XPO Cartage, Inc.

370 NLRB No. 10 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. XPO Cartage, Inc. and International Brotherhood of Teamsters. Cases 21–CA–150873, 21–CA– 164483, 21–CA–175414, and 21–CA–192602 August 20, 2020 ORDER1 BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL On July 14, 2020, Administrative Law Judge Christine E. Dibble issued an Order requiring that the supple- mental hearing in the above-captioned case be conducted by videoconference, finding that the current Coronavirus Disease (COVID-19) pandemic constitutes “compelling circumstances” warranting a remote hearing via vide- oconference. Thereafter, in accordance with Section 102.26 of the Board’s Rules and Regulations, the Re- spondent filed the instant request for special permission to appeal the judge’s July 14 Order. The Charging Party filed a response in support of the special appeal, and the General Counsel filed a response taking no position. Having duly considered the matter, we grant the Re- spondent’s request for permission to file a special appeal, but we deny the appeal on the merits. For the reasons discussed below, and as set forth more fully in William Beaumont Hospital, 370 NLRB No. 9 (2020), we find that the Respondent has failed to establish that conduct- ing the hearing via videoconference would deny it due process. To the extent that a party has nonspeculative concerns that arise during the course of the video hear- ing, it may raise them to Judge Dibble in the first in- stance, without prejudice to its right to file exceptions with the Board to any adverse rulings pursuant to Section 102.46 of the Board’s Rules and Regulations. Initially, we reject the Respondent’s assertion that pro- ceeding with a videoconference hearing threatens the parties’ due process or other cognizable rights. As dis- cussed at greater length in William Beaumont Hospital, nothing in the Constitution, the Act, nor the Board’s Rules and Regulations per se prohibit holding an unfair labor practice hearing via videoconference technology. William Beaumont Hospital applied the framework of Section 102.35(c) to permit a hearing via videoconfer- ence “[u]pon a showing of good cause based on compel- ling circumstances, and under appropriate safeguards.” The Respondent dismissively characterizes the judge’s 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. order as based on “convenience or expediency.” Howev- er, accommodations driven by the worst public health crisis in the last century are more than mere convenience, and the Respondent has failed to establish that the Board should not construe the pandemic as a compelling cir- cumstance. See Morrison Healthcare, 369 NLRB No. 76, slip op. at 2 (2020) (“[T]he current Coronavirus Dis- ease (COVID 19) pandemic constitutes ‘compelling cir- cumstances’ warranting a remote prelection hearing.”). Moreover, continuing the case until circumstances no longer compel a video hearing could result in an indefi- nite delay in the proceeding, given the uncertain forecast for the ongoing pandemic. Likewise, there is no merit to the Respondent’s conten- tion that Section 102.35(c) precludes the judge from di- recting a videoconference hearing, absent a party’s re- quest pursuant to Section 102.35(c)(1). While Section 102.35(c)(1) provides one avenue for the judge to permit remote witnesses to testify, it is not the only one. Morri- son, slip op. at 1, fn. 2, counsels that Section 102.35(c), while instructive, is not controlling in a hearing conduct- ed entirely by videoconference. Further, we explained in William Beaumont Hospital that judges enjoyed discre- tion to order a videoconference hearing in appropriate circumstances pursuant to their authority to “regulate the course of the hearing” under Section 102.35(a)(6) of our rules. And, to the extent the judge’s action is in tension with Section 102.35, or any other Board rule or regula- tion, the Board is permitted to apply its rules flexibly to meet the demands of a given case. See NLRB v. Grace Co., 184 F.2d 126, 129 (8th Cir. 1950) (“The Board is not the slave of its rules.”); Section 102.121 of the Board’s Rules and Regulations (stating that the Board will “liberally construe[]” its rules “to effectuate the pur- poses and provisions of the Act”). It appears that the Respondent’s primary concern is that a videoconference hearing will impair the judge’s ability to engage in nuanced credibility determinations, particularly because many of the witnesses will require Spanish-speaking translators. In addition, the Respond- ent anticipates that the inherent time delay caused by video technology will create substantial difficulties. The Charging Party advances similar concerns, and it addi- tionally argues that video technology raises the possibil- ity of witness tampering through means undetectable to other parties; impedes a witnesses’ review of pertinent documents; suffers from a witness’s potential inability to access suitable technology; and/or will be beset with technical glitches. Those concerns of both parties are, at this stage, specu- lative. Further, no party has shown that advances in cur- rent videoconferencing technology will not be able to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 address many, if not all, of their procedural concerns. Certainly, Judge Dibble has the discretion to determine whether the case is too complex; cumbersome; or witness document-, and fact-heavy to be heard remotely. 2 And, to the extent that any party to the proceeding has a con- crete, not speculative, concern that cannot be ameliorated by the videoconferencing technology, or other pretrial accommodations or stipulations among the parties, any party may raise it to Judge Dibble in the first instance, or on exceptions to the Board pursuant to Section 102.46 of the Board’s Rules and Regulations, in the event the party receives an adverse ruling. Dated, Washington, D.C. August 20, 2020 John F. Ring, Chairman _ Marvin E. Kaplan, Member William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 2 Thus, if the judge finds herself unable to make credibility determi- nations in a video environment, she has the discretion to handle the situation accordingly.