Use of Videoconference Technology To Conduct Unfair Labor Practice and Representation Case Proceedings, 61090-61094 [2021-23599]

Agencies

• National Labor Relations Board

[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 https://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 https://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 https://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 https://www.regulations.gov.
    The Board will post, as soon as practicable, all comments received 
on https://www.regulations.gov without making any changes to the 
comments, including any personal information provided. The website 
https://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 https://www.regulations.gov 
website. It is the commenter's responsibility to safeguard his or her 
information. Comments submitted through https://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

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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

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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