Oxarc, Inc.

National Labor Relations Board - Unpublished Board Decisions

Sep 23, 2020

19-CA-230472 (N.L.R.B. Sep. 23, 2020)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
OXARC, INC.,
and Cases 19-CA-230472
19-CA-237336
TEAMSTERS LOCAL 839 , 19-CA-273499
19-CA-238503
and 19-CA-232728
19-CA-248391
TEAMSTERS LOCAL 690,
and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,
and
JARED FOSTER, an individual.
ORDER1
The Respondent’s request for special permission to appeal from Administrative
Law Judge Ariel L. Sotolongo’s August 3, 2020, denial of its Motion to postpone the
hearing until it could be conducted in person is granted. On the merits, the appeal is
denied.
The Respondent argues that conducting a virtual hearing would infringe upon the
Respondent’s due process rights, there is no good cause showing for a virtual hearing,
the ALJ has not protected the integrity of the hearing under Section 102.35(c) of the
Board’s Rules and Regulations, virtual hearings require procedural mandates that go
1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
beyond what is required by the rules, and the virtual hearing undermines the
requirement that hearings be available to the public. The Respondent also contends
that the General Counsel and the Charging Party are not prejudiced by a delay.
The Board has found that the ongoing COVID-19 pandemic establishes good
cause based on compelling circumstances for taking video testimony under Section
102.35(c). William Beaumont Hospital, 370 NLRB No. 9, slip op. at 1 (2020); Morrison
Healthcare, 369 NLRB No. 76, slip op. at 1 (2020). Moreover, we have found that
because Section 102.35(c) pertains to hearings in which a single witness testifies via
video conference in an otherwise in-person hearing, the strictures of that Section are
informative but not controlling when a hearing is conducted entirely by videoconference.
William Beaumont Hospital, 370 NLRB No. 9, slip op. at 1; Morrison Healthcare, 369
NLRB No. 76, slip op. at 1, fn. 2. A video hearing can also provide for the observation
of witnesses for the purpose of credibility, as well as other due process concerns. EF
International Language Schools, Inc., 363 NLRB No. 20, slip op. at 1, fn. 1 (2015), enfd.
673 Fed. Appx. 1 (D.C. Cir. 2017).
We find that the judge did not abuse his discretion in ordering a video hearing
here. Although the Respondent particularly emphasizes the complexity and number of
exhibits involved in this case, this concern has already been addressed by the Board.
As the Board recognized in William Beaumont Hospital:
[T]he trial judge has the discretion to determine whether the case is too
complex; cumbersome; or witness-, document-, and fact-heavy to be
heard remotely. And, to the extent the Respondent has a concrete, not
speculative, concern that cannot be ameliorated by the videoconferencing
technology, or other pretrial accommodations or stipulations among the
parties, the Respondent may raise it to the trial judge in the first instance,
or on exceptions to the Board pursuant to Section 102.46 of the Rules and
Regulations, in the event the Respondent receives an adverse ruling.

The Respondent also asserts that the judge's procedural request to upload documents
that can be viewed by the other side prior to the hearing violates Board procedures. To
begin, we note that the Respondent failed to object to this procedure in response to the
judge's July 20, 2020 Pre-hearing Order or at the parties’ prehearing conference on July
27, 2020. Furthermore, we decline to find that the judge abused his discretion when the
Respondent failed to ask the judge for an alternate method for uploading documents,
such as to a private folder. Finally, although the Respondent argues that the parties are
not prejudiced by a delay, this does not mean that the judge erred in making his
determination to proceed via Zoom.
Under these circumstances, we find that the Respondent has failed to
demonstrate that the judge abused his discretion.
Dated, Washington, D.C., September 23, 2020.
MARVIN E. KAPLAN MEMBER
WILLIAM J. EMANUEL MEMBER
LAUREN McFERRAN MEMBER