/

/ ..... _ ..
umw STATES OF
FOR DISTRICT OF COLUMBIA CIRCUIT
r
30 THE UNITED STATES COURT OF AP
'- _________ THE DISTRICT OF COLUMBIA CI
RECEIVED
--.;.
CLERK
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
MMcGill@gibsondunn.com
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. Govt 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 Commn,
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 Commn 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
Bloomingdales, 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
Presidents 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 Courts recent orders setting brief-
ing and argument on two mandamus petitions seeking to stop the agencys 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 Courts Noel Canning decision, the Board, through two of its Regional Di-
rectors, issued two unfair-labor-practice complaints against the Companiesone
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. 102.6have 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 monthsthe median case takes 248 days after
the close of a hearing
2
and likely then in this Court when review is sought of the
Boards 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-
plaintall 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 Boards authority to
bring them. That question indisputably presents a serious issueindeed, 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 Courts ruling in Noel Can-
ning, it was the Boards 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
Courts decision or shift its burden of proof onto private parties whom it has un-
lawfully compelled to litigate. The Boards eagerness to do so well illustrates how
far from the rule of law it has veered, and demonstrates the need to stop the
Boards 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 Cablevisions 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 Courts 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 Boards 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 Boards ongoing unlawful actions would impose, while causing no cog-
nizable injury to the Board. See Wash. Metro. Area Transit Commn 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. Govt 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). Respts Opp. to Pet. 15-16, In re SFTC, No.
13-1048 (D.C. Cir. Apr. 10. 2013) (SFTC Opp.). The Boards 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 Boards 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 Bloomingdales,
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 Presidents purported recess appoint-
ments the next day were illegal. See 705 F.3d at 499-514.
The Boards 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 ALJhimself 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 Courts jurisdiction writ is plainly appro-
priate to end the Boards defiance of the Courts decisions and confine the agency
to the congressionally prescribed limits on its authority. Pet. 20-30. The Boards
continued prosecution of the Bronx and Brooklyn Cases deviat[es] sharply from
both the letter and the spirit of this Courts prior mandate in Noel Canning
and Laurel Baye, City of Cleveland v. Fed. Power Commn, 561 F.2d 344, 346


5
As explained in the petition, the Boards 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 Boards 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 Boards claim that it may disregard this Courts 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 Courts 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 Boards final decision, as a practi-
cal matter it would disable the Court from preventing the severe immediate conse-
quences of the Boards 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 Boards unlawful
actions. Suspending the Boards 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 reliefvia mandamus or otherwiseas 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
Courts 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 Courts 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 Courts intervention to enjoin.
A stay of litigation therefore is necessary to maintain the status quo . . . pending
review of [the] agencys 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 Boards 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 Boards 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 Boards argument distorts Myerss 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 Boards 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 agencys

[Footnote continued from previous page]
1972)); Respts 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 Myerss 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 Boards unlawful
proceedings are allowed to continue.
B. Staying the Boards proceedings also is vital to safeguarding the public
interest. [I]t is always in the public interest to prevent the violation of a partys
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 publicnot the Boards putative
officers or agents personallywho foots the bill for the Boards 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 publics burden is essentially doubled: The
Boards agents will attempt to amass their own evidence substantiating the com-
plaints 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 ALJs ruling). See id. 101.12. And unless all sides are happy with the
Boards 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 elses money.
But the public whose hard-earned income is wasted would justifiably feel ill-used.
C. A stay of the Boards 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 Courts 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 Boards burden to seek interim relief and demonstrate that injury.
The Board, however, did not do so, and this Courts 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 Courts 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 Presidents recess appointments remains in litigationthat is,
because the Board is still appealingand because other courts have arrived at dif-
ferent answers, SFTC Opp. 8-10, 20-21; see also Bloomingdales, 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
Boards illegal actions. This usurpation of power is further reason why the agen-
cys ongoing self-aggrandizement must be stopped. Left unchecked, the agencys
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

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
MMcGill@gibsondunn.com
Counsel for Petitioners CSC Holdings, LLC and
Cablevision Systems New York City Corp.
21

A1
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 judges 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-

A4
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.



A7
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 Clerks
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. OMelveney
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.