Use of Videoconference Technology To Conduct Unfair Labor Practice and Representation Case Proceedings

CourtNational Labor Relations Board
Citation86 FR 61090
Published date05 November 2021
Record Number2021-23599
Federal Register, Volume 86 Issue 212 (Friday, November 5, 2021)
[Federal Register Volume 86, Number 212 (Friday, November 5, 2021)]
                [Proposed Rules]
                [Pages 61090-61094]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-23599]
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                NATIONAL LABOR RELATIONS BOARD
                29 CFR Part 102
                RIN 3142-AA20
                Use of Videoconference Technology To Conduct Unfair Labor
                Practice and Representation Case Proceedings
                AGENCY: National Labor Relations Board.
                ACTION: Advance notice of proposed rulemaking.
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                SUMMARY: The National Labor Relations Board (``NLRB,'' ``Agency,'' or
                ``Board'') seeks public input on the use of videoconference technology
                to conduct, in whole or in part, all aspects and phases of unfair labor
                practice and representation case hearings and on potential amendments
                to its procedural rules regarding the use of videoconference
                technology. The Board's current Rules and Regulations provide for the
                taking of a single witness's testimony via video in an unfair labor
                practice proceeding upon a showing of good cause based on compelling
                circumstances. During the COVID-19 pandemic, the Board, through
                adjudication, sanctioned entirely remote hearings in both unfair labor
                practice and representation cases. The Board has no intention to
                [[Page 61091]]
                permanently replace in-person hearings with virtual hearings. To the
                contrary, once conditions permit, the Board intends to resume
                conducting in-person hearings. But, based on the Board's experience
                during the pandemic, the Board is considering whether to retain virtual
                hearings as an option for future use. Accordingly, the Board solicits
                responses to targeted questions regarding, among other things,
                stakeholders' experiences with remote hearings during the pandemic; the
                benefits and/or drawbacks of using videoconference technology to
                conduct remote hearings; and the need for, and content of, potential
                amendments to the Board's rules regarding use of videoconference
                technology to conduct remote hearings.
                DATES: Comments must be received on or before January 4, 2022. No late
                comments will be accepted.
                ADDRESSES: You may submit comments on this proposed rule only by the
                following methods:
                 Internet--Federal eRulemaking Portal. Electronic comments may be
                submitted through http://www.regulations.gov. Follow the instructions
                for submitting comments.
                 Delivery--Comments may be sent by mail to: Roxanne L. Rothschild,
                Executive Secretary, National Labor Relations Board, 1015 Half Street
                SE, Washington, DC 20570-0001. Because of security precautions, the
                Board continues to experience delays in U.S. mail delivery. You should
                take this into consideration when preparing to meet the deadline for
                submitting comments. It is not necessary to mail comments if they have
                been filed electronically with http://www.regulations.gov. If you mail
                comments, the Board recommends that you confirm receipt of your
                delivered comments by contacting (202) 273-1940 (this is not a toll-
                free number). Individuals with hearing impairments may call 1-866-315-
                6572 (TTY/TDD). Because of precautions in place due to COVID-19, the
                Board recommends that comments be submitted electronically or by mail
                rather than by hand delivery. If you feel you must hand deliver
                comments to the Board, hand delivery will be accepted by appointment
                only. Please call (202) 273-1940 to arrange for hand delivery of
                comments. Please note that there may be a delay in the electronic
                posting of hand-delivered and mailed comments due to the needs for safe
                handling and manual scanning of the comments. The Board strongly
                encourages electronic filing over mail or hand delivery of comments.
                 Only comments submitted through http://www.regulations.gov, hand
                delivered, or mailed will be accepted; ex parte communications received
                by the Board will be made part of the rulemaking record and will be
                treated as comments only insofar as appropriate. Comments will be
                available for public inspection at http://www.regulations.gov.
                 The Board will post, as soon as practicable, all comments received
                on http://www.regulations.gov without making any changes to the
                comments, including any personal information provided. The website
                http://www.regulations.gov is the Federal eRulemaking portal, and all
                comments posted there are available and accessible to the public. The
                Board cautions commenters not to include personal information such as
                Social Security numbers, personal addresses, telephone numbers, and
                email addresses in their comments, as such submitted information will
                become viewable by the public via the http://www.regulations.gov
                website. It is the commenter's responsibility to safeguard his or her
                information. Comments submitted through http://www.regulations.gov will
                not include the commenter's email address unless the commenter chooses
                to include that information as part of his or her comment.
                 The Board requests that comments include full citations or internet
                links to any authority relied upon.
                FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive
                Secretary, National Labor Relations Board, 1015 Half Street SE,
                Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free
                number), 1-866-315-6572 TTY/TDD.
                SUPPLEMENTARY INFORMATION:
                I. Background
                A. Remote Testimony in Board Proceedings Pre-Pandemic
                 The NLRB is an independent federal agency established in 1935 to
                promote workplace democracy and, in the words of former President
                Franklin Delano Roosevelt, ``to foster the development of the employee
                contract on a sound and equitable basis.'' For more than 85 years, the
                NLRB has been at the forefront of the effort to promote and protect the
                rights and obligations of employees, unions, and employers under the
                National Labor Relations Act (``the Act''). The NLRB achieves these
                objectives by carrying out two principal statutory functions: (1)
                Conducting representation elections among employees to determine their
                wishes regarding union representation (``representation cases''); and
                (2) investigating and prosecuting alleged unfair labor practices by
                employers and unions (``unfair labor practice cases'').
                 Under the Act, the Board, when necessary, must provide fair and
                impartial evidentiary hearings to adjudicate issues raised in unfair
                labor practice and representation cases. See 29 U.S.C. 160(b)
                (requiring a notice of hearing upon issuance of an unfair labor
                practice complaint); id. 159(c)(1) (requiring ``an appropriate
                hearing'' if a question concerning representation exists); accord 5
                U.S.C. 554 (due process standards for administrative adjudication under
                the Administrative Procedure Act). Administrative law judges presiding
                over unfair labor practice cases, and hearing officers presiding over
                representation cases, have historically conducted hearings in person.
                 With the advent of sophisticated, accessible, and high-quality
                videoconference technology in the broadband era, the Agency has taken
                several steps to integrate videoconferencing into representation and
                unfair labor practice proceedings. In 2008, the Board approved a two-
                year pilot program to test the use of video testimony in representation
                cases in limited circumstances involving remote witnesses, parties, or
                hearing officers, and/or multiple locations. See Pilot Video Testimony
                Program in Representation Cases, OM Memo 08-20 (Jan. 8, 2008). Midway
                through the pilot program, the Associate General Counsel for Operations
                reported that ``few offices [had] utilized video testimony to obtain
                evidence'' in representation cases; however, ``[t]hose Regions with
                video testimony experience state that its use can be very helpful in
                controlled situations,'' and ``offices experienced no problems when
                taking video testimony.'' Pilot Video Testimony Program in
                Representation Cases Mid-Term Report, OM Memo 09-43 (CH), at 1 (Mar.
                16, 2009). Moreover, the Associate General Counsel observed that the
                use of video technology to obtain evidence during regional
                investigations of unfair labor practice charges could be appropriate in
                limited circumstances, subject to regional personnel consulting with
                the Division of Operations-Management. Id.
                 In 2011, the Agency made the pilot program permanent. See Video
                Testimony in Representation and Unfair Labor Practice Casehandling, OM
                Memo 11-42 (CH), at 1 (Mar. 30, 2011). In the same 2011 memo, the
                Acting General Counsel expanded the earlier pilot program by
                authorizing regional attorneys to use video technology to introduce
                witness testimony in
                [[Page 61092]]
                contested unfair labor practice hearings, ``where good cause is shown,
                compelling circumstances exist and appropriate safeguards are in
                place.'' Id. at 2-3 & n.3 (listing factors to consider before granting
                a request for video testimony). Consistent with this policy, in 2015,
                the Board, with judicial approval, affirmed the judge's finding that
                the use of videoconferencing technology to obtain hearing testimony
                from a witness living abroad did not deny the respondent due process.
                EF Int'l Lang. Sch., Inc., 363 NLRB No. 20, slip op. at 1 n.1, 3-5
                (2015), enforced, 673 F. App'x 1, 3-4 (DC Cir. 2017). The Board
                rejected arguments that videoconference technology was insufficient to
                allow the judge to make credibility determinations, noting that ``the
                videoconferencing technology used enabled [the judge's] observation of
                the witness at all material times.'' Id., slip op. at 1 n.1; see also
                MPE, Inc., 09-CA-084228, 2015 WL 400660, at *1 (Jan. 29, 2015)
                (unpublished order) (finding that judge erred in refusing to allow
                video testimony from otherwise unavailable witness).
                 In 2017, the Board amended its Rules and Regulations to set
                standards for the taking of a single witness's testimony in an unfair
                labor practice case via video transmission in an otherwise in-person
                hearing. The rule allows contemporaneous, remote witness testimony
                ``[u]pon a showing of good cause based on compelling circumstances, and
                under appropriate safeguards.'' 29 CFR 102.35(c). It delineates the
                process required for a party to apply to obtain testimony by
                videoconference, 102.35(c)(1), and offers a non-exhaustive list of
                appropriate safeguards to ``ensure that the Administrative Law Judge
                has the ability to assess the witness's credibility and that the
                parties have a meaningful opportunity to examine and cross-examine the
                witness,'' 102.35(c)(2). The Board's rules pertaining to representation
                hearings do not contain a corresponding provision, and, as of March
                2020, representation hearings continue to be governed by the standards
                set forth in OM Memos 08-20, 09-43 (CH), and 11-42 (CH).
                B. Remote Hearings During the COVID-19 Pandemic
                 1. The COVID-19 pandemic, and related federal, state, and local
                guidance and orders, pushed the Board to quickly expand its
                videoconferencing capabilities and pivot to widespread use of remote
                hearings in both representation and unfair labor practice cases. In
                April 2020, at the beginning of the pandemic, Regional Directors
                exercised their delegated authority under Section 3(b) of the Act to
                schedule representation case hearings through videoconference or
                teleconference. See COVID-19 Operational Status Update (Apr. 17, 2020),
                https://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), approving the use of
                videoconference technology to hear witness testimony at an all-remote
                hearing. The Board held that videoconference hearings in representation
                cases would be appropriate ``on a showing of good cause based on
                compelling circumstances and under appropriate safeguards.'' Id., slip
                op. at 1. The Board further found that the COVID-19 pandemic
                constituted ``compelling circumstances'' warranting a remote
                preelection hearing in the case under review. Id., slip op. at 2. As
                for appropriate safeguards, the Board left ``it to the hearing officer
                in the first instance to impose appropriate safeguards, informed but
                not controlled by those listed in Sec[tion] 102.35(c)(2),'' which, as
                stated, governs remote testimony in unfair labor practice proceedings.
                Id., slip op. at 1 n.2. In contrast, the Board held that a telephonic
                representation case hearing would be appropriate ``only where
                compelling circumstances exist and no witness testimony is involved,''
                though the Board left open the possibility that parties could agree to
                a telephonic hearing. Id., slip op. at 1, 2 & n.4.
                 In April 2020, the Board's Division of Judges ordered that no in-
                person unfair labor practice hearings would be scheduled through May
                31, 2020. On May 15, 2020, the Division of Judges announced that it
                would begin holding virtual hearings on unfair labor practice
                complaints effective June 1, 2020. On August 13, 2020, the Board issued
                its decision in 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 labor practice case. Guided by Morrison, the
                Board found ``nothing in the Board's Rules, or the Act, that precludes
                a judge or Regional Director from ordering a videoconference hearing in
                an unfair labor practice case, on a showing of good cause based on
                compelling circumstances and under appropriate safeguards.'' Id., slip
                op. at 1. Nor does the Fifth Amendment's Due Process Clause per se
                preclude conducting administrative hearings via videoconference. Id.,
                slip op. at 1 n.2. The Board further found that the judge did not abuse
                his discretion in finding the COVID-19 pandemic was a compelling
                circumstance justifying a remote hearing, nor in imposing appropriate
                safeguards informed but not controlled by those listed in Section
                102.35(c)(2). Id., slip op. at 1-2. The Board emphasized that the
                respondent could raise any non-speculative due process concerns with
                the trial judge in the first instance, or later on exceptions to the
                Board under Section 102.46 of the Board's Rules and Regulations. Id.,
                slip op. at 2; see also XPO Cartage, Inc., 370 NLRB No. 10 (2020)
                (denying respondent's special appeal from judge's order directing
                remote hearing); Boeing Co., 10-CA-204795, 2020 WL 5204848 (Aug. 31,
                2020) (unpublished order) (same).
                 In a May 2021 decision, the Board acknowledged the ``evolving state
                of the pandemic,'' including more widespread vaccinations and some
                jurisdictions returning to in-person hearings and trials. Michael
                Cetta, Inc., 02-CA-142626, 2021 WL 1966555, at *2 (May 14, 2021)
                (unpublished order). Nevertheless, the Board did not find ``that
                conditions have improved so much . . . as to mandate a return to in-
                person hearings''; thus, it found, the judge did ``not abuse[ ] his
                discretion in relying on the ongoing pandemic as a compelling
                circumstance necessitating a remote hearing'' in that case. Id.
                (original emphasis).
                 2. During the early months of the pandemic, the Agency built an
                infrastructure to ensure that hearings could continue safely. The
                Agency acquired additional licenses and equipment necessary to conduct
                hearings remotely using videoconferencing technology, adding Zoom for
                Government to its software inventory as its primary remote hearing
                platform. The General Counsel and Division of Judges trained the
                Agency's Regional staff and administrative law judges on using the
                technology in a trial setting. The Division of Judges established
                guidance and best practices for its remote hearings, including methods
                for sharing exhibits and Jencks statements,\1\ managing witnesses and
                participants, and handling sequestration orders. To allow for public
                access, the Agency determined that the Regional Offices, upon request,
                would issue non-participant observers a link to any hearing they wished
                to observe.
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                 \1\ See Jencks v. United States, 353 U.S. 657, 672 (1957).
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                 For unfair labor practice cases, the Agency also set up its
                ``Courtroom Deputy'' program, designed to assist
                [[Page 61093]]
                judges and parties in remote hearings. Under that program, at the
                judge's request, an Agency employee trained in the Zoom for Government
                platform is assigned to cases scheduled for hearing. That individual
                attends the pretrial conference, conducts practice sessions with the
                parties, admits parties, witnesses, and attendees to the hearing,
                troubleshoots technological issues, shares exhibits via the platform's
                share screen function, handles the waiting room and breakout rooms, and
                otherwise assists the judge in ensuring that the hearing runs as
                smoothly as possible. The Agency screens and recuses the Courtroom
                Deputy from working on the case in any other capacity than as Courtroom
                Deputy. In Michael Cetta, Inc., the Board rejected a challenge to the
                Courtroom Deputy program. 2021 WL 1966555, at *2.
                 Beginning with the Board's shift to remote hearings in Spring 2020
                and through the end of Fiscal Year 2021, the Agency has conducted 207
                unfair labor practice hearings and 487 representation case hearings via
                the Zoom for Government videoconferencing platform.
                C. Remote Hearings and Trials at Other Federal Agencies and in the
                Federal Courts
                 The NLRB is not the only federal agency that has used or is using
                videoconference technology in its hearings before and during the
                pandemic. Prior to the pandemic, some federal agencies conducted remote
                hearings, in whole or in part, by telephone or videoconference.\2\
                Since at least 2011, the Administrative Conference of the United States
                (ACUS) has analyzed the use of remote hearing technology in federal
                administrative adjudication and issued guidance and best practices for
                federal agencies.\3\ Like the NLRB, other federal agencies transitioned
                to remote hearings on a wider scale in response to the pandemic and the
                need to comply with health and safety protocols.\4\
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                 \2\ See Admin. Conf. of the U.S., Recommendation 2011-4, Agency
                Use of Video Hearings: Best Practices and Possibilities for
                Expansion, 76 FR 48789, 48795-96 (Aug. 9, 2011), available at
                https://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion.
                 \3\ See, e.g., id.; Admin. Conf. of the U.S., Recommendation
                2014-7, Best Practices for Using Video Teleconferencing for
                Hearings, 79 FR 75114, 75119-20 (Dec. 17, 2014), available at
                https://www.acus.gov/recommendation/best-practices-using-video-teleconferencing-hearings.
                 \4\ Admin. Conf. of the U.S., Recommendation 2021-4, Virtual
                Hearings in Agency Adjudication, 86 FR 36075, 36083-85 (July 8,
                2021), available at https://www.acus.gov/recommendation/virtual-hearings-agency-adjudication (stating that use of virtual hearings
                in agency proceedings ``expanded dramatically during the COVID-19
                pandemic''). ACUS compiled and continues to update a list of agency
                issuances related to the COVID-19 pandemic, including those
                pertaining to virtual hearings. Coronavirus (COVID-19) and
                Adjudication, ACUS.gov, https://www.acus.gov/coronavirus-and-adjudication (last updated Sept. 16, 2021).
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                 As for the federal courts, they, like the NLRB, have long provided
                for remote testimony of a single witness in an otherwise in-person
                hearing. Rule 43(a) of the Federal Rules of Civil Procedure states that
                ``[f]or good cause in compelling circumstances and with appropriate
                safeguards, the court may permit testimony in open court by
                contemporaneous transmission from a different location.'' The comments
                to that rule, however, emphasize ``[t]he importance of presenting live
                testimony in court.'' Nevertheless, the pandemic also forced the
                federal courts to transition to remote proceedings. In March 2020,
                ``the Judicial Conference of the United States [ ] temporarily approved
                the use of video and teleconferencing for certain criminal proceedings
                and access via teleconferencing for civil proceedings during the COVID-
                19 national emergency.'' \5\ Federal courts have even conducted remote
                civil jury trials.\6\ The Judicial Conference has also permitted judges
                to authorize the use of teleconferencing to provide the public and
                media access to court proceedings.\7\ Although some jurisdictions have
                returned to in-person proceedings in limited circumstances, the federal
                courts have not fully returned to pre-pandemic operations.\8\
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                 \5\ Judiciary Authorizes Video/Audio Access During COVID-19
                Pandemic, UsCourts.gov (Mar. 31, 2020), https://www.uscourts.gov/news/2020/03/31/judiciary-authorizes-videoaudio-access-during-covid-19-pandemic.
                 \6\ As Pandemic Lingers, Courts Lean Into Virtual Technology,
                UsCourts.gov (Feb. 18, 2021), https://www.uscourts.gov/news/2021/02/18/pandemic-lingers-courts-lean-virtual-technology.
                 \7\ Judiciary Provides Public, Media Access to Electronic Court
                Proceedings, UsCourts.gov (Apr. 3, 2020), https://www.uscourts.gov/news/2020/04/03/judiciary-provides-public-media-access-electronic-court-proceedings.
                 \8\ As COVID-19 Cases Fall, Juries Get Back to Work,
                UsCourts.gov (May 27, 2021), https://www.uscourts.gov/news/2021/05/27/covid-19-cases-fall-juries-get-back-work. The United States
                Courts' website maintains COVID-19 related information for each
                jurisdiction. Court Orders and Updates During COVID-19 Pandemic,
                UsCourts.gov, https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic (last
                updated Sept. 30, 2021); see also Federal Courts Respond to COVID-
                19: Live Map, Bloomberg Law, https://news.bloomberglaw.com/us-law-week/arguments-axed-access-limited-courts-respond-to-covid-19-map
                (last updated Sept. 22, 2021).
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                II. Information Requested
                 The Board expects that in-person hearings will again be the norm
                once they can be held safely. Nevertheless, given the Board's largely
                successful experience with remote hearings during the pandemic, the
                Agency is evaluating what role, if any, videoconferencing should play
                in its hearings going forward and is considering whether to amend its
                representation and unfair labor practice rules to incorporate further
                use of videoconference technology in the future.
                 Your responses to the following questions will help the Board
                evaluate its options and develop a more informed notice of proposed
                rulemaking if issued. The questions are not all-inclusive, and any
                supplemental information is welcome. Comments are not required to
                address every question, but, in responding, please identify the
                question you are responding to and explain the reasons for your answer.
                 The Board is seeking public comment on the following questions:
                1. 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?
                 2. Assuming the Board retains videoconference hearings as an
                option, what should the standard be for ordering one? Should it be at
                the discretion of the judge or Regional Director, or should there be a
                higher standard?
                 3. Should the agreement of the judge or Regional Director and all
                parties be required? If all parties do not consent, what would be the
                appropriate next steps to resolve the matter? Similarly, if all parties
                want a videoconference hearing, but the judge or Regional Director does
                not agree, what should be the appropriate next steps to resolve the
                matter?
                 4. Does the Board's use of videoconferencing present any
                technological or other barriers to participation in Board proceedings?
                If so, how might the Board attempt to mitigate those potential
                barriers?
                 5. How might the Board best accommodate the needs of
                videoconference hearing participants who require the services of an
                interpreter or translator?
                 6. In what ways could the NLRB improve its use or conduct of
                [[Page 61094]]
                videoconference hearings, including best practices derived from your
                experiences in the federal courts, state courts, or other federal
                agencies, which could inform how the Board develops a rule?
                 7. Please provide feedback on the Agency's ``Courtroom Deputy''
                program that provides technical assistance to judges to allow them to
                focus on the legal elements of the hearing. Should the Agency retain
                the program? Would you have concerns about the Agency contracting with
                third parties, including court-reporting companies, to provide the same
                technical assistance? Either way, what are your suggestions for
                improving the services provided?
                 8. Did or do you feel adequately prepared to use the
                videoconference technology in a trial setting?
                 9. If further rulemaking is desirable, should the Board adopt
                separate rules for the use of videoconferencing in unfair labor
                practice and representation case hearings? If so, what are the
                differences between the two types of hearings that separate rules
                should reflect?
                 10. If further rulemaking is desirable, should the rule provide for
                a mechanism to appeal or for other Board review of a decision to hold a
                hearing via videoconference, or is the mechanism provided for in
                Sections 102.26 and 102.67(c) of the Board's Rules and Regulations
                adequate?
                 11. In your experience with NLRB videoconference hearings during
                the pandemic, have any technology limitations or problems in
                videoconference hearings interfered with the conduct of the hearings?
                 12. Has the use of videoconference technology affected the ability
                to successfully engage in mediation and/or settlement discussions?
                 13. Is there sufficient public access to Agency proceedings in a
                virtual environment?
                 14. Are there any privacy, confidentiality, or security concerns
                linked to public access to virtual Agency proceedings? If so, how
                should the Board address those concerns?
                 Dated: October 26, 2021.
                Roxanne L. Rothschild,
                Executive Secretary, National Labor Relations Board.
                [FR Doc. 2021-23599 Filed 11-4-21; 8:45 am]
                BILLING CODE 7545-01-P
                

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