By Amanda Ottaway

Law360 (August 14, 2020, 5:15 PM EDT) -- The National Labor Relations Board gave a unanimous green light to a videoconference hearing on the Michigan Nurses Association's union-busting claims against a hospital, calling the COVID-19 pandemic a "compelling" reason to avoid in-person proceedings.

The decision Thursday by the labor board's four sitting members upheld a July order from an administrative law judge that denied William Beaumont Hospital's motion for an in-person hearing. The board shot down the hospital's "list of sundry problems" with video hearings and said the parties shouldn't wait until they could safely meet in person.

"Here, recognizing judges' discretion to order videoconference hearings in unfair labor practice cases, upon good cause based on compelling circumstances and under appropriate safeguards, directly advances the act's central goal of resolving unfair labor practice disputes without inordinate delay," the ruling said.

Despite precedent that permits video proceedings, the hospital argued it had the right to an in-person hearing, the board noted, determining that the parties' due process rights would not be violated by a switch to video.

The board's rules and regulations give administrative law judges the power to approve video proceedings "upon a showing of good cause based on compelling circumstances," the ruling said, adding that the administrative law judge made the right call to allow it in the nurses' case.

The nurses union accused the hospital of discriminating against nurses who participated in union activities, and the NLRB filed a complaint in February citing over 30 examples of alleged union-busting behavior, including questioning nurses about private Facebook posts and creating a rule that prohibited them from talking about unions.

The hospital argued that because the board has done some in-person work during the pandemic, it should conduct this hearing in person as well. But that doesn't mean the administrative judge's decision wasn't the correct one, especially because there are so many witnesses in the case at issue, the board determined Thursday.

It also agreed with the administrative judge that delaying the hearing until it could safely be held in person wouldn't work, since the hospital allegedly committed violations that need to be addressed sooner rather than later.

The NLRB paused in-person activity in March, and said in May that its chief administrative judges would consider hearing postponements on a case-by-case basis and that trial judges would decide whether testimony could be given over video.

Courts of various levels across the country have been conducting hearings, trials and other proceedings over video in recent months.

"Allowing virtual hearings is the bare minimum that can be done to protect the voice of healthcare professionals during this pandemic," Katie Scott, RN and vice president of the Michigan Nurses Association, said in a statement Friday.

"Hospital executives at Beaumont and other health systems across the state have recklessly been demanding in person proceedings," she said. "It has already been over a year since nurses first brought forward concerns about the chilling effect of Beaumont's anti-union activity. No nurse should be put in a position of having to choose between following safe social distancing procedure and giving up their rights."

Counsel for the Michigan Nurses Association deferred comment to the union Friday.

Media representatives and counsel for the hospital did not immediately return requests for comment Friday.

The nurses are represented by Amy Bachelder of Nickelhoff & Widick PLLC.

The hospital is represented by Jonathan Kaplan of Littler Mendelson PC and Gregory Brown of Littler.

The case is William Beaumont Hospital and Michigan Nurses Association, case number 07–CA–244615, before the National Labor Relations Board.

--Editing by Abbie Sarfo.

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