Remote Hearings are New Default for Unfair Labor Practice Complaints

By Nelson Cary and Amanda Kuehner

The regional offices no longer need approval from the NLRB headquarters to schedule remote hearings for most unfair labor practice complaints.  Last week, the Office of the General Counsel released a memorandum instructing the regional offices to hold remote hearings for most ULP matters.  The memorandum also indicated that, effective immediately, any pending requests for remote hearings are granted.

The General Counsel’s action comes on the heels of two NLRB decisions in which a party challenged a remote hearing arrangement.  In William Beaumont Hospital and XPO Cartage, Inc., the NLRB affirmed decisions to hold unfair labor practice complaint hearings remotely.  Relying upon those decisions, and citing the continuing COVID-19 pandemic and the large number of unfair labor practice complaints, the General Counsel instructed the regional offices to move forward in scheduling remote unfair labor practice hearings.

However, a remote hearing is only permitted if neither of the following apply:

• The Region believes that unusual aspects of the contemplated trial make video hearing unfeasible; or
• There are witnesses the General Counsel wishes to call who do not have access to equipment that will enable a connection to the video technology platform the Agency is using for remote hearings.

If either of these factors are present, the regional office is instructed to consult with the Division of Operations-Management before scheduling a remote hearing.

Labor professionals with pending cases should take note of this development, as well as the NLRB’s intention to continue advancing ULP complaints notwithstanding the pandemic.