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NLRB: Employer Not Entitled to In Person, Rather Than Remote Hearing

 

William Beaumont Hospital - NLRB


Facts:  William Beaumont Hospital (“WB”) faced several allegations of committing unfair labor practices in relation to a union organizing campaign.  An Administrative Law Judge (“ALJ”) denied WB’s request to hold an in person hearing on the grounds that the coronavirus pandemic constituted “compelling circumstances” to warrant the hearing be held remotely via video technology.  WB filed an instant request with the National Labor Relations Board (“NLRB”) asking for permission to appeal the ALJ’s ruling.

Analysis:  The NLRB noted that in a prior decision from earlier this year, Morrison Healthcare, it had found the coronavirus pandemic to constitute “compelling circumstances” to warrant a remote hearing in a representation case.  In reaching this conclusion, the NLRB based its ruling on Section 102.35(c) of the Board’s Rules and Regulations.  (Section 102.35(c) allows a witness to appear and testify via video in an unfair labor practice case.)  In Morrison, the NLRB applied Section 102.35(c) to allow videoconference hearings “on a showing of good cause based on compelling circumstances and under appropriate safeguards.

The NLRB recognized that while Section 102.38 provides that “[a]ny party has the right to appear at the hearing in person, by counsel, or by other representative...”, the right to appear in person is the right to appear at a hearing at all, not the right to be physically present in the hearing room.  Consequently, the NLRB found nothing in the Board’s Rules and Regulations or the National Labor Relations Act that would prevent the ALJ from allowing the unfair labor practice hearing to take place remotely via video technology rather than in person.

The Takeaway:  This decision is a good example of the phrase “it depends.”  For instance, had the ALJ allowed an in person hearing, I think the NLRB would have deferred to that ruling and allowed it to occur in person rather than remotely.  As well, had there been a larger number of cases where in person hearings had recently been held, I think WB could have argued there was a strong precedent to begin holding in person hearings again.  Not to mention, had the ALJ or NLRB held that the coronavirus pandemic had sufficiently subsided (enough to start widespread in person hearings that is), I think WB again would have come out on top.  Unfortunately, the cards were stacked against WB here, in so much that it could not establish “compelling circumstances” to persuade the NLRB to overturn the ALJ’s decision.

Date:  August 13, 2020

Order:  https://apps.nlrb.gov/link/document.aspx/09031d45831e1bf0


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