A National Labor Relations Board regulation requires witnesses to be “examined orally under oath.” The Board has interpreted this statement as prohibiting witnesses from testifying by telephone. In a recent unfair labor practice hearing before an administrative law judge, the General Counsel to the NLRB wanted to question a witness living in Spain via videoconference. The judge permitted the testimony but set certain conditions such as requiring the presence of a video technician where the witness appeared and in the NLRB hearing room.
The company filed exceptions to the judge’s decision arguing that the Board’s rules require live testimony and that the video conference testimony should not be permitted. The Board concluded that its regulation does not preclude taking testimony by videoconference – even internationally from witnesses who are located in another country and subject to another country’s laws – and affirmed the judge’s decision to permit the videoconference testimony.