XPO Cartage, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 2020

370 N.L.R.B. 10 (N.L.R.B. 2020)

370 NLRB No. 10
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.
XPO Cartage, Inc. and International Brotherhood of
Teamsters. Cases 21–CA–150873, 21–CA–
164483, 21–CA–175414, and 21–CA–192602
August 20, 2020
ORDER1
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On July 14, 2020, Administrative Law Judge Christine
E. Dibble issued an Order requiring that the supple-
mental hearing in the above-captioned case be conducted
by videoconference, finding that the current Coronavirus
Disease (COVID-19) pandemic constitutes “compelling
circumstances” warranting a remote hearing via vide-
oconference. Thereafter, in accordance with Section
102.26 of the Board’s Rules and Regulations, the Re-
spondent filed the instant request for special permission
to appeal the judge’s July 14 Order. The Charging Party
filed a response in support of the special appeal, and 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
discussed below, and as set forth more fully in William
Beaumont Hospital, 370 NLRB No. 9 (2020), we find
that the Respondent has failed to establish that conduct-
ing the hearing via videoconference would deny it due
process. To the extent that a party has nonspeculative
concerns that arise during the course of the video hear-
ing, it may raise them to Judge Dibble in the first in-
stance, 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.
Initially, we reject the Respondent’s assertion that pro-
ceeding with a videoconference hearing threatens the
parties’ due process or other cognizable rights. As dis-
cussed at greater length in William Beaumont Hospital,
nothing in the Constitution, the Act, nor the Board’s
Rules and Regulations per se prohibit holding an unfair
labor practice hearing via videoconference technology.
William Beaumont Hospital applied the framework of
Section 102.35(c) to permit a hearing via videoconfer-
ence “[u]pon a showing of good cause based on compel-
ling circumstances, and under appropriate safeguards.”
The Respondent dismissively characterizes the judge’s
1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
order as based on “convenience or expediency.” Howev-
er, accommodations driven by the worst public health
crisis in the last century are more than mere convenience,
and the Respondent has failed to establish that the Board
should not construe the pandemic as a compelling cir-
cumstance. See Morrison Healthcare, 369 NLRB No.
76, slip op. at 2 (2020) (“[T]he current Coronavirus Dis-
ease (COVID 19) pandemic constitutes ‘compelling cir-
cumstances’ warranting a remote prelection hearing.”).
Moreover, continuing the case until circumstances no
longer compel a video hearing could result in an indefi-
nite delay in the proceeding, given the uncertain forecast
for the ongoing pandemic.
Likewise, there is no merit to the Respondent’s conten-
tion that Section 102.35(c) precludes the judge from di-
recting a videoconference hearing, absent a party’s re-
quest pursuant to Section 102.35(c)(1). While Section
102.35(c)(1) provides one avenue for the judge to permit
remote witnesses to testify, it is not the only one. Morri-
son, slip op. at 1, fn. 2, counsels that Section 102.35(c),
while instructive, is not controlling in a hearing conduct-
ed entirely by videoconference. Further, we explained in
William Beaumont Hospital that judges enjoyed discre-
tion to order a videoconference hearing in appropriate
circumstances pursuant to their authority to “regulate the
course of the hearing” under Section 102.35(a)(6) of our
rules. And, to the extent the judge’s action is in tension
with Section 102.35, or any other Board rule or regula-
tion, the Board is permitted to apply its rules flexibly to
meet the demands of a given case. See NLRB v. Grace
Co., 184 F.2d 126, 129 (8th Cir. 1950) (“The Board is
not the slave of its rules.”); Section 102.121 of the
Board’s Rules and Regulations (stating that the Board
will “liberally construe[]” its rules “to effectuate the pur-
poses and provisions of the Act”).
It appears that the Respondent’s primary concern is
that a videoconference hearing will impair the judge’s
ability to engage in nuanced credibility determinations,
particularly because many of the witnesses will require
Spanish-speaking translators. In addition, the Respond-
ent anticipates that the inherent time delay caused by
video technology will create substantial difficulties. The
Charging Party advances similar concerns, and it addi-
tionally argues that video technology raises the possibil-
ity of witness tampering through means undetectable to
other parties; impedes a witnesses’ review of pertinent
documents; suffers from a witness’s potential inability to
access suitable technology; and/or will be beset with
technical glitches.
Those concerns of both parties are, at this stage, specu-
lative. Further, no party has shown that advances in cur-
rent videoconferencing technology will not be able to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
address many, if not all, of their procedural concerns.
Certainly, Judge Dibble has the discretion to determine
whether the case is too complex; cumbersome; or witness
document-, and fact-heavy to be heard remotely. 2 And,
to the extent that any party to the proceeding has a con-
crete, not speculative, concern that cannot be ameliorated
by the videoconferencing technology, or other pretrial
accommodations or stipulations among the parties, any
party may raise it to Judge Dibble in the first instance, or
on exceptions to the Board pursuant to Section 102.46 of
the Board’s Rules and Regulations, in the event the party
receives an adverse ruling.
Dated, Washington, D.C. August 20, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
2 Thus, if the judge finds herself unable to make credibility determi-
nations in a video environment, she has the discretion to handle the
situation accordingly.