Use of Videoconference Technology To Conduct Unfair Labor Practice and Representation Case Proceedings
| Published date | 05 November 2021 |
| Citation | 86 FR 61090 |
| Record Number | 2021-23599 |
| Section | Proposed rules |
| Court | National Labor Relations Board |
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
