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NLRB Requires Video Hearings for Union Cases Involving Witnesses

May 12, 2020, 5:44 PM

The National Labor Relations Board will require videoconferencing for all union-election hearings conducted during the pandemic that involve witness testimony.

The policy change came in a ruling late Monday in a case where a hospital food-services provider, Morrison Healthcare, challenged the decision of an NLRB regional official who had scheduled a telephonic hearing in a petition to unionize a group of the company’s employees.

The decision means that for the duration of the public-health emergency, the agency likely will rely largely on videoconference hearings in cases involving unionization petitions or where an unfair labor practice is alleged against an employer or a union. The NLRB has been resorting to mail ballots in a majority of cases during the pandemic where regional officials decide an election is appropriate.

In the Morrison Healthcare case, the workers are seeking to join the SEIU United Healthcare Workers East. The hearing would give both sides an opportunity to hash out certain disputes ahead of the union election.

Morrison Healthcare didn’t concede that a video conference would be appropriate, but pushed instead for an in-person hearing as soon as possible. The company said other methods for conducting a hearing deprive them of the opportunity to observe witnesses, or to ensure that their testimony isn’t being influenced by some other party.

The board held that the agency’s regional directors can’t order telephonic hearings during the pandemic if the proceeding will involve witness testimony.

“To the extent that the hearing will involve witness testimony, we direct the Regional Director to conduct it by videoconference,” the three-member board said in the ruling. The members, all Republicans, added “that where compelling circumstances exist, and where a hearing does not include witness testimony, the Regional Director may proceed with a telephonic hearing.”

A representative for the union didn’t immediately respond to a request for comment. A representative for Morrison Healthcare declined a request for comment.

The case is Morrison Healthcare and SEIU United Healthcare Workers East, N.L.R.B., No 12-RC–257857, 5/12/20.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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