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July 03, 2020

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NLRB Rules Against Telephonic R-Hearings Where Witnesses Will Testify

On April 1, 2020, we explained that the National Labor Relations Board (NLRB) would resume processing representation cases on April 6, 2020. Since then, NLRB regional offices have been scheduling and conducting telephonic pre-election hearings and generally have been denying videoconference requests. On May 11, 2020, the Board issued an important decision regarding telephonic versus videoconference hearings, holding that, during the COVID-19 pandemic, the regional offices “shall not direct telephonic hearings when witness testimony will be taken.” Instead, if hearings will include witness testimony, regional offices may conduct them via videoconference. Notably, if a hearing will not include witness testimony, then a telephonic hearing would be appropriate.

The Board’s decision was premised on Section 102.35(c) of its Rules and Regulations, which permits video testimony in unfair labor practice hearings “[u]pon a showing of good cause based on compelling circumstances, and under appropriate safeguards.” In this case, the Board explained that the COVID-19 pandemic qualifies as “compelling circumstances” and recognized that there are significant due process concerns (and potential violations) by denying parties the ability to observe witness demeanor, cross-examine witnesses, and ensure witnesses are not being improperly influenced by outside documents or coached by other individuals. According to the Board, conducting hearings that involve witness testimony via videoconference is an “appropriate safeguard” to adequately address those concerns.

As such, employers with pre-election hearings that involve witness testimony should insist that the NLRB regional offices at issue conduct hearings via videoconference, or otherwise seek a stay of the hearings until after in-person proceedings are available.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 139


About this Author

Thomas Stanek Employment Attorney Ogletree Deakins Phoenix

Mr. Stanek represents clients in all aspects of traditional labor relations. He also counsels and represents companies on matters regarding “noncompete” agreements. In addition, Mr. Stanek defends employers facing claims of discrimination and harassment, as well as claims alleging breaches of contract, unfair competition, wrongful discharge, defamation, interference with contract, and other torts. Mr. Stanek represents employers in both state and federal courts as well as in proceedings before administrative agencies, including the National Labor Relations Board, the Equal Employment...

Justin B. Caresia Employment Attorney Ogletree, Deakins, Nash, Smoak & Stewart Phoenix, AZ

Justin Caresia is an associate in the firm’s Phoenix office. Mr. Caresia’s practice focuses on defending employers in federal and state court and before federal and state regulatory agencies against claims of discrimination, harassment, retaliation, and wrongful discharge. He also represents employers in all aspects of traditional labor relations, including union avoidance and defending against unfair labor practice charges.

Mr. Caresia graduated cum laude from the Arizona State University Sandra Day O’Connor College of Law in 2017. While in law school, Mr. Caresia served as a judicial extern to the Honorable Diane J. Humetewa of the United States District Court for the District of Arizona and the Honorable Douglas L. Rayes of the United States District Court for the District of Arizona. He was also an Associate Editor of the Arizona State Law Journal and worked as a summer associate in the Phoenix office of a regional law firm.

Practice Groups

  • Employment Law
  • Traditional Labor Relations