Nlrb Rules and Regulations 102.46

The Commission will publish as soon as possible all comments received on www.regulations.gov without making any changes to the comments, including the personal data provided. The www.regulations.gov website is the federal government`s electronic regulatory portal, and all comments posted on it are accessible and accessible to the public. The council cautions commenters not to include personal information such as Social Security numbers, home addresses, phone numbers, and email addresses in their comments, as this submitted information becomes visible to the public via the www.regulations.gov website. It is the commentator`s responsibility to protect their information. Comments submitted by www.regulations.gov will not include the commenter`s email address unless the commenter chooses to include this information in their comment. In April 2020, the Committee`s Judges Division ordered that no face-to-face hearings on unfair labour practices be scheduled until May 31, 2020. On May 15, 2020, the Judicial Chamber announced that it would hold virtual hearings on unfair labour practices complaints starting June 1, 2020. On August 13, 2020, the Board issued its decision at William Beaumont Hospital, 370 NLRB No. 9 (2020), resolving its first challenge to a judge`s decision to hold a hearing remotely in an unfair labour practices case.

Under Morrison`s leadership, the board found “nothing in the committee`s rules or legislation that prevents a judge or regional director from ordering a videoconference hearing in an unfair labour practice case where good cause is shown on the basis of compelling circumstances and subject to appropriate safeguards.” Id., Slip op. to 1. Nor does the due process clause in the Fifth Amendment itself exclude administrative hearings by videoconference. Id., Slip op. at 1 n.2. The Chamber further noted that the judge did not abuse his discretion in finding that the COVID-19 pandemic was a compelling circumstance justifying a remote hearing, nor did it impose adequate safeguards that were informed but not controlled by the persons listed in Article 102.35(c)(2). Id., Slip op. to 1-2. The Commission noted that the respondent could raise any non-speculative due process concerns with the trial judge or, subsequently, exceptions with the Commission under section 102.46 of the Commission`s Rules of Procedure. Id., Slip op. at 2; see also XPO Cartage, Inc., 370 NLRB No.

10 (2020) (dismissal of respondent`s special appeal against judge`s decision on remote hearing); Boeing Co., 10-CA-204795, 2020 WL 5204848 (August 31, 2020) (unpublished order) (idem). In 2017, the Board amended its rules and regulations to establish standards for recording the testimony of an individual witness in an unfair labour practice case by video transmission at an otherwise in-person hearing. The rule allows simultaneous remote testimony “based on compelling circumstances and subject to appropriate safeguards.” 29 CFR 102.35(c). It describes the procedure required by a party to request testimony by videoconference, 102.35(c)(1), and provides a non-exhaustive list of appropriate safeguards to “ensure that the administrative judge has the capacity to assess the credibility of the witness and that the parties have a reasonable opportunity to examine and cross-examine the witness.” 102.35 (c) (2). The Board`s rules on alternative hearings do not contain such a provision and, as of March 2020, alternative hearings will continue to be subject to the standards set out in MC Memoranda 08-20, 09-43 (CH) and 11-42 (CH). 1. The COVID-19 pandemic and related federal, state and local policies and orders have prompted the Board to rapidly expand its videoconferencing capabilities and focus on the widespread use of remote hearings in representation and unfair labour practice cases. In April 2020, at the onset of the pandemic, Regional Directors exercised their delegated authority under paragraph 3(b) of the Act to schedule hearings of representation matters by videoconference or conference call. See COVID-19 operational status update (April 17, 2020), www.nlrb.gov/news-outreach/news-story/covid-19-operational-status-update.

On May 11, 2020, the Board issued its decision in Morrison Healthcare, 369 NLRB No. 76 (2020), which approved the use of videoconferencing technology to hear testimony at a remote hearing. The Board found that videoconference hearings in representation cases were appropriate “on proof of good cause based on compelling circumstances and subject to reasonable safeguards.” Id., Slip op. to 1. The Commission also noted that the COVID-19 pandemic presented “compelling circumstances” that warranted a remote pre-election hearing in the case under investigation. Id., Slip op. to 2. With regard to appropriate safeguards, the Commission “has primarily left it to the Hearing Officer to impose reasonable safeguards that are informed but not controlled by the persons listed in Article 102.35(c)(2)”, which, as already mentioned, governs remote testimony in unfair labour practices. Id., Slip op. at 1 n.2. In contrast, the Board found that a telephone representation hearing “would only be appropriate if there are compelling circumstances and there is no witness testimony,” although it left open the possibility that the parties could agree to a telephone hearing. Id., Slip op.

to 1, 2 & n.4. The Commission anticipates that in-person hearings will return to the norm once they can be held safely. However, given the Committee`s largely successful experience with remote hearings during the pandemic, the Agency is considering the role, if any, that videoconferencing should play in its future hearings and whether it should modify its representation and unfair working practices to include the continued use of videoconferencing technology in the future. The National Labour Relations Board (“NLRB”, “Agency” or “Board”) is seeking public comment on the use of videoconferencing technology to conduct all or part of all aspects and phases of unfair labour practices and alternative hearings, as well as on possible changes to its Rules of Procedure regarding the use of videoconferencing technology. The current rules and regulations of the board provide for the video recording of the testimony of an individual witness as part of an unfair work process if a material reason is proven on the basis of compelling circumstances. During the COVID-19 pandemic, the Board arbitrated hearings completely remotely in cases of unfair labour practices and representation. The Board does not intend to permanently replace printed page 61091 with virtual hearings. On the contrary, as soon as circumstances permit, the Committee intends to resume face-to-face discussions. However, given the Board`s experience during the pandemic, the Board is considering retaining virtual hearings as an option for future use.

As a result, the Board is seeking answers to specific questions regarding, among other things, intervenors` experience with remote hearings during the pandemic; the advantages and/or disadvantages of using videoconferencing technology to conduct hearings remotely; and the need for and content of possible amendments to the Committee`s rules on the use of videoconferencing technology to conduct hearings remotely. Delivery – Comments may be sent to: Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. Due to security measures, the Board continues to experience delays in the delivery of the U.S. Postal Service. You should keep this in mind as you prepare to meet the comment submission deadline. Comments do not need to be mailed if they were submitted electronically to www.regulations.gov. If you send your comments by mail, the Commission recommends that you acknowledge receipt of your comments by calling (202) 273-1940 (this is not a toll-free number). People with hearing loss can call 1-866-315-6572 (TTY/TTY). Due to the precautions taken due to COVID-19, the Office recommends submitting comments electronically or by mail rather than by delivery.

If you feel you need to make comments to the Board, in-person delivery will only be accepted by appointment. Please call (202) 273-1940 to arrange personal delivery of comments. Please note that due to the need for secure processing and manual scanning of comments, there may be delays in the electronic publication of hand-delivered and mailed comments. The Committee strongly recommends the electronic submission of comments by mail or in person. Only comments submitted via www.regulations.gov, delivered personally or by mail will be accepted. Ex parte opinions received by the Commission shall be included in the minutes of the establishment of the rules and shall be treated as comments only to the extent appropriate. Comments will be available to the public at www.regulations.gov:09 p.m. If further regulation is desirable, should the Committee adopt separate rules on the use of videoconferencing in unfair labour practices hearings and representation cases? If so, what are the differences between the two types of hearings that should reflect separate rules? Internet – Federal Electronic Rulemaking Portal.

Electronic comments may be submitted by www.regulations.gov.