HUDSON INSTITUTE OF PROCESS RESEARCH, INC. F/K/A HUDSON A PROFESSIONAL CORPORATION AND HIPR PACSOFT

373 NLRB No. 11 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. Hudson Institute of Process Research, f/k/a Hudson, a Professional Corporation and HIPR PACSOFT Technologies Inc., and United Electrical, Radio & Machine Workers of America. Cases 06–CA– 281972, 06–CA–284528, 06–CA–286247, 06–CA– 287894, 06–CA–287897, 06–CA–287899, 06–CA– 288501, 06–CA–288532, 06–CA–288542 January 26, 2024 ORDER1 BY MEMBERS KAPLAN, PROUTY, AND WILCOX On September 26, 2023,2 following a motion by the Respondent, Administrative Law Judge Lisa Friedheim- Weis issued an Order changing the format and location of the hearing, scheduled to begin on October 4, from virtual via Zoom videoconference to in-person at the Region 13 office in Chicago, Illinois. On September 29, the General Counsel filed a request for special permis- sion to appeal the judge’s Order. On October 2, the Re- spondent filed an opposition. On October 3, the Board granted the General Counsel’s request and ordered the hearing postponed indefinitely pending a decision on the merits of the special appeal. Subsequently, the General Counsel filed a supplement to the special appeal, the Charging Party filed a statement in support of the special appeal, and the Respondent filed a response to the Gen- eral Counsel’s supplement. On the merits, we deny the General Counsel’s appeal as to the portion of the judge’s order granting the Re- spondent’s motion to hold an in-person hearing in this matter instead of the Zoom hearing originally set by the Regional Director. The General Counsel has failed to show that the judge abused her discretion by granting this portion of the Respondent’s motion. We deny the remainder of the General Counsel’s appeal, objecting to the judge’s setting of the date and location of the hearing, as moot. The date for the in-person hearing ordered by the judge has passed. The hearing, which has yet to open, must be rescheduled. Consistent with 102.16(b) of the Board’s Rules and Regulations,3 we remand this mat- ter to the Regional Director to set a new hearing date and 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 All dates are in 2023. 3 Sec. 102.16(b), in reference to motions to reschedule hearings within 21 days of the scheduled hearing date, which was the time-frame of the Respondent’s motion in the instant case, provides: “When a motion to reschedule has been granted, the Regional Director issuing the complaint retains the authority to order a new hearing date and the responsibility to make the necessary arrangements for conducting the hearing, including its location and the transcription of the proceedings.” location and to make arrangements for conducting the in- person hearing ordered by the judge.4 Dated, Washington, D.C. January 26, 2024 ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, concurring in part and dissenting in part. This case concerns the authority of the presiding Ad- ministrative Law Judge to decide the schedule and venue for an unfair labor practice hearing. I join my colleagues in denying on the merits the General Counsel’s special appeal of that portion of the judge’s order granting the Respondent’s motion to hold an in-person hearing and in denying as moot that portion of the judge’s order setting the date and location of the hearing. I write separately to express my disagreement with my colleagues’ decision to return this matter to the Regional Director and to ex- press my serious concerns about the current division of authority to set the venue and the hearing schedule be- tween the Regional Director and the judge under Section 102.16 of the Board’s Rules and Regulations. In this case, the Regional Director scheduled the hear- ing to commence on October 4, 2023,1 and to be con- ducted virtually via ZOOM. On September 14, the Re- spondent filed a motion to, among other things, conduct the hearing in person in either Dallas, Texas, or Ann Ar- bor, Michigan. On September 26, the presiding judge granted the Respondent’s motion in part and ordered that the hearing be conducted in person in Chicago, Illinois, on October 4. Three days later, on September 29, the General Counsel filed for special permission to appeal 4 We disagree with our colleague’s contention that under Sec. 102.16 the matter should be remanded to the Division of Judges or that the parties must be invited to file motions with the Division of Judges. Our remand to the Regional Director is consistent with Sec. 102.16’s recognition that the Regional Director—and not the Division of Judg- es—retains the authority to order a new hearing date. Sec. 102.16 permits parties to file a motion to reschedule a pending hearing date with the Division of Judges in certain prehearing circumstances. Con- trary to our colleague’s claim, nothing in the rule requires the Board to remand the matter to the Division of Judges or to invite the parties to file a motion asking to reschedule a hearing date that no longer exists. In the circumstances presented here, where the outcome of the Board’s ruling is that there is no longer a hearing date, a new hearing date is needed and remanding the matter to the Regional Director is the appro- priate next step. Finally, we express no opinion on our colleague’s belief that the Board’s Rules should be amended to provide that the presiding judge or the Division of Judges be generally responsible for prehearing scheduling of hearing dates, locations, and other logistics. 1 All dates are in 2023. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 the judge’s order. The Board granted the General Coun- sel’s request on October 3. As a result, the hearing did not open as scheduled. As my colleagues observe, given the passage of time, the hearing will have to be rescheduled. The authority to make this decision is controlled by Section 102.16 of the Board’s Rules and Regulations, which states: Section 102.16 Hearing; change of date or place. (a) Upon the Regional Director's own motion or upon proper cause shown by any other party, the Regional Director issuing the complaint may extend the hearing date or change the hearing place, except that the Re- gional Director's authority to extend the hearing date is limited to the following circumstances: (1) Where all parties agree or no party objects to extension of the hearing date; (2) Where a new charge or charges have been filed which, if meritorious, might be appropriate for consolidation with the pending complaint; (3) Where negotiations which could lead to set- tlement of all or a portion of the complaint are in progress; (4) Where issues related to the complaint are pending before the General Counsel's Division of Advice or Office of Appeals; or (5) Where more than 21 days remain before the scheduled hearing date. (b) In circumstances other than those set forth in para- graph (a) of this section, motions to reschedule the hearing may be filed with the Division of Judges in ac- cordance with § 102.24(a). When a motion to resched- ule has been granted, the Regional Director issuing the complaint retains the authority to order a new hearing date and the responsibility to make the necessary ar- rangements for conducting the hearing, including its lo- cation and the transcription of the proceedings. Because this matter was suspended within the 21-day period set forth in Section 102.16(a)(5), the authority to decide whether to reschedule the case is, in the first in- stance, assigned to the Division of Judges pursuant to Section 102.16(b). Only after the Division of Judges has granted a motion to reschedule will the matter be referred to the Regional Director to “order a new hearing date” and “make the necessary arrangements for conducting the hearing.” By remanding this matter directly to the Regional Director, my colleagues improperly skip over the authority vested in the Division of Judges by the Board’s Rules. Accordingly, I believe that, under the Board’s rules, the proper course of action here is to invite the parties to file a motion to reschedule with the Divi- sion of Judges and allow the process to proceed normally under the Rules.2 2 My colleagues insist that “nothing in the rule requires the Board to remand the matter to the Division of Judges” in the circumstances But this case raises a more significant issue, specifical- ly concerning the degree of authority currently allocated to the Regional Director—the prosecutor—rather than the neutral Division of Judges during the critical pre-trial phase of unfair labor practice cases. Section 102.16 makes it abundantly clear that the Regional Director is in the driver’s seat when it comes to scheduling unfair labor practice hearings and determining the hearing’s venue (e.g., virtual or in person). Under Section 102.16(a), the authority of the Regional Director outside the 21-day window period to set the hearing place is absolute and his or her authority to set the hearing date is virtually so. And even within the 21-day period, the Regional Direc- tor “retains the authority” to set new hearing dates once given the green light to do so by the Division of Judges. Although it makes sense for Regional Directors to con- trol the conduct of hearings in representation-case pro- ceedings, where they act on behalf of the Board as neu- tral arbiters, the same rationale does not hold in the un- fair labor practice setting. In unfair labor practice cases, Regional Directors—acting on behalf of the General Counsel—are not neutral actors. Rather, they are re- sponsible for determining whether or not unfair labor practices have occurred and, if so, they then issue com- plaints and prosecute the case as a party before the Divi- sion of Judges and the Board. It is inexplicable to me that the Board would place the power to determine such fundamental aspects of an un- fair labor practice hearing in the hands of the very person who is prosecuting those allegations. Whether a Region- al Director would choose to abuse that power is beside the point. The Rules create a clear conflict of interest on the part of the Regional Director and call into question— fairly or not—the due process afforded to respondents appearing before the Board. In criminal and civil trials in Federal and State courts, by comparison, the presiding judge typically determines such weighty questions. I believe that the Board should follow suit. Rather than leaving these matters in the hands of the prosecutor, I believe that the Board should amend the Rules to place them where they belong: in the hands of the presiding judge or, if one has not been appointed yet, the Division of Judges. Section 102.35 already gives the presiding judge the authority to “[r]egulate the course of the hear- ing.” I see no valid reason why that authority should not present here. As discussed above, that is not correct. They also con- clude that the action they are ordering is “consistent with” the rules and is, therefore, “appropriate.” In my view, if the Board has promulgated rules to be followed, they should be followed. Indeed, the majority’s decision establishes a dangerous precedent: that the Board is allowed to disregard the course of action prescribed by our rules if the Board believes that, in fact, a different course of action is “appropriate.” I decline to join my colleagues in effectively finding that the spirit, and not the letter, of the Board’s rules is controlling. HUDSON INSTITUTE OF PROCESS RESEARCH 3 extend to all prehearing matters, including scheduling of cases and determining the venue.3 For all of these reasons, I respectfully concur in part and dissent in part. Dated, Washington, D.C. January 26, 2024. ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD 3 It is my understanding that one rationale for the current authority and discretion vested in the Regional Directors is that the regions bear the responsibility for coordinating some logistical matters, including hiring stenographers, for the hearing. I see no reason why such admin- istrative matters cannot (and should not) be handled by the Division of Judges, just as courts are typically responsible for such administrative matters. Certainly, agency funds could be redistributed, as needed, to support this prudent change in practice.