NLRB Considers Rulemaking on Virtual Hearings

On November 4, 2021, the National Labor Relations Board (NLRB) issued an Advance Notice of Proposed Rulemaking (ANPRM), soliciting public comments regarding potential revision of the Board’s rules and regulations to incorporate permanently the optional use of videoconference technology for all aspects and phases of unfair labor practice and representation case hearings.  

Prior to the COVID-19 pandemic, the Board rarely used remote technology tools such as videoconference. Section 102.35(c) of the Board’s rules does permit the contemporaneous, remote testimony of witnesses in unfair labor practice hearings “[u]pon a showing of good cause based on compelling circumstances, and under appropriate safeguards.” While on occasion witnesses were permitted to testify via videoconference in ULP proceedings (such as when a witness was barred from travel for medical reasons), the default and expectation was that all testimony would be presented in person. The Board’s rules pertaining to representation case hearings conversely do not contain a provision allowing for testimony by videoconference, and proceedings pre-pandemic were exclusively conducted in person.

Early in the pandemic, regional directors relied upon delegated authority under Section 3(b) of the National Labor Relations Act to schedule representation case hearings via videoconference or teleconference. In May 2020, the Board issued its decision in Morrison Healthcare, 369 NLRB No. 76 (2020), wherein it endorsed the use of videoconference technology for all NLRB hearings – whether for representation or related to a ULP charge. According to the ANPRM, from the Board's shift to remote hearings in Spring 2020 through the end of FY 2021, the Agency conducted 207 unfair labor practice hearings and 487 representation case hearings via the Zoom for Government videoconferencing platform.

While the Board’s decision in Morrison Healthcare resolved immediate questions about the NLRB’s approach to the conduct of hearings during the pandemic, the Board’s current rules and regulations do not provide for remote proceedings as they are currently being conducted. Accordingly, the NLRB is considering updating its rules and regulations in light of its experiences with virtual proceedings since March 2020 and is soliciting public input towards that objective.

The Board is seeking public comment by January 4, 2022, on a comprehensive 14-paragraph list of questions, including the following:

  • What role should videoconference technology play in unfair labor practice and representation case hearings after pandemic restrictions end?
  • Should it remain available as an option for the parties to conduct a fully remote hearing, a partially remote hearing, and/or an in-person hearing with remote testimony only by specifically designated witnesses?
  • Assuming the Board retains videoconference hearings as an option, what should the standard be for ordering one?
  • Does the Board's use of videoconferencing present any technological or other barriers to participation in Board proceedings?
  • If further rulemaking is desirable, should the Board adopt separate rules for the use of videoconferencing in unfair labor practice and representation case hearings?
  • Are there any privacy, confidentiality, or security concerns linked to public access to virtual Agency proceedings?

Any person wishing to comment on an ongoing rulemaking by the National Labor Relations Board must do so in accordance with the applicable Notice of Proposed Rulemaking. The full Advance Notice of Proposed Rulemaking may be found here.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.