William Beaumont Hospital

National Labor Relations Board - Board Decisions

Aug 13, 2020

370 N.L.R.B. 9 (N.L.R.B. 2020)

370 NLRB No. 9
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.
William Beaumont Hospital and Michigan Nurses As-
sociation. Cases 07–CA–244615
August 13, 2020
ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN, EMANUEL
AND MCFERRAN
On July 20, 2020, Deputy Chief Administrative Law
Judge Arthur Amchan denied the Respondent’s motion re-
questing that the hearing in the above-captioned case be
conducted in person, finding that the current Coronavirus
Disease (COVID-19) pandemic constitutes “compelling
circumstances” warranting a remote hearing via video
technology. Thereafter, in accordance with Section
102.26 of the National Labor Relations Board’s Rules and
Regulations, the Respondent filed the instant request for
special permission to appeal the judge’s July 20 Order.
The General Counsel filed a response, taking no position.
Having duly considered the matter, we grant the Re-
spondent’s request for permission to file a special appeal,
but we deny the appeal on the merits. For the reasons dis-
cussed below, we find that the Respondent has failed to
establish that the judge abused his discretion in finding
that good cause for a video hearing exists under the cir-
cumstances here, and that the Respondent has not shown
that a hearing held by videoconference would deny it due
process. To the extent the Respondent has nonspeculative
concerns that arise during the course of the video hearing,
it may raise them to the trial judge in the first instance,
without prejudice to its right to file exceptions with the
Board to any adverse rulings pursuant to Section 102.46
of the Board’s Rules and Regulations.
In Morrison Healthcare, 369 NLRB No. 76 (2020), the
Board recently found that the current Coronavirus Disease
(COVID-19) pandemic constitutes “compelling circum-
stances” warranting a remote preelection hearing in a rep-
resentation case. In so finding, the Board looked to Sec-
tion 102.35(c) of the Board’s Rules and Regulations,
1 Cf. Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612, 1625
(2018) (where “a more general term follows more specific terms in a list,
the general term is usually understood to ‘embrace only objects similar
in nature to those objects enumerated by the preceding specific words’”)
(quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001)).
2 To the extent the Respondent advances a vague constitutional claim,
courts have consistently rejected arguments that the Fifth Amendment’s
Due Process Clause per se precludes conducting administrative hearings
via videoconference. See Vilchez v. Holder, 682 F.3d 1195, 1199–1200
(9th Cir. 2012) (immigration proceeding); Toyama v. Leavitt, 408 Fed.
Appx. 351, 353 (Fed. Cir. 2010) (MSPB proceeding); Pokluda v. Colvin,
which permits a witness in an unfair labor practice case to
testify by video. The Board imported the general Section
102.35(c) framework to representation cases, allowing for
videoconference hearings “on a showing of good cause
based on compelling circumstances and under appropriate
safeguards.” Morrison, 369 NLRB No. 76, slip op. at 1.
We find that the judge did not err in following that same
approach in this unfair labor practice proceeding. Even
before the Board promulgated Section 102.35(c), it per-
mitted testimony by videoconference in unfair labor prac-
tice cases, finding that video can adequately address par-
ties’ concerns with “the judge and the parties being able to
observe the witness for credibility, due process, and other
reasons.” EF International Language Schools, Inc., 363
NLRB No. 20, slip op. at 1 fn.1 (2015), enfd. 673 Fed.
Appx. 1 (D.C. Cir. 2017). This is consistent with Section
102.35(c), which contemplates the taking of a single wit-
ness's testimony via video transmission during an in-per-
son hearing, even though Section 102.35(c) is not control-
ling in a hearing conducted entirely by videoconference.
Morrison, 369 NLRB No. 76, slip op. at 1 fn.2.
Notwithstanding this precedent, the Respondent claims
that the judge’s order abrogates its absolute right to an in-
person hearing under the Board’s Rules and Regulations.
We disagree. Section 102.38 of the Board’s Rules and
Regulations, on which the Respondent primarily relies,
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 a
hearing room. See Dixon v. Love, 431 U.S. 105, 113–114
(1977) (using the phrase “the right to appear in person” to
denote the right to a hearing to contest an administrative
action). Moreover, examining the “right to appear . . . in
person” in context alongside the right to appear “by coun-
sel” or “by other representative,” it becomes clear that
phrase further guarantees the right to proceed at the hear-
ing pro se.1 We find nothing in the Board’s Rules, or the
Act, that precludes a judge or Regional Director from or-
dering a videoconference hearing in an unfair labor prac-
tice case, on a showing of good cause based on compelling
circumstances and under appropriate safeguards.2
2014 WL 1679801, at *4 (N.D.N.Y. Apr. 28, 2014) (unpublished) (So-
cial Security Administration hearing). Moreover, we note that a handful
of district courts, referencing Rule 102.35(c)’s federal counterpart (FED
R. CIV. P. 43(a)), have opted to conduct bench trials remotely via vide-
oconference technology in light of the ongoing pandemic. Gould Elec-
tronics Inc. v. Livingston County Road Commission, No. 17-11130, -- F.
Supp. 3d --, 2020 WL 3717792 (E.D. Mich. June 30, 2020); Argonaut
Insurance Co. v. Manetta Enterprises, Inc., No. 19-CV-00482 (PKC)
(RLM), 2020 WL 3104033 (E.D.N.Y. June 11, 2020); RFC & ResCap
Liquidating Trust Action, No. 13-CV-3451 (SRN/HB), -- F. Supp. 3d --,
2020 WL 1280931 (D. Minn. Mar. 13, 2020).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
We further reject the Respondent’s suggestion that the
“compelling circumstances” (i.e., the ongoing Corona-
virus Disease (COVID-19) pandemic) justifying a remote
hearing in Morrison, and relied on by the judge here, are
no longer compelling. The Respondent claims that the
Board has conducted a handful of onsite representation
elections since Morrison, and the Division of Judges has
since “contemplate[d]” in-person hearings. But even if the
Board has conducted some of its business in-person since
the Morrison decision issued, that does not invalidate the
judge’s conclusions about holding an in-person hearing in
this witness-heavy case. Additionally, the judge did not
abuse his discretion in recognizing that a postponement
until an in-person hearing is feasible may result in an in-
definite delay of this case, a serious concern here, as the
Respondent is alleged to have committed numerous Sec-
tion 8(a)(3) and (1) violations during an organizing cam-
paign.
We also find that the judge did not abuse his discretion
in directing the trial judge to impose appropriate safe-
guards informed but not controlled by those listed in Sec-
tion 102.35(c)(2) of the Board’s Rules. As noted above,
that direction is consistent both with Morrison, 369 NLRB
No. 76, slip op. at 1 fn. 2, where we found that Section
102.35(c)(2)’s safeguards do not apply in all respects to a
hearing conducted entirely via videoconference, and with
Section 102.35(a)(6), which authorizes the trial judge to
“regulate the course of the hearing.”
Section 102.121 of the Rules and Regulations instructs
us to “liberally construe[]” the rules “to effectuate the pur-
poses and provisions of the Act.” Here, recognizing
judges’ discretion to order videoconference hearings in
unfair labor practice cases, upon good cause based on
compelling circumstances and under appropriate safe-
guards, directly advances the Act’s central goal of resolv-
ing unfair labor practice disputes without inordinate delay.
The Respondent’s list of sundry problems that could oc-
cur during the video hearing is premature. The Respond-
ent worries that the video technology will compromise the
trial judge’s ability to assess witness demeanor; prejudice
the Respondent’s ability to examine and cross-examine
witnesses; create issues with introducing documentary ev-
idence; result in delays in witness availability; suffer from
witnesses’ inability to access suitable technology; and/or
be beset with technical glitches. Those concerns are, at
this stage, speculative. Further, the Respondent fails to
show that advances in current videoconferencing technol-
ogy will not be able to address many, if not all, of its pro-
cedural concerns. Certainly, the trial judge has the discre-
tion to determine whether the case is too complex; cum-
bersome; or witness-, document-, and fact-heavy to be
heard remotely. And, to the extent the Respondent has a
concrete, not speculative, concern that cannot be amelio-
rated by the videoconferencing technology, or other pre-
trial accommodations or stipulations among the parties,
the Respondent 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 Re-
spondent receives an adverse ruling.
Dated, Washington, D.C. August 13, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
________________________________________
Lauren McFerran Member
(SEAL) NATIONAL LABOR RELATIONS BOARD