013

13- CA-

106493

First WOCC McDonald’s and RMC

Loop

Sept 4, 2013 Sept 5, 2013

13- CA-

106493

Second WOCC McDonald’s and RMC

Loop

Feb 4, 2014 Feb 5, 2014

13-CA-

107668


Wright

June 20,

2013

June 21,

2013

13-CA-

107668


Wright

Sept 4, 2013 Sept 5, 2013

13-CA-

107668


Wright

Feb 4, 2014 Feb 5, 2014

13-CA-

113837


Wright

Sept 20,

2013

Sept 23,

2013

13-CA-

113837


Wright

Dec 12,

2014

Dec 17, 2014

22

13-CA-

115647

WOCC McDonald’s and V.

Oveido

Oct 25,

2013

Oct 25, 2013

13-CA-

115647

First WOCC McDonald’s and V.

Oveido

Dec 11,

2013

Dec 12, 2013

13-CA-

115647

Second WOCC McDonald’s and V.

Oveido

Jan 31, 2014 Jan 31, 2014

13-CA-

117083

WOCC McDonald’s and McD

Illinois

Nov 14,

2013

Nov 15, 2013

13-CA-

117083

First WOCC McDonald’s and McD

Illinois

Feb 4, 2014 Feb 5, 2014

13-CA-

117083

Second WOCC McDonald’s and McD

Illinois

Mar 31,

2104

Mar 31, 2014

13-CA-

118690


Lofton

Dec 10,

2013

Dec 11, 2013

13-CA-

118691


Illinois

Dec 10,

2013

Dec 11, 2013

13-CA-

119015


Oveido

Dec 13,

2013

Dec 17, 2013

13-CA-

119015


Oveido

Jan 31, 2014 Feb 3, 2014

13-CA-

121759


Illinois

Feb 2, 2014 Feb 4, 2014

13-CA-

121759

First WOCC McDonald’s and McD

Illinois

Mar 31,

2014

Mar 31, 2014

13-CA-

121759

Second WOCC McDonald’s and McD

Illinois

Apr 29,

2014

Apr 30 2014

13-CA-

123699

WOCC McDonald’s and K.

Mark

Mar 4, 2013 Mar 5, 2014

13-CA-

123699

First WOCC McDonald’s and K.

Mark

May 19,

2013

May 19,

2014

23

13-CA-

123916


Oveido

Mar 6, 2014 Mar 7, 2014

13-CA-

123916


Oveido

May 29,

2014

May 30,

2014

13-CA-

124213


Nornat

Mar 11,

2014

Mar 11, 2014

13-CA-

124213


Nornat

Apr 28,

2014

Apr 28 2014

13-CA-

124213


Nornat

Jun 4, 2014 Jun 4, 2014

13-CA-

124812

WOCC

McDonald’s and

Karavites 5895

Mar 19,

2014

Mar 20, 2014

13-CA-

124812


Karavites 5895

Jun 3, 2014 Jun 4, 2014

13-CA-

124813


Oveido

Mar 19,

2014

Mar 20, 2014

13-CA-

124813


Oveido

Jun 3, 2014 Jun 3, 2014

13-CA-

129709


Taylor

May 30,

2014

Jun 2, 2014

13-CA-

129709


Taylor

Jun 6, 2014 Jun 9, 2014

13-CA-

129709


Taylor

July 18,

2014

July 21, 2014

13-CA-

129709

Third WOCC McDonald’s and

Taylor

Oct 30 2014 Oct 30, 2014

13-CA-

129771

WOCC McDonald’s and K.

Mark

May 30,

2014

June 2, 2014

13-CA-

129771

First WOCC McDonald’s and K.

Mark

Aug 29,

2014

Sept 2, 2014

13-CA-

131141

WOCC McDonald’s and RMC June 19,

2014

June 19,2014

13-CA- WOCC McDonald’s and June 19, June 20,

24

131143 Karavites 6676 2014 2014

13-CA-

131145

WOCC McDonald’s and Topaz June 19,

2014

June 20,

2014

13-CA-

131440


Oveido

Jun 24,

2014

Jun 25, 2014

20-CA-

132103

WWOC McDonald’s and MaZT July 1, 2014 July 3, 2014

20-CA-

132103

First WWOC McDonald’s and MaZT July 10,

2014

July 10, 2014

20-CA-

132103

Second WWOC McDonald’s and MaZT Sept. 23,

2014

Sept. 24,

2014

20-CA-

132103

Third WWOC McDonald’s and MaZT Dec. 8,

2014

Dec. 9, 2014

20-CA-

135947

WWOC McDonald’s and MaZT Sept. 3,

2014

Sept. 4, 2014

20-CA-

125947

First WWOC McDonald’s and MaZT Dec. 8,

2014

Dec. 10,

2014

20-CA-

135979


2014

Sept. 4, 2014

20-CA-

135979


2014

Dec. 9, 2014

20-CA-

137264


2014

Sept. 23,

2014

20-CA-

137264


2014

Dec. 9, 2014

25-CA-

114819

WOCC McDonald’s and Faith Oct. 4, 2013 Oct. 18, 2013

25-CA-

114915

WOCC McDonald’s and Faith Oct. 4, 2013 Oct. 18, 2013

25-CA-

130734

WOCC McDonald’s and Faith June 13,

2014

June 13,

2014

25-CA-

130746

WOCC McDonald’s and Faith June 13,

2014

June 13,

2014

25

31-CA-

127447

LAOC McDonald’s and Bailey April 25,

2014

April 28,

20144

31-CA-

127447

First LAOC McDonald’s and Bailey July 9, 2014 July 11, 2014

31-CA-

127447

Second LAOC McDonald’s and Bailey Aug. 19,

2014

Aug. 22,

2014

31-CA-

130085

LAOC McDonald’s and Bailey June 3, 2014 June 5, 2014

31-CA-

130090

LAOC McDonald’s and Bailey June 3, 2014 June 5, 2014

31-CA-

132489

LAOC McDonald’s and Bailey July 9, 2014 July 11, 2014

31-CA-

135529

LAOC McDonald’s and Bailey Aug. 25,

2014

Aug. 28,

2014

31-CA-

135590

LAOC McDonald’s and Bailey Aug. 25,

2014

Aug. 28,

2014

31-CA-

129982

LAOC McDonald’s and

2Mangas

June 2, 2014 June 4, 2014

31-CA-

129982

First LAOC McDonald’s and

2Mangas

July 25,

2014

July 28, 2014

31-CA-

134237


2Mangas

Aug. 6,

2014

Aug. 7, 2014

31-CA-

128483


Sanders

May 9, 2014 May 14,

2014

31-CA-

129027


Sanders

May 19,

2014

May 20,

2014

31-CA-

133117


Sanders

July 18,

2014

July 22, 2014

31-CA-

129024


Sanders

May 19,

2014

May 20,

2014

31-CA-

130239


Sanders

June 5, 2014 June 6, 2014

4 This charge, and all following Region 31 charges (i.e., charges associated with case numbers beginning with “31-

CA”), were served on the respective franchisee on the date indicated, and were served on McDonald’s on October

16, 2014, with the single exception of the Second Amended Charge in Case 31-CA-135729, which was filed on

December 22, 2014, and served on both Sanders and McDonald’s on December 23, 2014.

26

31-CA-

130239


Sanders

Aug. 8,

2014

Aug. 12,

2014

31-CA-

131697


Sanders

June 26,

2014

June 30,

2014

31-CA-

132913


Sanders

July 15,

2014

July 17, 2014

31-CA-

132915


Sanders

July 15,

2014

July 17, 2014

31-CA-

134473


Sanders

Aug. 8,

2014

Aug. 12,

2014

31-CA-

134474


Sanders

Aug. 8,

2014

Aug. 12,

2014

31-CA-

134478


Sanders

Aug. 8,

2014

Aug. 13,

2014

31-CA-

134479


Sanders

Aug. 8,

2014

Aug. 13,

2014

31-CA-

134480


Sanders

Aug. 8,

2014

Aug. 12,

2014

31-CA-

134480


Sanders

Oct. 8, 2014 Oct. 10, 2014

31-CA-

134514


Sanders

Aug. 8,

2014

Aug. 12,

2014

31-CA-

135729


Sanders

Aug. 28,

2014

Sept. 2, 2014

31-CA-

135729


Sanders

Oct. 8, 2014 Oct. 10, 2014

31-CA-

135729

Second LAOC McDonald’s and

Sanders

Dec. 22,

2014

Dec. 23,

2014

31-CA-

137102


Sanders

Sept. 18,

2014

Sept. 19,

2014

31-CA-

137150


Sanders

Sept. 18,

2014

Sept. 19,

2014