NLRB: Hearings in Representation Cases with Witnesses Must Be Conducted By Videoconference during COVID-19 Pandemic
As most of the country’s workforce continues to adjust to the new realities of social distancing, stay-at-home orders, and limited travel, the practice of law and the forums for adjudicating disputes have shifted to video and telephonic hearings to ensure that the wheels of justice continue to turn notwithstanding COVID-19. The NLRB has been no different. While the Board’s existing Rules explicitly permit video conferences upon good cause for unfair labor practice cases, there was no corollary rule or practice for video conferences of representation case hearings involving witnesses – until now.
In Morrison Healthcare, 369 NLRB No. 76 (2020), the Board examined the underlying rationale for the rule relating to unfair labor practices (Section 102.35(c) of the Board’s Rules) – due process concerns, the ability to observe a witness’ demeanor, and the ability to cross examine a witness – and found that many of the same concerns are equally present in a representation hearing. Though representation hearings do not require credibility determinations, telephone conferences could impair cross-examination and prevent determining whether a witness is being coached by documents or by another individual.
Accordingly, when witness testimony will be heard in a representation case, such as during a pre-election hearing, the Board has directed all Regional Directors to hold videoconference testimony rather than telephonic hearings. Because the present pandemic creates perhaps the epitome of good cause based on compelling circumstances, videoconferences in these scenarios are likely to be the standard procedure for the foreseeable future. Where a hearing will not involve witness testimony, however, telephonic hearings are still permissible. The Board’s decision also reaffirms that unfair labor practice cases featuring witness testimony should be conducted via videoconference during the pandemic.
In this case, a representation petition was filed. Under the Board’s election rules the Regional Director is supposed to automatically set a hearing about 8 days from the filing. In light of the pandemic, the Regional Director issued an order for the hearing to be held by telephone. The employer filed a request for review of the decision to hold the hearing by telephone because it intended to present witnesses remotely.
The Board granted the request for review and held that because COVID-19 presents the requisite compelling circumstances, the hearing may be held remotely, and must be conducted via videoconference if any witnesses are to testify.