As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently provided clarification as to how representation hearings should be conducted. In the last few weeks the agency has counted ballots in representation elections by videoconference.
The agency’s prosecutorial arm is now ramping back up. The NLRB Division of Judges announced on May 15 that it will resume holding hearings on unfair labor practice complaints beginning on Monday, June 1. Unfair labor practice trials have been postponed since March in light of the COVID-19 pandemic.
Starting June 1, some unfair labor practice hearings will be conducted in-person, while others will be held remotely. In preparation, the Division has acquired licenses and equipment needed to conduct hearings remotely using videoconferencing technology. According to the announcement, motions or objections with respect to holding an in-person or online hearing – or taking witness testimony by videoconference – will be decided by the designated ALJ. These decisions may be appealed to the Board with special permission under Board Rule 102.26.
Also beginning June 1, requests for postponement will be considered on a case-by-case basis by the Deputy Chief ALJ in Washington, D.C. and by Associate Chief ALJs in the New York and San Francisco offices. These decisions may also be appealed to the Board as described above.
This announcement comes at the heels of several others related to the COVID-19 pandemic. Earlier this month, the Board directed Regional Directors to hold videoconferences rather than telephonic hearings when witness testimony will be heard in a representation case. The Board has also temporarily relieved employers whose facilities have been shut down from posting notice of a violation. The implementation of new rules governing union elections also have also been delayed by 60 days until July 31, 2020.
Our team is closely monitoring NLRB developments related to the COVID-19 pandemic and will continue to provide updates as they become available.
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