Dish Network Service Corp.

DISH NETWORK SERVICE CORP. 345 NLRB No. 83 1071 Dish Network Service Corp. and Local 1108, Com- munications Workers of America, AFL–CIO. Cases 29–CA–26129, 29–CA–26130, and 29–CA– 26252 September 30, 2005 ORDER REMANDING PROCEEDINGS BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On February 25, 2005, Administrative Law Judge Howard Edelman issued a decision in this case.1 In its exceptions, the Respondent asserts that the judge failed to issue a reasoned decision, as required under Section 102.35(j) of the Board’s Rules and Regulations. Specifi- cally, it asserts that the judge acted improperly by utiliz- ing extensive portions of the posthearing briefs filed by the General Counsel and the Charging Party, copied ver- batim, to provide almost the entire text of his decision. The Respondent argues that this conduct demonstrates that the judge failed to consider or address any argu- ments made by the Respondent in its own posthearing brief. Because it claims this conduct demonstrates that the judge was biased against it, the Respondent asks the Board to remand the case to a different judge and to have that judge review the record and issue a proper decision.2 After carefully reviewing the entire record, as well as the parties’ posthearing briefs to the judge, we find merit in the Respondent’s contention and herein shall order that the case be remanded for review by a different ad- ministrative law judge. We are troubled that Judge Edelman did not heed the Board’s previous warning in Fairfield Tower Condominium Assn., 343 NLRB 923, 923 fn. 1 (2004), a case in which he also incorporated portions of the parties’ briefs into his decision. In that case, though we found under the circumstances that the copying was not to be per se improper, we explicitly said we did not condone the practice. The Board issued that decision on December 8, 2004, 3 months prior to Judge Edelman’s decision here. Although the transcript of the hearing in this case satisfies us that Judge Edelman con- ducted the hearing impartially, his wholesale borrowing of large portions of the parties’ briefs into his decision, as discussed below, improperly creates the appearance of 1 Judge Edelman held a hearing in this matter on June 28–July 1 and September 27–30, 2004. After the close of the hearing, the General Counsel, Charging Party, and Respondent filed posthearing briefs to the judge. After the issuance of the judge’s decision, the Respondent filed exceptions and a supporting brief; the General Counsel filed cross- exceptions; the Charging Party filed a brief in opposition to the Re- spondent’s exceptions; and the Respondent filed a reply to the Charging Party’s brief. 2 Neither the General Counsel nor the Charging Party has responded to this concern raised about the judge’s decision. partiality in favor of the General Counsel and Charging Party. “[I]t is essential not only to avoid actual partiality and prejudgment . . . in the conduct of Board proceedings, but also to avoid even the appearance of a partisan tribu- nal.” Indianapolis Glove Co., 88 NLRB 986 (1950). See Reading Anthracite Co., 273 NLRB 1502 (1985); Dayton Power & Light Co., 267 NLRB 202 (1983). The Board has stressed that it does not condone the specific practice of copying partisan briefs into a judge’s decision, al- though it has found the practice not to be per se prejudi- cial as long as the Board’s review indicates that the judge has carefully reviewed and considered the record before issuing his decision. Fairfield Tower Condominium As- sn., supra; Waterbury Hotel Management LLC, 333 NLRB 482 (2001), enfd. 314 F.3d 645 (D.C. Cir. 2003). Here, three aspects of the judge’s conduct in copying the parties’ posthearing briefs give the appearance of partiality. First, the extent of the judge’s copying: our comparison of the relevant documents reveals that ap- proximately 90 percent of Judge Edelman’s decision was copied verbatim from the briefs filed by the General Counsel and Charging Party. Second, the judge copied verbatim from these briefs both in his factual statement and legal discussion. Third, Judge Edelman said early in his decision only that he included portions of the General Counsel’s recitation of the facts; he did not mention his incorporation of substantial portions of both briefs into his legal discussion and analysis.3 The impression given is that Judge Edelman simply adopted, by rote, the views of the General Counsel and Charging Party and failed to conduct an independent analysis of the case’s underlying facts and legal issues. In order to dispel this impression of partiality, we will remand the case to the chief administrative law judge for reassignment to a different administrative law judge. This judge shall review the record and issue a reasoned decision. We will not order a hearing de novo, because the Respondent did not request a new hearing and, more importantly, because our review of the record satisfies us that Judge Edelman conducted the hearing itself prop- erly. Additionally, we instruct the new administrative law judge to rely on Judge Edelman’s credibility findings 3 In prior decisions, the Board has tolerated such borrowing when it was limited to incorporating a brief’s recitation of the facts. For exam- ple, in Washington Beef Producers, the Board found the inclusion of a brief’s recitation of the facts to be permissible if the judge determined that it fully and accurately recounted the facts of the case. 264 NLRB 1163 fn. 2 (1982), enfd. mem. 725 F.2d 1371 (9th Cir. 1984). Simi- larly, in Regency Electronics, Inc., the Board rejected a request for a trial de novo based on the wholesale borrowing from the statement of facts from the General Counsel’s posthearing brief. 276 NLRB 4 fn. 2 (1985). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072 insofar as they are based on the demeanor of the wit- nesses. ORDER IT IS ORDERED that the administrative law judge’s deci- sion of February 25, 2005 is set aside. IT IS FURTHER ORDERED that this case is remanded to the chief administrative law judge for reassignment to a different administrative law judge who shall review the record of this matter and prepare and serve on the parties a decision containing findings of fact, conclusions of law, and recommendations based on the evidence re- ceived. Following service of such decision on the par- ties, the provisions of Section 102.46 of the Board’s Rules and Regulations shall apply.