In an order issued on May 11, 2020, the National Labor Relations Board lifted its April 30, 2020 stay order on representation case hearings and “clarif[ied] that representation case hearings that involve witness testimony should be conducted by videoconference, not telephonically.” Morrison Healthcare, 369 NLRB No. 76 (May 11, 2020). The Board further noted that it will permit telephonic conferences for representation case hearings “only when compelling circumstances exist and no witness testimony is involved.” Id. (emphasis added).
The Board noted that its Rules and Regulations are silent on whether videoconference testimony is appropriate in representation proceedings. Section 102.35(c), however, states:
[u]pon a showing of good cause based on compelling circumstances, and under appropriate safeguards, the taking of video testimony by contemporaneous transmission from a different location may be permitted.
The Board indicated that it saw no reason to apply a more restrictive approach to representation hearings. It noted that similar and additional concerns with telephonic testimony exist for these hearings, and therefore would continue to restrict its use. But the Board explained:
Regional Directors may, however, conduct videoconference hearings in representation cases: as discussed above, video testimony may be used, in appropriate circumstances, without infringing the parties’ due process rights and does not implicate the concerns presented by telephonic testimony.
Finally, while the Division of Judges has indicated it will not hold any unfair labor practice hearings until after May 31, 2020, at least, the Board may have foreshadowed the extent to which videoconference testimony will be utilized in those matters. In the context of the instant case, the Board stated expressly that “the current Coronavirus Disease (COVID-19) pandemic constitutes ‘compelling circumstances.’”