MPE, INC.

National Labor Relations Board - Board Decisions

Jan 29, 2015

09-CA-084228 (N.L.R.B. Jan. 29, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MPE, INC.
and Case 09-CA-084228
RICHARD RANKIN
and Case 09-CA-084595
NATHAN RANKIN
ORDER
On December 3, 2014, Administrative Law Judge Mark Carissimi issued an order
denying the General Counsel’s Motion to Allow Video Testimony. Thereafter, the
General Counsel filed a timely request for special permission to appeal the judge’s
ruling, and the Respondent filed a brief in opposition.
The General Counsel’s request for special permission to appeal is granted. After
careful consideration we find that the judge erred in denying the motion to allow video
testimony. The General Counsel has demonstrated that Nathan Rankin is a key
witness in this matter, and that Mr. Rankin is unavailable to testify in person because he
is incarcerated in the federal prison in Morgantown, West Virginia. While we agree with
the judge that Skype technology, in its current form, is not a viable means for taking
video testimony, we are persuaded by the General Counsel’s argument that the
GLOWPOINT video conference technology used by the Board and by the Federal
Bureau of Prisons is acceptable for video testimony, subject to appropriate procedural
safeguards to preserve the due process rights of the parties, such as those described in
OM 08-20 (Pilot Video Testimony Program in Representation Cases), or as otherwise
may be agreed upon by the parties.
2
Accordingly, we sustain the General Counsel’s appeal, and remand this matter to
the Administrative Law Judge for a hearing, which will include the video testimony of
Nathan Rankin. The parties are directed to meet and confer in advance of the hearing
regarding the appropriate procedural safeguards for taking Mr. Rankin’s video testimony
within the capabilities of the GLOWPOINT video conference technology, and to ensure
that there are no technological problems that could impede the hearing. If the parties
are unable to agree, the judge shall implement such procedural safeguards as he
believes are appropriate.
This order is without prejudice to the judge striking the video testimony of Rankin if
the judge subsequently determines that the actual circumstances of the video testimony
do not provide the parties with a meaningful opportunity to examine and cross-examine
the witness, or give the judge the appropriate ability to assess Mr. Rankin’s demeanor
for the purposes of assessing his credibility.1
Dated, Washington, D.C., January 29, 2015
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER
HARRY I. JOHNSON, III, MEMBER

1 The Respondent’s request that it be awarded attorney’s fee and costs is denied.