Adam C. Abrahms, Member of the Firm in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, in the firm’s Los Angeles office, was quoted in Law360 Employment Authority, in “Labor Attys Eager for Return of Live NLRB Hearings,” by Braden Campbell. (Read the full version – subscription required.)
Following is an excerpt:
The return of in-person hearings at the National Labor Relations Board may be on the horizon two years after the agency shifted litigation online. It’s about time, say labor attorneys weary from the ups and downs of litigation via videoconference.
The NLRB may soon set standards for resuming in-person litigation after pausing last week what would have been the first live unfair labor practice hearing since March 2020. While the COVID-19 pandemic has shown that videoconferencing has its place in board cases, it’s no substitute for live litigation, practitioners say. …
Pluses and Minuses
While the NLRB has used videoconferencing in election and unfair labor practice cases in a limited capacity dating back more than a decade, live hearings have been the historical norm. That changed with the onset of the COVID-19 pandemic in 2020.
That March, the NLRB shuttered its regional offices amid the explosion of cases in the U.S. and paused much of its operations — litigation included — while it built an infrastructure to do its work online. The agency soon resumed processing elections remotely and began conducting unfair labor practice litigation online that June. Since then, the board has conducted all litigation remotely.
“Obviously, it was what we had to do to keep the trains moving,” said Adam Abrahms, co-chair of the labor management relations practice group at management-side Epstein Becker Green. But it’s been a bumpy ride.
Abrahms said remote hearings have numerous disadvantages to in-person litigation, chief among them that it can be tougher for parties and judges to assess witnesses’ credibility over video. The format can enable gamesmanship, such as faking a bad connection or allowing witnesses to use testimonial aids they’re not supposed to have. Technical issues, parties talking over each other and tardiness returning from breaks can slow remote hearings.
And then there are the odd disruptions, like a union business representative calling in to give key testimony from a moving car, as Abrahms experienced. In that case, the parties had to wait for the witness to find a place to park, he said.
“That was obviously an extreme example … but I think most people these days can appreciate that there are situations that don’t occur in a normal courtroom,” he said. “I was in a Zoom meeting with a client yesterday and my dog came running up and jumped on my lap.” …
Change on the Horizon
This new normal may soon be in the rearview. On Thursday, the NLRB stayed an in-person unfair labor practice hearing in New Orleans while it considers a challenge by the Office of the General Counsel. That could give the board a chance to set out the circumstances in which it considers live hearings to be safe, just as it did for union elections in late 2020.
This possible review comes as the board mulls retaining remote hearings as an option even after the pandemic ends. In a November rulemaking notice, the board said it “intends to resume conducting in-person hearings” but asked stakeholders to say whether videoconferencing has a place going forward.
Abrahms, the Epstein Becker attorney, sharply criticized remote hearings in a comment on the proposal and urged the board to return to pre-pandemic norms in which it allowed remote testimony only in rare cases. While the online format can cut travel time and costs, those positives aren’t worth the downsides, Abrahms told Law360.
“I’m hopeful that they maintain something close to the standard we’ve previously had,” he said.