Blog Post Co-Authored by Amber Williams and Megan Gibson:

For the first time in the National Labor Relations Board’s history, a witness participated in a hearing via video teleconferencing (VTC).  At the time of the hearing, the witness resided in Madrid, Spain, and had no plans of returning to the United States.  Administrative Law Judge Mary Miller Cracraft permitted the witness to testify remotely via VTC.   She noted the respondent was not denied due process because the safeguards in place at the hearing permitted flawless audio and video quality, ensuring that she could observe the witness’s demeanor as well as if the witness had been physically present.  

In addition, Judge Cracraft noted that existing law does not prohibit the use of remote testimony.  She stated that the Board’s rules express a preference for oral testimony and require that the witness be physically present in the hearing room when examined, unless the witness is unavailable.  In this instance, Judge Cracraft emphasized that the witness had no plans to return to the United States for the hearing.  She also acknowledged that, while not controlling, the Federal Rules of Civil Procedure (FRCP) are often referred to by the Board for guidance.  She stated that FRCP 43(a) permits remote testimony when (1) there is “good cause in compelling circumstances” and (2) “appropriate safeguards” are in place during the hearing; the rule’s advisory notes indicate that mere convenience is not a sufficient reason for allowing remote testimony.  Interestingly, Judge Cracraft provided examples of federal courts demonstrating greater receptivity to using testimony via VTC than the Advisory Committee on Civil Rules, especially in cases involving international travel.[1]

Most importantly, Judge Cracraft stated that “[t]he entire proceeding was as spontaneous as live testimony.”  Because the remote experience mirrored the in-person experience, the judge concluded that the witness’s “testimony by video may be evaluated on an equal footing with the testimony of witnesses appearing in person at the hearing.”

Click here to read the decision.[2]

[1] Because of improvements in technology since the 1996 advisory notes were drafted, federal courts may be more open to the use of VTC than the Advisory Committee was.

[2] This is a recommended decision; it has not yet been reviewed by the Board.


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