July 8, 2020

Volume X, Number 190

July 07, 2020

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July 06, 2020

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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.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 136

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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

310-284-5640
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League Baseball, the National Hockey League, the National Football League, the National Basketball Association, and Major League Soccer in collective bargaining, labor relations issues, such as grievance and salary arbitrations, and wage-and-hour issues.

212.969.3507
Thomas Fiascone Labor Employment Attorney
Associate

Thomas Fiascone is an associate in the Labor & Employment Law Department.

Tom earned his J.D. from Boston College Law School, where he was a senior editor and staff writer on the Boston College Law Review. During law school, Tom served as a judicial intern in the U.S. District Court for the District of Massachusetts and was a tutor in BC Law’s Academic Success Program.

Prior to law school, Tom was a paralegal in Proskauer’s Labor and Employment Law Department.

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