The National Labor Relations Board (NLRB) upheld an administrative law judge’s (ALJ) ruling directing that an unfair labor practice trial be conducted by videoconference because of the COVID-19 pandemic. William Beaumont Hospital, 370 NLRB No. 9 (Aug. 13, 2020). This decision may have broad effect even after COVID-19 concerns have passed.

In-person testimony has been the standard for NLRB proceedings. In the past, in relatively rare instances, the NLRB has permitted remote testimony in representation case (cases involving elections) hearings, but telephone or video testimony in an unfair labor practice trial (one in which it is alleged a party violated the [National Labor Relations Act (NLRA)] has been infrequent (although NLRB rules permit it under “compelling circumstances”).

Representation case hearings are considered by the NLRB to be non-adversarial – for the purpose of “fact-gathering.” On the other hand, unfair labor practice trials require a careful assessment of conflicting evidence and testimony by the ALJ. It often is said the NLRB does not make “credibility resolutions” in representation case hearings, while assessing witness credibility is essential in an unfair labor practice trial. Viewing testimony in-person best allows the judge to observe witnesses’ demeanor, as well as anything within view of the witness, including counsel and the parties.

In today’s pandemic era, representation case hearings are routinely conducted remotely. However, the concerns over video unfair labor practice trials remain. Prior to a trial recently scheduled to be heard by videoconference, an employer requested a delay to allow an in-person proceeding. The employer cited an NLRB rule providing parties have “the right to appear at a hearing in person, by counsel, or by other representative.” Further, the company cited a litany of concerns arising from the use of video, involving credibility, technological issues, sharing and reviewing evidence, difficulties in cross-examination, and more.

The ALJ denied the request and the employer appealed to the NLRB, which upheld the ALJ.

In William Beaumont, the NLRB held that, although COVID-19 concerns were somewhat reduced, it is within the ALJ’s discretion to rule that the pandemic still amounted to “compelling circumstances” allowing use of video. Further, the ALJ did not abuse his discretion by not delaying the trial, because, at this time, the delay could be “indefinite.” Finally, the NLRB held that the employer’s concerns were speculative – and that each issue could be addressed at trial, before the ALJ, or by post-decision appeals. Significantly, the NLRB held the “right to appear” cited by the employer merely means “the right to appear at a hearing at all, not the right to be physically present.”

This decision likely will be cited to support videoconference unfair labor practice trials for the duration of the COVID-19 pandemic. However, the decision’s broad reading of ALJs’ discretion may augur greater use of video trials, even post-pandemic.

Please contact a Jackson Lewis attorney with any questions.

 

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Photo of Thomas V. Walsh Thomas V. Walsh

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments…

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments in the Weingarten Doctrine, The Board Shifts to the Right,” for the St. John’s University Journal of Legal Commentary. He is also co-author of the Atlantic Legal Foundation’s series “Leveling the Playing Field – What Charter School Leaders Need to Know About Union Organizing.” Mr. Walsh is a member of the New York State Bar Association and of the American Bar Association, and participates in the labor and employment law sections of both organizations.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993