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

PETITIONERS' EMERGENCY MOTION TO STAY AGENCY ACTION

Doreen S. Davis JONES DAY 222 East 41 st Street New York, N.Y. 10017 (212) 326-3833

Jerome B. Kauff KAUFF, MCGUIRE & MARGOLIS LLP 950 Third Avenue 14th Floor New York, N.Y. 10022 (212) 644-1010

Matthew D. McGill Counsel of Record

Eugene Scalia GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Ave., N.W. Washington, D.C. 20036 (202) 955-8500 [email protected]

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

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................... 1

BACKGROUND ....................................................................................................... 5

ARGUMENT ............................................................................................................. 7

I. THE COURT IS LIKELY TO GRANT MANDAMUS RELIEF. ................................... 8

II. STAYING THE BRONX AND BROOKLYN CASES WOULD PROMOTE THE

PUBLIC INTEREST AND PREVENT IRREPARABLE HARM TO THE

COMPANIES AND OTHERS. .............................................................................. 11

CONCLUSION ........................................................................................................ 20 ADDENDUM: STATUTES AND REGULATIONS ........................................... A1 CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) ................................................................................ 17

Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724 (D.C. Cir. 2012) ............................................................................... 8

Bond v. United States, 131 S. Ct. 2355 (2011) ......................................................................................... 13

Cities of Anaheim & Riverside v. FERC, 692 F.2d 773 (D.C. Cir. 1982) ............................................................................. 14

* City of Cleveland v. Fed. Power Comm’n, 561 F.2d 344 (D.C. Cir. 1977) ............................................................................. 11

Conkright v. Frommert, 129 S. Ct. 1861 (2009) (Ginsburg, J., in chambers) ............................................. 19

FTC v. Dean Foods, 384 U.S. 597 (1966) ............................................................................................. 13

FTC v. Standard Oil Co., 449 U.S. 232 (1980) ............................................................................................. 15

FTC v. Weyerhaeuser Co., 665 F.2d 1072 (D.C. Cir. 1981) ........................................................................... 13

* Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) .............................................................. 2, 9, 10, 16

Maas v. United States, 371 F.2d 348 (D.C. Cir. 1966) ............................................................................. 13

_______________

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

iii

Maness v. Meyers, 419 U.S. 449 (1975) ............................................................................................. 19

MCI Telecomms. Corp. v. FCC, 580 F.2d 590 (D.C. Cir. 1978) ............................................................................. 11

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ................................................................................ 16

Mills v. Dist. of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ........................................................................... 13

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938) ........................................................................................ 14, 15

Nara v. Frank, 494 F.3d 1132 (3d Cir. 2007) ............................................................................... 19

* New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010) ........................................................................................... 9

* NLRB v. New Vista Nursing & Rehab., __ F.3d __, 2013 WL 2099742 (3d Cir. May 16, 2013) ........................................ 2

* Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) ............................................ 1, 9, 10, 13, 16, 17, 18

Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (1974) .......................................................................................... 14, 16

Sears, Roebuck & Co. v. NLRB, 473 F.2d 91 (D.C. Cir. 1972) ............................................................................... 15

Select Milk Producers, Inc. v. Johanns, 400 F.3d 939 (D.C. Cir. 2005) ............................................................................. 13

Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) ............................................................................... 7

Statutes

29 U.S.C. § 153 ................................................................................................... 9, 10

iv

29 U.S.C. § 158 .......................................................................................................... 6

* 29 U.S.C. § 160 ........................................................................................ 6, 7, 8, 17

Regulations And Rules

29 C.F.R. § 101.12 ................................................................................................... 17

* 29 C.F.R. § 102.15 .................................................................................................. 9

* 29 C.F.R. § 102.6 ....................................................................................... 3, 10, 17

Fed. R. App. P. 41 .................................................................................................... 18

Sup. Ct. R. 23 ........................................................................................................... 18

Other Authorities

Bloomingdale’s, Inc., 359 NLRB No. 113, 2013 WL 1901335 (2013) ............. 9, 20

Ctr. for Soc. Change, Inc., 358 NLRB No. 24, 2012 WL 1064641 (2012) .................................................... 16

NLRB, Board Decisions, http://www.nlrb.gov/cases-decisions/board-decisions ......................................... 20

NLRB, Seventy-Fourth Annual Report of the National Labor Relations Board for the Fiscal Year Ended September 30, 2009 (2010), http://www.nlrb.gov/sites/default/files/documents/119/nlrb2009.pdf (all Internet materials last visited May 29, 2010). ..................................................................... 3

NLRB, Unpublished Board Decisions, http://www.nlrb.gov/cases-decisions/unpublished-board-decisions .................... 20

Petitioners CSC Holdings, LLC (“CSC”) and Cablevision Systems New

York City Corp. (“Cablevision”) (collectively, the “Companies”) today filed a peti-

tion for a writ of mandamus or prohibition directing the National Labor Relations

Board to cease its prosecution of five unfair-labor-practice cases that the Board un-

lawfully initiated and any related litigation the Board may commence stemming

from those cases. Through this emergency motion, the Companies respectfully re-

quest that this Court stay the Board proceedings pending its resolution of the Com-

panies’ petition. The Companies respectfully request a ruling on this emergency

motion on or before June 28, 2013, or as soon thereafter as practicable.1

INTRODUCTION

The National Labor Relations Board has been operating unlawfully for well

over a year. As this Court held more than four months ago, since at least January

3, 2012, the Board has “lacked authority to act for want of a quorum, as three

members of the five-member Board were never validly appointed” because the

President’s purported recess appointments of them were unconstitutional. Noel

Canning v. NLRB, 705 F.3d 490, 493 (D.C. Cir. 2013), petition for cert. filed, No.

12-1281 (Apr. 25, 2013). Indeed, as the Third Circuit recently held, the Board has

been legally unable to act since August 2011. See NLRB v. New Vista Nursing &

1 Expedited consideration is necessary because the Board is threatening to impose immediate and irreversible harm. See infra Part II. The Companies notified coun-sel for the Board of this filing by telephone on May 30.

2

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

because the Board cannot exercise power under the National Labor Relations Act,

29 U.S.C. § 151 et seq., its agents cannot do so on its behalf. See Laurel Baye

Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472-76 (D.C. Cir. 2009),

cert. denied, 130 S. Ct. 3498 (2010).

Notwithstanding these decisions, and this Court’s recent orders setting brief-

ing and argument on two mandamus petitions seeking to stop the agency’s unlaw-

ful proceedings (In re Geary, No. 13-1029 (D.C. Cir. May 7, 2013); In re SFTC,

LLC, No. 13-1048 (D.C. Cir. May 7, 2013)), the Board is carrying on as if Noel

Canning and New Vista never had been decided. In so doing, the agency not only

is flouting the federal courts’ authority, but also is causing immense and irrepara-

ble practical harm to the parties that it illegitimately hales before it to answer its

allegations.

This case is a paradigmatic example of that harm. In April 2013, months af-

ter this Court’s Noel Canning decision, the Board, through two of its Regional Di-

rectors, issued two unfair-labor-practice complaints against the Companies—one

from its office in the Bronx, Case Nos. 02-CA-085811, 02-CA-090823 (the “Bronx

Case”), and the other in Brooklyn, Case Nos. 29-CA-097013, 29-CA-097557, 29-

CA-100175 (the “Brooklyn Case”), which have since been consolidated, see Pet.

Add. 37 (“Consolidated Complaint”). Though neither the Board nor its agents—

3

including ALJs, themselves “agent[s] of the Board,” 29 C.F.R. § 102.6—have any

power to issue a decision on the merits of those complaints, or even to oversee the

litigation in the interim, the agency nevertheless has summoned the Companies to

appear at a hearing to defend themselves against the complaints’ allegations. And

once the hearing is complete, the Companies must continue litigating, first before

the Board itself, which could take months—the median case takes 248 days after

the close of a hearing2—and likely then in this Court when review is sought of the

Board’s decision. The Board, moreover, has announced its intention to seek an in-

junction to tie the Companies’ hands while it decides how to rule on its own com-

plaint—all in the absence of the statutorily required quorum of three members.

If the Bronx and Brooklyn Cases are allowed to proceed, the Companies and

the public interest will suffer severe and irreparable harm. Unless this Court pro-

vides immediate relief to preserve the status quo, the Companies will be hauled be-

fore a tribunal already held by this Court to be unlawfully constituted, trammeling

the Companies’ rights under both the National Labor Relations Act and the Consti-

tution. This is to say nothing of the immense costs of preparing for and conducting

litigation against the illegitimate Board.

2 NLRB, Seventy-Fourth Annual Report of the National Labor Relations Board for the Fiscal Year Ended September 30, 2009, at 152 (2010), http://www.nlrb.gov/sites/default/files/documents/119/nlrb2009.pdf (all Internet materials last visited May 29, 2013).

4

The public interest also would be severely harmed by allowing this litigation

to continue. The public has a powerful interest in ensuring that the separation of

powers is respected and that agencies obey the limits that Congress and the federal

courts have laid down. And the citizenry has a direct and concrete stake in pre-

venting tax dollars from being squandered on agency proceedings that are illegal

and will ultimately be adjudged nullities.

Litigation of the Bronx and Brooklyn Cases thus should be stayed at least

until this Court can adjudicate the threshold question of the Board’s authority to

bring them. That question indisputably presents a serious issue—indeed, the Court

already has requested briefing and argument on two similar petitions raising it.

And a stay is the only way for the Court to preserve its ability to relieve the Com-

panies and the public from the burdens of litigating the cases while it decides the

merits of the question.

If the Board wished to delay the effect of this Court’s ruling in Noel Can-

ning, it was the Board’s burden to seek a stay and prove that one was warranted.

But it did not do so. The Board should not be permitted now to disregard this

Court’s decision or shift its burden of proof onto private parties whom it has un-

lawfully compelled to litigate. The Board’s eagerness to do so well illustrates how

far from the rule of law it has veered, and demonstrates the need to stop the

Board’s abuse before it causes damage that this Court cannot undo.

5

BACKGROUND

1. As set forth in the Companies’ petition for writ of mandamus, see Pet. 4,

CSC provides telecommunications and media services to millions of customers in

the New York metropolitan area and the Western United States, employing over

17,000 employees. Cablevision is a subsidiary of CSC that manages operations in

Brooklyn and the Bronx. In February 2012, the Board certified the Communica-

tion Workers of America, AFL-CIO (the “Union”) as the exclusive bargaining rep-

resentative for 277 technician employees of Cablevision in Brooklyn.

In the following year, Cablevision engaged in extensive, good-faith negotia-

tions with the Union, with the hope of reaching a comprehensive initial collective-

bargaining agreement with respect to wages, hours, and other terms and conditions

of employment. As part of those negotiations, Cablevision has held over twenty-

five bargaining sessions with the Union, reached 43 tentative agreements, pro-

duced relevant documents, and spent seven days bargaining at the Federal Media-

tion and Conciliation Service in Washington, D.C. Despite these efforts, a com-

prehensive agreement has not yet been reached.

2. Notwithstanding Cablevision’s good-faith attempts to bargain, the Un-

ion recently filed unfair-labor-practice charges against Cablevision and CSC,

which were consolidated as the Bronx and Brooklyn Cases. In the Bronx Case, the

Union alleges that both Cablevision and CSC violated Sections 8(a)(1) and (3) of

6

the Act, 29 U.S.C. § 158(a)(1), (a)(3), by supposedly discouraging non-covered

employees in the Bronx and elsewhere from selecting the Union as their bargaining

representative.3 Similarly, in the Brooklyn Case, the Union alleged that Cablevi-

sion violated Sections 8(a)(1), (3) and (5) of the Act by engaging in “surface bar-

gaining,” among other things.

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

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

17, 2013. See Pet. Add. 1. The Regional Director for Region 29, James Paulsen,

did the same in the Brooklyn Case on April 29, 2013. See id. at 13.4 On May 24,

Paulsen issued an order further consolidating the cases. Id. at 37.

A joint hearing for both the Bronx and Brooklyn Cases has been scheduled

before an ALJ for July 8, 2013. See Pet. Add. 32. That hearing, if allowed to pro-

ceed, could last several weeks, only to be followed by an appeal to the illegitimate

Board and, eventually, this Court.

3. In addition to the unfair-labor-practice complaints, the Companies face

the prospect of defending against a claim for injunctive relief in federal court

brought under Section 10(j) of the Act. See Pet. Add. 29; 29 U.S.C. § 160(j). The-

3 The Bronx Case complaint names CSC as well as Cablevision because it alleges that the Companies constitute a “single employer” under the Act. Pet. Add. 2-3. 4 As explained below, Ms. Fernbach and Mr. Paulsen do not lawfully hold the po-sition of Regional Director. For simplicity and clarity, however, this motion refers to them as “Regional Directors” throughout.

7

se proceedings, if allowed to continue, would consume yet more of the Companies’

time and resources, as well as those of the federal judiciary. And, of course, they

could result in onerous preliminary relief against the Companies that, because there

is no legitimate Board to issue a final order of the Board necessary to terminate the

preliminary injunction, may persist indefinitely. See 29 U.S.C. § 160(j).

5. On May 22, 2013, the Companies sent a letter to the Acting General

Counsel of the NLRB, requesting that he “direct the two Regional Directors, their

staffs, and all other attorneys or other personnel under [his] supervision to suspend

prosecution of the Bronx and Brooklyn Cases and any related proceedings until

such time as the Board regains a lawful quorum of three validly appointed Mem-

bers as required by” the Act and this Court’s decision in Noel Canning. Pet. Add.

33. On May 28, 2013, the Acting General Counsel denied that request. Id. at 51.

ARGUMENT

This Court should stay the Board’s proceedings in the Bronx and Brooklyn

cases pending its review and disposition of the mandamus petition. The Compa-

nies are likely to prevail on their request for mandamus relief, and a stay would

avert severe and irreparable harm both to the Companies and the public interest

that the Board’s ongoing unlawful actions would impose, while causing no cog-

nizable injury to the Board. See Wash. Metro. Area Transit Comm’n v. Holiday

Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).

8

I. THE COURT IS LIKELY TO GRANT MANDAMUS RELIEF.

As set forth more fully in the petition, the Companies are likely to obtain

mandamus relief because they have no other means to procure the relief sought, the

agency clearly lacked authority to initiate (and cannot prosecute) the Brooklyn and

Bronx Cases or related litigation, and mandamus is appropriate to confine the

Board to the lawful exercise of its powers. See Belize Soc. Dev. Ltd. v. Gov’t of

Belize, 668 F.3d 724, 729-30 (D.C. Cir. 2012) (mandamus standard), cert. denied,

133 S. Ct. 274 (2012).

A. The Companies have no remedy other than mandamus to secure the re-

lief they desire: not being forced to litigate the merits of unfair-labor-practice pro-

ceedings that the agency had no authority to commence. Pet. 7-10. As the Board

itself has stressed, its decisions whether to issue complaints are not immediately

reviewable under 29 U.S.C. § 160(f). Resp’t’s Opp. to Pet. 15-16, In re SFTC, No.

13-1048 (D.C. Cir. Apr. 10. 2013) (“SFTC Opp.”). The Board’s claim that judicial

review of a final Board decision provides an adequate remedy (id.) is plainly incor-

rect: Forcing the Companies to litigate their challenge to the Board’s authority

(along with the underlying merits) before the agency itself and only then seek re-

view in this Court would not alleviate the Companies’ harm, but cement it, subject-

ing them to the very burdens that they seek to avoid. Pet. 8-10. Indeed, further lit-

igation of this issue before the agency would be pointless: The Board has made

9

clear that it will not even entertain the Companies’ arguments, see Bloomingdale’s,

Inc., 359 NLRB No. 113, 2013 WL 1901335, at *1 (2013), and this Court has held

that parties need not present the issue to the agency, Noel Canning, 705 F.3d at

496-98.

B. The Companies also have a clear and indisputable right to mandamus re-

lief. Pet. 10-20. Controlling precedent establishes that the Board and its agents

had no authority to issue the Bronx or Brooklyn complaints, and that they are pow-

erless to prosecute the complaints now or to seek an injunction under Section 10(j).

When the Board lacks a three-member quorum, the Board itself cannot act. See

New Process Steel, LP v. NLRB, 130 S. Ct. 2635, 2640, 2644-45 (2010). Nor may

its agents wield authority that the Board has delegated to them. See Laurel Baye,

564 F.3d at 472-76. And the Board has lacked a quorum since at least January 3,

2012, because, as Noel Canning held, the President’s purported recess appoint-

ments the next day were illegal. See 705 F.3d at 499-514.

The Board’s lack of a quorum renders the Bronx and Brooklyn complaints,

issued in April 2013, legal nullities, and bars the Board from continuing the litiga-

tion. Issuance of unfair-labor-practice complaints is an exercise of Board authori-

ty, see 29 U.S.C. § 153(b), which the Board has delegated to its Regional Direc-

tors, see 29 C.F.R. § 102.15. Because neither the Board nor its agents may act, the

litigation is unlawful. Moreover, because the two Regional Directors who issued

10

the Bronx and Brooklyn complaints were invalidly appointed (by a Board that

lacked a quorum), they could not commence and cannot continue the proceedings

in any event. Pet. 15-16.5

In any event, regardless whether the complaints were validly issued, the

agency cannot lawfully adjudicate the complaints, or indeed oversee the litigation.

Any final order issued by the Board would be “void ab initio.” Noel Canning, 705

F.3d at 493. So too would a recommended decision or even an interlocutory ruling

by the ALJ—himself “the agent of the Board,” 29 C.F.R. § 102.6, who cannot act

if his principal (the Board) is powerless, see Laurel Baye, 564 F.3d at 472-76.6

C. Issuance of a writ in aid of the Court’s jurisdiction writ is plainly appro-

priate to end the Board’s defiance of the Court’s decisions and confine the agency

to the congressionally prescribed limits on its authority. Pet. 20-30. The Board’s

continued prosecution of the Bronx and Brooklyn Cases “deviat[es]” sharply from

both the “‘letter’” and the “‘spirit’” of this Court’s prior mandate in Noel Canning

and Laurel Baye, City of Cleveland v. Fed. Power Comm’n, 561 F.2d 344, 346

5 As explained in the petition, the Board’s claim that the General Counsel himself has authority under 29 U.S.C. § 153(d) to issue and prosecute complaints misreads the statute, and it also makes no difference here, where the complaints were issued and are being prosecuted by (invalidly appointed) Regional Directors. Pet. 16-18. 6 For the same reasons, neither the Board nor any of its agents may lawfully seek an interim injunction under Section 10(j). Id. at 19-20. The Board’s purported delegation to the General Counsel of authority to seek Section 10(j) injunctions likewise was unlawful and inoperative. Pet. 19-20.

11

(D.C. Cir. 1977) (citation omitted), and is “clearly inconsistent” with those rulings’

“basic themes,” MCI Telecomms. Corp. v. FCC, 580 F.2d 590, 597 (D.C. Cir.

1978). The Board’s claim that it may disregard this Court’s holdings while it con-

tinues to litigate the legality of the January 2012 recess appointments boils down to

the baseless claim that the agency itself can stay judicial decisions. Pet. 23-25.

A writ also is warranted to protect this Court’s prospective jurisdiction over

a final Board ruling. Pet. 25-27. While permitting the agency litigation to proceed

would not preclude the Court from voiding the Board’s final decision, as a practi-

cal matter it would disable the Court from preventing the severe immediate conse-

quences of the Board’s illegal actions and deprive aggrieved parties of repose. As

explained in the petition (id. at 27-30) and below, infra at 12-16, continued litiga-

tion of the Bronx and Brooklyn cases would subject the Companies to immediate

and irreparable injuries that even a final ruling from this Court could not remedy.

II. STAYING THE BRONX AND BROOKLYN CASES WOULD PROMOTE THE

PUBLIC INTEREST AND PREVENT IRREPARABLE HARM TO THE

COMPANIES AND OTHERS.

The balance of equities also strongly favors a stay of the Board’s unlawful

actions. Suspending the Board’s prosecution of the Bronx and Brooklyn Cases and

its efforts to pursue additional litigation seeking onerous injunctive relief is essen-

tial to protect the Companies from suffering severe injuries that no after-the-fact

ruling can undo. Indeed, without a stay this Court would be powerless to issue

12

meaningful relief—via mandamus or otherwise—as the Companies already will

have been forced to litigate the very cases they have asked this Court to enjoin.

Allowing the Board to continue, in defiance of Noel Canning, to conduct costly lit-

igation that it has no authority to bring in the first place also would deeply under-

mine the public interest, wasting scarce taxpayer resources on litigation that ulti-

mately will be adjudged a nullity, and needlessly but irreversibly eroding public

confidence in the agency and the government in general. A stay pending this

Court’s prompt review of the petition also would cause no cognizable harm to ei-

ther the Board or other parties; to the contrary, they too would be spared the need-

less burdens of preparing for an illegal trial and litigating an appeal to the Board on

which it cannot rule. Tellingly, the Board did not even ask for a stay from this

Court or the Supreme Court in Noel Canning; its decision now to carry on with its

enforcement activities in spite of that ruling is patently inequitable.

A. There is no question that absent a stay the Companies will suffer severe

and irreparable injuries as they are forced to defend against cases the Board cannot

lawfully initiate or prosecute. Because the crux of the Companies’ argument is

that the Board cannot lawfully prosecute the pending unfair-labor-practice charges

(or any related 10(j) proceedings), a stay is essential to preserve the Court’s ability

to grant the Companies meaningful relief. A writ of mandamus in favor of the

Companies would be largely meaningless if the Companies were forced to litigate

13

the very same ultra vires cases they have sought this Court’s intervention to enjoin.

A stay of litigation therefore is necessary to “maintain the status quo . . . pending

review of [the] agency’s action.”7

Furthermore, the appointments of the Board Members on which their

claimed authority to conduct this litigation is predicated have been held unconstitu-

tional by this Court. See Noel Canning, 705 F.3d at 499-514. “It has long been es-

tablished that the loss of constitutional freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Mills v. Dist. of Columbia, 571

F.3d 1304, 1312 (D.C. Cir. 2009) (internal quotation marks omitted). And as the

Supreme Court has long held and recently reiterated, government actions that ab-

rogate the separation of powers infringe the rights of individuals adversely affected

by those actions. Simply put, “[t]he structural principles secured by the separation

of powers protect the individual,” and thus “[i]f the constitutional structure of our

Government that protects individual liberty is compromised, individuals who suf-

fer otherwise justiciable injury may object.” Bond v. United States, 131 S. Ct.

2355, 2365 (2011).

7 FTC v. Dean Foods, 384 U.S. 597, 604 (1966) (internal quotation marks omit-ted); see also Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005); FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1090 (D.C. Cir. 1981); Maas v. United States, 371 F.2d 348, 352 (D.C. Cir. 1966).

14

If the scheduled hearing in the Bronx and Brooklyn Cases goes forward, the

Companies also will be forced to expend massive resources preparing and conduct-

ing their defense. Documentary and other evidence must be gathered and re-

viewed. Potential witnesses must be identified and interviewed. And the Compa-

nies’ counsel must prepare for a trial that could span weeks, reviewing the exten-

sive record, preparing legal and evidentiary arguments for issues that may arise,

and potentially engaging in time-consuming motions practice. Once these im-

mense costs are expended, they cannot be recouped. To make matters worse, once

the proceedings in the Bronx and Brooklyn Cases are ruled illegal, the Companies

may have to bear all of these burdens again if required to litigate the cases a se-

cond time.

The Board’s response, advanced in other cases, that the burdens that admin-

istrative litigation foists on private parties do not constitute irreparable harm mis-

conceives both the authorities on which they rely and the circumstances this case

and others present. The Board relies on Myers v. Bethlehem Shipbuilding Corp.,

303 U.S. 41 (1938), and later cases that rely upon it, to argue that litigation burdens

can never constitute irreparable harm.8 The Board’s own cases belie that counter-

8 See SFTC Opp. 18 & n.14 (citing Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974), Cities of Anaheim & Riverside v. FERC, 692 F.2d 773, 779 (D.C. Cir. 1982), and Sears, Roebuck & Co. v. NLRB, 473 F.2d 91, 93 (D.C. Cir.

[Footnote continued on next page]

15

intuitive claim.9 Moreover, the Board’s argument distorts Myers’s meaning by

ripping its relevant statements from their context. Myers did not question the

commonsense fact that litigation before an agency imposes serious burdens on af-

fected parties that cannot be recouped. It held only that the existence of such bur-

dens cannot excuse exhaustion of administrative remedies simply because the chal-

lenging party “assert[s] that the charge on which the complaint rests is groundless,”

because “no way has been discovered of relieving a defendant from the necessity

of a trial to establish the fact.” 303 U.S. at 51-52. Simply put, a party named in a

Board complaint cannot avoid litigation by claiming that its allegations are base-

less, because litigation is needed to determine that very issue.

The same is not true, however, where the challenge is to the Board’s authori-

ty to assert such claims at all. Myers itself had no occasion to address that issue,

see 303 U.S. at 48 (noting that the challenging party did not challenge the legality

of the procedures themselves), and the Supreme Court later expressly declined to

address whether the Myers principle applies where a party claims that the agency’s

[Footnote continued from previous page] 1972)); Resp’t’s Opp. to Pet. 10 n.4, In re Geary, No. 13-1029 (D.C. Cir. Mar. 25, 2013) (citing Bannercraft and FTC v. Standard Oil Co., 449 U.S. 232, 244 (1980)). 9 Sears, Roebuck, 473 F.2d at 93 n.3 (recognizing that “judicial intervention may be justifiable” based on burdens of agency litigation if “the expense of submitting to administrative proceedings is extraordinary”).

16

proceedings exceed its authority.10 And expanding Myers’s conclusion to such

cases makes no sense. There is no need for a trial or any other agency proceedings

to determine the threshold question whether the Board can commence and maintain

litigation in the first place. No evidentiary record is needed to make that determi-

nation. Nor does the agency have any relevant expertise to bring to bear; indeed,

before Noel Canning the Board refused even to pass on the issue when it was pre-

sented.11 Here, in fact, there is no need for any litigation, since this Court has al-

ready decided the dispositive issues: It has explicitly held that neither the Board

nor its agents may exercise Board authority when the Board lacks a quorum, see

Laurel Baye, 564 F.3d at 472-76, and that a quorum currently does not exist, see

Noel Canning, 705 F.3d at 499-514. There is no basis, in short, to ignore the real-

world, irreparable harms that the Companies would suffer if the Board’s unlawful

proceedings are allowed to continue.

B. Staying the Board’s proceedings also is vital to safeguarding the public

interest. “[I]t is always in the public interest to prevent the violation of a party’s

constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)

(internal quotation marks omitted); accord Bays v. City of Fairborn, 668 F.3d 814,

10 See Bannercraft, 415 U.S. at 24 n.22 (“In this litigation there is no allegation or evidence that the Board was negotiating in bad faith or acting ultra vires. We there-fore are not now concerned with the situation where allegations or evidence of that kind is present.”). 11 Ctr. for Soc. Change, Inc., 358 NLRB No. 24, 2012 WL 1064641, at *1 (2012).

17

825 (6th Cir. 2012). And as this Court has made clear, allowing Board Members

holding office by dint of invalid recess appointments to wield authority that Con-

gress conferred on a federal agency “would wholly defeat the purpose of the Fram-

ers in the careful separation of powers structure reflected in the Appointments

Clause.” Noel Canning, 705 F.3d at 503.

As a practical matter, moreover, it is the public—not the Board’s putative

officers or agents personally—who foots the bill for the Board’s proceedings,

whether lawfully initiated or (as here) not. Pressing on with the Bronx and Brook-

lyn Cases and potential Section 10(j) proceedings, as the Board appears bent on

doing, will cost taxpayers a significant sum. Indeed, since agency personnel serve

as both prosecutor and adjudicator, the public’s burden is essentially doubled: The

Board’s agents will attempt to amass their own evidence substantiating the com-

plaint’s specious allegations, which they will present to an ALJ (also an “agent of

the Board,” 29 C.F.R. § 102.6), who must sift through the submissions and draft a

recommended decision. Agency officials and employees then almost certainly will

both litigate and adjudicate an appeal to the Board (whether defending or challeng-

ing the ALJ’s ruling). See id. § 101.12. And unless all sides are happy with the

Board’s ruling, the Board will incur the cost of another costly appeal to this Court,

see 29 U.S.C. § 160(f), where taxpayers (who also fund the federal courts) will pay

double again.

18

The prospect of squandering vast resources on litigation that cannot yield

even a valid agency ruling would deter any rational litigant paying its own way.

The Board is not bothered, of course, since it is spending someone else’s money.

But the public whose hard-earned income is wasted would justifiably feel ill-used.

C. A stay of the Board’s illegal proceedings not only would avoid these

pointless yet permanent injuries, but would do so without any cognizable injury to

the Board or others. The Board, as noted, will save time and resources if the ac-

tions are suspended. The Union too will face no relevant injury; it likewise will be

spared the expense of proceedings that cannot result in a binding adjudication.

A stay would mean, to be sure, that the Board cannot complete its considera-

tion of the Bronx and Brooklyn Cases and issue a final order, and the Union will

not receive a ruling on its charges. But neither can fairly complain that a stay

would improperly prevent a final Board decision: This Court already has held that

the agency lacks power to issue decisions, and any rulings it does render are

“void.” Noel Canning, 705 F.3d at 514.

The Board, in short, cannot point to any cognizable injury that it will suffer

if it is not allowed to proceed unlawfully prosecuting and deciding this and other

cases. And even if it could, the proper recourse would have been for the Board to

seek a stay of this Court’s ruling in Noel Canning, either from this Court, see Fed.

R. App. P. 41(d), or the Supreme Court, see Sup. Ct. R. 23. It is well-settled that

19

“all orders and judgments of courts must be complied with promptly,” and that

“[i]f a person to whom a court directs an order believes that order is incorrect the

remedy is to appeal, but, absent a stay, he must comply promptly with the order

pending appeal.” Maness v. Meyers, 419 U.S. 449, 458 (1975). If complying with

Noel Canning pending further review would subject the Board to irreparable harm,

it was the Board’s burden to seek interim relief and demonstrate that injury.

The Board, however, did not do so, and this Court’s mandate has been in ef-

fect for more than two months. It did not even ask this Court or the Supreme Court

to suspend the effect of Noel Canning pending the disposition of its petition for

certiorari, let alone establish that the requirements for such extraordinary relief—

including a “likelihood” that giving immediate effect to this Court’s decision

would cause “irreparable harm” to the agency. Conkright v. Frommert, 129 S. Ct.

1861, 1861-62 (2009) (Ginsburg, J., in chambers) (internal quotation marks omit-

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

claimed nevertheless that it may disregard the decision “[b]ecause the question of

the validity of the President’s recess appointments remains in litigation”—that is,

because the Board is still appealing—and because other courts have arrived at dif-

ferent answers, SFTC Opp. 8-10, 20-21; see also Bloomingdale’s, 2013 WL

20

1901335, at *1. And on that basis, the Board has rendered well over a hundred

new decisions just in the two months since the mandate.12

In doing so, the Board effectively has arrogated a stay of Noel Canning to it-

self, claiming power that belongs exclusively to federal courts. And it has not only

attempted to evade its own burden of proof of irreparable harm and other factors,

but perversely and improperly sought to shift that burden onto the private parties

whom it is compelling to litigate, and who must seek judicial relief from the

Board’s illegal actions. This usurpation of power is further reason why the agen-

cy’s ongoing self-aggrandizement must be stopped. Left unchecked, the agency’s

power-grab will severely undermine the rule of law and public trust in government

at large.

CONCLUSION

This motion for a stay should be granted.

12 See NLRB, Board Decisions, http://www.nlrb.gov/cases-decisions/board-decisions; NLRB, Unpublished Board Decisions, http://www.nlrb.gov/cases-decisions/unpublished-board-decisions.

Dated: May 30,2013

Doreen S. Davis JONES DAY

222 East 41 st Street New York, N.Y. 10017 (212) 326-3833

Jerome B. Kauff KAUFF, MCGUIRE & MARGOLIS LLP 950 Third Avenue 14th Floor New York, N.Y. 10022 (212) 644-1010

R121iEU~JJ Matthew D. McGill '

Counsel of Record Eugene Scalia GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Ave., N.W. Washington, D.C. 20036 Telephone: (202) 955-8500 [email protected]

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

21

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ADDENDUM: STATUTES AND REGULATIONS

U.S. Const. art. II, § 2, cl. 2 He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nomi-nate, and by and with the Advice and Consent of the Senate, shall appoint Ambas-sadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the Presi-dent alone, in the Courts of Law, or in the Heads of Departments. U.S. Const. art. II, § 2, cl. 3 The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. 28 U.S.C. § 1651 (excerpt) (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

…

29 U.S.C. § 153 (excerpt)

…

(b) Delegation of powers to members and regional directors; review and stay of actions of regional directors; quorum; seal

The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. The Board is also authorized to dele-gate to its regional directors its powers under section 159 of this title to determine the unit appropriate for the purpose of collective bargaining, to investigate and provide for hearings, and determine whether a question of representation exists,

A2

and to direct an election or take a secret ballot under subsection (c) or (e) ofsection 159 of this title and certify the results thereof, except that upon the filing of a re-quest therefor with the Board by any interested person, the Board may review any action of a regional director delegated to him under this paragraph, but such a re-view shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director. A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursu-ant to the first sentence hereof. The Board shall have an official seal which shall be judicially noticed.

…

(d) General Counsel; appointment and tenure; powers and duties; vacancy

There shall be a General Counsel of the Board who shall be appointed by the Pres-ident, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attor-neys employed by the Board (other than administrative law judges and legal assis-tants to Board members) and over the officers and employees in the regional offic-es. He shall have final authority, on behalf of the Board, in respect of the investiga-tion of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law. In case of a vacancy in the office of the General Counsel the President is authorized to desig-nate the officer or employee who shall act as General Counsel during such vacan-cy, but no person or persons so designated shall so act

(1) for more than forty days when the Congress is in session unless a nomi-nation to fill such vacancy shall have been submitted to the Senate, or

(2) after the adjournment sine die of the session of the Senate in which such nomination was submitted.

29 U.S.C. § 154 (excerpt)

(a) Each member of the Board and the General Counsel of the Board shall be eligi-ble for reappointment, and shall not engage in any other business, vocation, or em-ployment. The Board shall appoint an executive secretary, and such attorneys, ex-aminers, and regional directors, and such other employees as it may from time to time find necessary for the proper performance of its duties. The Board may not employ any attorneys for the purpose of reviewing transcripts of hearings or pre-

A3

paring drafts of opinions except that any attorney employed for assignment as a le-gal assistant to any Board member may for such Board member review such tran-scripts and prepare such drafts. No administrative law judge’s report shall be re-viewed, either before or after its publication, by any person other than a member of the Board or his legal assistant, and no administrative law judge shall advise or consult with the Board with respect to exceptions taken to his findings, rulings, or recommendations. The Board may establish or utilize such regional, local, or other agencies, and utilize such voluntary and uncompensated services, as may from time to time be needed. Attorneys appointed under this section may, at the direc-tion of the Board, appear for and represent the Board in any case in court. Nothing in this subchapter shall be construed to authorize the Board to appoint individuals for the purpose of conciliation or mediation, or for economic analysis.

… 29 U.S.C. § 158 (excerpt) (a) Unfair labor practices by employer It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (2) to dominate or interfere with the formation or administration of any labor or-ganization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay; (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor or-ganization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in sec-

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tion 159 (a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor or-ganization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally ap-plicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the em-ployee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter; (5) to refuse to bargain collectively with the representatives of his employees, sub-ject to the provisions of section 159 (a) of this title.

… 29 U.S.C. § 160 (excerpt)

…

(b) Complaint and notice of hearing; answer; court rules of evidence inappli-cable

Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such per-son a complaint stating the charges in that respect, and containing a notice of hear-ing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice oc-curring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by rea-son of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge. Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion

A5

at any time prior to the issuance of an order based thereon. The person so com-plained of shall have the right to file an answer to the original or amended com-plaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. In the discretion of the member, agent, or agency con-ducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony. Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to section 2072 of title 28.

…

(e) Petition to court for enforcement of order; proceedings; review of judg-ment

The Board shall have power to petition any court of appeals of the United States, or if all the courts of appeals to which application may be made are in vacation, any district court of the United States, within any circuit or district, respectively, wherein the unfair labor practice in question occurred or wherein such person re-sides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings, as provided in section 2112 of title 28. Upon the filing of such peti-tion, the court shall cause notice thereof to be served upon such person, and there-upon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Board. No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The find-ings of the Board with respect to questions of fact if supported by substantial evi-dence on the record considered as a whole shall be conclusive. If either party shall apply to the court for leave to adduce additional evidence and shall show to the sat-isfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evi-dence to be taken before the Board, its member, agent, or agency, and to be made a part of the record. The Board may modify its findings as to the facts, or make new findings by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact if sup-ported by substantial evidence on the record considered as a whole shall be conclu-

A6

sive, and shall file its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the appropriate United States court of ap-peals if application was made to the district court as hereinabove provided, and by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28.

(f) Review of final order of Board on petition to court

Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was al-leged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Board, and thereupon the aggrieved party shall file in the court the rec-ord in the proceeding, certified by the Board, as provided in section 2112 of title 28. Upon the filing of such petition, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e) of this section, and shall have the same jurisdiction to grant to the Board such temporary relief or re-straining order as it deems just and proper, and in like manner to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board; the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive.

…

(j) Injunctions

The Board shall have power, upon issuance of a complaint as provided in subsec-tion (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or re-straining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

…

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29 C.F.R. § 101.12 – Board decision and order.

(a) If any party files exceptions to the administrative law judge's decision, the Board, with the assistance of the staff counsel to each Board Member who function in much the same manner as law clerks do for judges, reviews the entire record, in-cluding the administrative law judge's decision and recommendations, the excep-tions thereto, the complete transcript of evidence, and the exhibits, briefs, and ar-guments. The Board does not consult with members of the administrative law judge's staff of the division of judges or with any agent of the General Counsel in its deliberations. It then issues its decision and order in which it may adopt, modi-fy, or reject the findings and recommendations of the administrative law judge. The decision and order contains detailed findings of fact, conclusions of law, and basic reasons for decision on all material issues raised, and an order either dismiss-ing the complaint in whole or in part or requiring the respondent to cease and desist from its unlawful practices and to take appropriate affirmative action.

(b) If no exceptions are filed, the administrative law judge's decision and rec-ommended order automatically become the decision and order of the Board pursu-ant to section 10(c) of the Act. All objections and exceptions, whether or not pre-viously made during or after the hearing, are deemed waived for all purposes.

29 C.F.R. § 102.6 – Administrative law judge; hearing officer.

The term administrative law judge as used herein shall mean the agent of the Board conducting the hearing in an unfair labor practice or Telegraph Merger Act pro-ceeding. The term hearing officer as used herein shall mean the agent of the Board conducting the hearing in a proceeding under section 9 or in a dispute proceeding under section 10(k) of the Act.

29 C.F.R. § 102.15 – When and by whom issued; contents; service.

After a charge has been filed, if it appears to the regional director that formal pro-ceedings in respect thereto should be instituted, he shall issue and cause to be served on all other parties a formal complaint in the name of the Board stating the unfair labor practices and containing a notice of hearing before an administrative law judge at a place therein fixed and at a time not less than 14 days after the ser-vice of the complaint. The complaint shall contain:

(a) A clear and concise statement of the facts upon which assertion of jurisdic-tion by the Board is predicated, and

A8

(b) A clear and concise description of the acts which are claimed to constitute unfair labor practices, where known, the approximate dates and places of such acts and the names of respondent's agents or other representatives by whom committed.

29 C.F.R. § 102.19 – Appeal to the general counsel from refusal to issue or re-issue.

(a) If, after the charge has been filed, the Regional Director declines to issue a complaint or, having withdrawn a complaint pursuant to § 102.18, refuses to reis-sue it, he shall so advise the parties in writing, accompanied by a simple statement of the procedural or other grounds for his action. The person making the charge may obtain a review of such action by filing the “Appeal Form” with the General Counsel in Washington, DC, and filing a copy of the “Appeal Form” with the Re-gional Director, within 14 days from the service of the notice of such refusal to is-sue or reissue by the Regional Director, except as a shorter period is provided by § 102.81. If an appeal is taken the person doing so should notify all other parties of his action, but any failure to give such notice shall not affect the validity of the ap-peal. The person may also file a statement setting forth the facts and reasons upon which the appeal is based. If such a statement is timely filed, the separate “Appeal Form” need not be served. A request for extension of time to file an appeal shall be in writing and be received by the office of General Counsel, and a copy of such re-quest filed with the Regional Director, prior to the expiration of the filing period. Copies of the acknowledgement of the filing of an appeal and of any ruling on a request for an extension of time for filing the appeal shall be served on all parties. Consideration of an appeal untimely filed is within the discretion of the General Counsel upon good cause shown.

(b) Oral presentation in Washington, DC, of the appeal issues may be permitted a party on written request made within 4 days after service of acknowledgment of the filing of an appeal. In the event such request is granted, the other parties shall be notified and afforded, without additional request, a like opportunity at another appropriate time.

(c) The general counsel may sustain the regional director's refusal to issue or reis-sue a complaint, stating the grounds of his affirmance, or may direct the regional director to take further action; the general counsel's decision shall be served on all the parties. A motion for reconsideration of the decision must be filed within 14 days of service of the decision, except as hereinafter provided, and shall state with particularity the error requiring reconsideration. A motion for reconsideration based upon newly discovered evidence which has become available only since the

A9

decision on appeal shall be filed promptly on discovery of such evidence. Motions for reconsideration of a decision previously reconsidered will not be entertained, except in unusual situations where the moving party can establish that new evi-dence has been discovered which could not have been discovered by diligent in-quiry prior to the first reconsideration.

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of May, 2013, I caused the original and

four copies of the foregoing motion to be filed with the Clerk of Court for the

United States Court of Appeals for the D.C. Circuit by hand delivery to the Clerk’s

Office. Copies of the foregoing motion were served by hand-delivery this same

day on the following:

Lafe Solomon, Esq. Acting General Counsel National Labor Relations Board 1099 14th St., N.W. Washington, D.C. 20570-0001 Gary Shinners Executive Secretary National Labor Relations Board 1099 14th St., N.W. Washington, D.C. 20570-0001

Mary K. O’Melveney General Counsel Communications Workers of America, AFL-CIO, CLC 501 3rd Street, N.W. Suite 800 Washington, D.C. 20001-2797

Additionally, two copies of the foregoing motion also were served by overnight

delivery on each of the following:

Karen P. Fernbach c/o National Labor Relations Board Region 2 26 Federal Plaza Room 3614 New York, NY 10278 Daniel Clifton Lewis, Clifton & Nikolaidis, P.C. 350 7th Ave. Suite 1800 New York, NY 10001-5013

James Paulsen c/o National Labor Relations Board Region 29 Two Metro Tech Center Suite 5100, Floor 5 Brooklyn, NY 11201-3838 Timothy Dubnau Communications Workers of America Weissman & Mintz LLC 9602-D Martin Luther King, Jr. Hwy. Lanham, MD 20706

Gabrielle Semel District Counsel Communications Workers of America District 1 Legal Department 350 7th Ave. Floor 18 New York, NY 10001-5013

May 30, 2013

Counsel for Petitioners esc Holdings, LLC and Cablevision Systems New York City Corp.