Written by Attorney Tae Y. Kim for the Winter 2021 Edition of Powerhouse Points, A Quarterly Litigation Newsletter. Read the full issue here.
- Labor practice hearings have resumed, but can now take place virtually
- The NLRB’s decision has given respondents even more uncertainty because requires respondents show concrete concerns, but the decision only increases ambiguity for respondents.
- Respondent’s counsel should assess the impacts of a virtual labor practice hearing on its case.
In May of 2020, the National Labor Relations Board (“NLRB”) announced that it would no longer postpone unfair labor practice hearings due to COVID-19, and that effective on June 1, 2020, these hearings could now take place virtually. However, since the NLRB’s announcement, multiple respondents have opposed having virtual hearings. Several of these respondents argued that virtual hearings would deny them due process under Section 102.38 of the NLRB's Rules and Regulations, which states that “[a]ny party has the right to appear at the hearing in person, by counsel, or by other representative . . . .” William Beaumont Hosp., 370 NLRB No. 9 (Aug. 13, 2020); XPO Cartage, Inc., 370 NLRB No. 10 (Aug. 20, 2020). These respondents also argued that “the video technology will compromise the trial judge's ability to assess witness demeanor; prejudice the [r]espondent[s]' ability to examine and cross-examine witnesses; create issues with introducing documentary evidence; result in delays in witness availability; suffer from witnesses' inability to access suitable technology; and/or be beset with technical glitches.” William Beaumont Hosp., 370 NLRB No. 9.
In rejecting these arguments, the NLRB ruled that “the right to appear in person is the right to appear at a hearing at all, not the right to be physically present in a hearing room.” Id. The NLRB based its decisions on Section 102.121 of its Rules and Regulations, which allows it to “liberally construe the rules to effectuate the purposes and provisions of the Act,” and thus its “discretion to order videoconference hearings in unfair labor practice cases, upon good cause based on compelling circumstances and under appropriate safeguards, directly advances the Act's central goal of resolving unfair labor practice disputes without inordinate delay.” Id. (internal quotations omitted)
The NLRB also took the position that those respondents “fail[ed] to show that advances in current videoconferencing technology will not be able to address many, if not all, of its procedural concerns,” the “the trial judge has the discretion to determine whether the case is too complex; cumbersome; or witness, document, and fact-heavy to be heard remotely,” and that the respondents concerns were speculative. Id. Further, The NLRB ruled that “to the extent the [r]espondent has a concrete, not speculative, concern that cannot be ameliorated by the videoconferencing technology, or other pretrial accommodations or stipulations among the parties, the [r]espondent may raise it to the trial judge in the first instance, or on exceptions to the Board pursuant to Section 102.46 of the Rules and Regulations, in the event the [r]espondent receives an adverse ruling.” William Beaumont Hosp., 370 NLRB No. 9; see also XPO Cartage, Inc., 370 NLRB No. 10.
The NLRB’s position that respondents can raise non-speculative issues that cannot be “ameliorated” with “pretrial accommodations or stipulations” is particularly interesting, considering that respondents in NLRB hearings oftentimes litigate in the dark because they are not entitled to any pretrial discovery. See N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 236 (1978). Without the NLRB or the other opposing party (e.g., a union) being required to provide respondent’s counsel any pre-trial discovery or accommodations, the only time respondent’s counsel will be able to question the NLRB’s witnesses and review documentation pertaining to those witnesses—or even know who the NLRB will call as a witness at trial—is at trial. This puts respondent’s counsel in a difficult place to argue what “concrete” concerns a virtual trial will present.
For now, the NLRB’s decision creates a spectrum of potential outcomes. In the worst case scenario, virtual trials will exacerbate the inequities respondents’ counsel have; in the best case scenario, virtual trials will force the litigants to compromise and conduct some sort of pretrial discovery that will facilitate a smoother trial. In the interim, respondent’s counsel must take important care to assess the impacts that a virtual hearing will have on its case and plan accordingly.
 NLRB hearings are its equivalent to state and federal court trials, and in many ways are conducted similarly, except (as explained further below), in regards to pre-trial discovery.