As most of the country’s workforce continues to adjust to the new realities of social distancing, stay-at-home orders, and limited travel, the practice of law and the forums for adjudicating disputes have shifted to video and telephonic hearings to ensure that the wheels of justice continue to turn notwithstanding COVID-19.  The NLRB has been no different.  While the Board’s existing Rules explicitly permit video conferences upon good cause for unfair labor practice cases, there was no corollary rule or practice for video conferences of representation case hearings involving witnesses – until now.

In Morrison Healthcare, 369 NLRB No. 76 (2020), the Board examined the underlying rationale for the rule relating to unfair labor practices (Section 102.35(c) of the Board’s Rules) – due process concerns, the ability to observe a witness’ demeanor, and the ability to cross examine a witness – and found that many of the same concerns are equally present in a representation hearing.  Though representation hearings do not require credibility determinations, telephone conferences could impair cross-examination and prevent determining whether a witness is being coached by documents or by another individual.

Accordingly, when witness testimony will be heard in a representation case, such as during a pre-election hearing, the Board has directed all Regional Directors to hold videoconference testimony rather than telephonic hearings.  Because the present pandemic creates perhaps the epitome of good cause based on compelling circumstances, videoconferences in these scenarios are likely to be the standard procedure for the foreseeable future.  Where a hearing will not involve witness testimony, however, telephonic hearings are still permissible.  The Board’s decision also reaffirms that unfair labor practice cases featuring witness testimony should be conducted via videoconference during the pandemic.

In this case, a representation petition was filed.  Under the Board’s election rules the Regional Director is supposed to automatically set a hearing about 8 days from the filing.  In light of the pandemic, the Regional Director issued an order for the hearing to be held by telephone.  The employer filed a request for review of the decision to hold the hearing by telephone because it intended to present witnesses remotely.

The Board granted the request for review and held that because COVID-19 presents the requisite compelling circumstances, the hearing may be held remotely, and must be conducted via videoconference if any witnesses are to testify.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Thomas B. Fiascone Thomas B. Fiascone

Thomas Fiascone is an associate in the Labor & Employment Law Department. Tom has experience practicing in federal and state courts, and before administrative agencies such as the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission. As part of his employment…

Thomas Fiascone is an associate in the Labor & Employment Law Department. Tom has experience practicing in federal and state courts, and before administrative agencies such as the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission. As part of his employment litigation practice, Tom has assisted in single-plaintiff lawsuits and class and collective actions. Tom also has experience practicing traditional labor law, assisting with collective bargaining negotiations, arbitration proceedings, and responding to unfair labor practice charges.

Tom has represented clients across many different industries, including representing financial institutions, sports entities, healthcare institutions, utility providers, public transportation services, and news and media organizations.

Tom also maintains a pro bono practice, advising local non-profits and charitable organizations on day-to-day labor and employment issues.

Tom earned his J.D. from Boston College Law School, where he was a senior editor and staff writer on the Boston College Law Review. During law school, Tom served as a judicial intern in the U.S. District Court for the District of Massachusetts.