369 N.L.R.B. 76 (N.L.R.B. 2020)

Morrison Management Specialists, Inc. d/b/a Morrison Healthcare

National Labor Relations Board - Board DecisionsMay 11, 2020

369 N.L.R.B. 76 (N.L.R.B. 2020)

369 NLRB No. 76 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Morrison Healthcare and SEIU United Healthcare Workers East, Petitioner. Case 12–RC–257857 May 11, 2020 ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL On March 11, 2020, the Petitioner filed a petition to rep- resent a unit of employees at the Employer’s hospital. The Regional Director initially scheduled a preelection hearing for Thursday, March 19. On March 17, the Regional Di- rector postponed the hearing indefinitely, “in view of cur- rent health concerns with COVID-19.” Subsequently, on April 22, the Regional Director issued a notice of repre- sentation hearing, rescheduling the postponed hearing for Thursday, April 30, and stating that it would be a “tele- phonic” hearing. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, as amended, the Employer filed a request for review.1 On April 30, 2020, the Board issued an order staying the hearing. The issue in this case is whether the Regional Director erred in scheduling a telephonic preelection hearing. For the reasons stated below, the Employer’s request for re- view of the Regional Director’s notice of representation hearing is granted, as it raises substantial issues warrant- ing review. Upon review, we clarify that representation- case hearings that involve witness testimony should be conducted by videoconference, not telephonically. The Board’s April 30, 2020 stay order is lifted as of today’s order. Section 102.35(c) of the Board’s Rules, which pertains to hearings in unfair labor practice cases, states that “[u]pon a showing of good cause based on compelling cir- cumstances, and under appropriate safeguards, the taking of video testimony by contemporaneous transmission from a different location may be permitted.” The provi- sions relating to representation hearings do not contain a similar provision: they neither restrict or condone witness testimony or hearings conducted via telephone or by vid- eoconference. We can discern no reason to adopt a more restrictive approach to the use of videoconference hear- ings in representation cases, and so they will be allowed on a showing of good cause based on compelling 1 We have treated the Employer’s “Motion Objecting to Telephonic Representation Hearing” as a request for review. 2 We recognize that the safeguards set forth in Sec. 102.35(c) address the taking of a single witness’s testimony via video transmission in an circumstances and under appropriate safeguards.2 As for telephonic conferences, we will permit them only where compelling circumstances exist and no witness testimony is involved. The Board’s experience with remote testimony in unfair labor practice hearings is instructive with respect to delin- eating the use of video and telephonic hearings in repre- sentation cases. With respect to telephonic hearings, in Westside Painting, Inc., 328 NLRB 796 (1999), the Board declined to adopt a then-recent change to the Rules of Fed- eral Procedure which “provid[ed] for the contemporane- ous transmission of testimony from remote locations ‘for good cause shown in compelling circumstances and upon appropriate safeguards.’” Id. at 797 fn. 7. The Board ob- served that its extant Rules provided for only one excep- tion from live, oral testimony—depositions—and ex- plained that “[d]uring the almost 65-year period that Rule 102.30 or its predecessor have been in effect, there is not a single Board case permitting the use of telephone testi- mony.” Id. at 797. It further explained that a telephonic hearing would create several important due process and procedural concerns, as “[t]he opportunity to observe the demeanor of a witness is particularly important in Board proceedings because . . . a judge is often presented with situations where there is conflicting testimony and credi- bility determinations are central to the resolution of the case,” and “the use of telephone testimony may impair a party’s right of cross-examination and raise fundamental questions about the fairness of the hearing” because wit- ness could have documents (or even another individual) guiding their testimony without the Board’s knowledge. Id. Subsequently, the Board adopted Section 102.35(c) of the Board’s Rules which, as indicated, permits video tes- timony in unfair labor practice cases, and has found that the use of videoconference software adequately addresses the concerns raised in Westside Painting, as “the im- portance of the judge and the parties being able to observe the witness for credibility” and “due process” are pre- served where the use of modern videoconference technol- ogy “enable[s] the observation of the witness at all mate- rial times.” EF International Language Schools, 363 NLRB No. 20, slip op. at 1 fn. 1 (2015). Based on these considerations, we find that, where the hearing involves witness testimony, a preelection tele- phonic hearing continues to raise most of the concerns elu- cidated in Westside Painting. Although credibility otherwise in-person hearing, and they consequently may not apply in all respects to a hearing conducted entirely via video conference. We leave it to the hearing officer in the first instance to impose appropriate safe- guards, informed but not controlled by those listed in Sec. 102.35(c)(2). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 determinations are not made in preelection hearings,3 the potential impairment of cross-examination, or the inability to detect whether testimony is being guided by documents or coached by another individual, remain salient. Due to these concerns, we hold that Regional Directors shall not direct telephonic hearings when witness testimony will be taken. Regional Directors may, however, conduct vide- oconference hearings in representation cases: as discussed above, video testimony may be used, in appropriate cir- cumstances, without infringing the parties’ due process rights and does not implicate the concerns presented by telephonic testimony. All of the concerns raised by telephonic hearings, how- ever, are limited to potential issues with witness testi- mony, and such concerns are not present where there is no witness testimony. In the representation-case context, preelection hearings may not always involve witness tes- timony: for example, Regional Directors may hold hear- ings in which the parties merely state their positions on nonlitigable matters such as election details. We therefore hold that where compelling circumstances exist, and where a hearing does not include witness testimony, the Regional Director may proceed with a telephonic preelec- tion hearing.4 Turning to the present case, we find that, at the time the Regional Director issued his April 22, 2020 notice of representation hearing and continuing to date, the current Coronavirus Disease (COVID-19) pandemic constitutes “compelling circumstances” warranting a remote pre- election hearing. To the extent that the hearing will in- volve witness testimony, we direct the Regional Director to conduct it by videoconference. If, however, the hearing will not involve witness testimony, it may proceed tele- phonically. Accordingly, we remand this case to the Regional Di- rector for further proceedings consistent with this Order. Dated, Washington, D.C. May 11, 2020 John F. Ring, Chairman _ Marvin E. Kaplan, Member William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 See Marian Manor for the Aged & Infirm, Inc., 333 NLRB 1084, 1084 (2001). 4 Nothing in our decision should be read as limiting the ability of parties to agree to a telephonic hearing, provided that “compelling cir- cumstances” exist.