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.
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