8 CSR 40-2.140 - Hearings
(1) The
chair shall issue a notice of hearing if after the filing of a valid petition,
the petitioner, the public employer, and all intervenors are unable to resolve
the matter through an agreed-upon method of adjustment approved by the chair.
The chair has the discretion to determine the time, place, and means (physical
appearance, telephonic, or electronic) of the hearing if the parties cannot
mutually agree to the time, place, and means.
(2) A notice of hearing shall be served on
all interested parties and shall be in writing and mailed or electronically
transmitted at least ten (10) days before the hearing, unless otherwise agreed
to by the chair and the parties. Such notice of hearing shall include-
(A) A statement of the time, place, and
nature of the hearing;
(B) The name
of the public employer, petitioner and intervenors, if any; and
(C) A statement of the legal authority and
jurisdiction under which the hearing is to be held.
(3) Hearings under these rules are considered
investigatory and not adversarial. Their purpose is to develop a full and
complete factual record upon which the board may base a meaningful report and
recommendation.
(4) Representation
hearings and the procedures following such hearings shall be in accordance with
these rules.
(5) Rights of parties
are-
(A) Any party shall have the right to
appear at such hearing to call, examine, and cross-examine witnesses and to
introduce into the record documentary or other relevant evidence, except that
the participation of any party shall be limited to the extent permitted by the
board; and provided further, that electronic copies of documentary evidence
shall be submitted to the board and to the other parties involved in the
hearing; and
(B) The board at its
discretion may require paper copies of documents and may permit the filing of
paper documents.
(6)
Rules of evidence are-
(A) The parties shall
not be bound by rules of evidence whether statutory, common law, or adopted by
the rules of court;
(B) All
relevant evidence is admissible, except as otherwise provided;
(C) The board, in its discretion, may exclude
any evidence or offer of proof if they find that its probative value is
substantially outweighed by the risk that its admission will either necessitate
undue consumption of time or create substantial danger of undue prejudice or
confusion;
(D) The board shall give
effect to the rules of privilege recognized by law;
(E) Every party shall have a right to present
his/her cause by oral and documentary evidence and to submit rebuttal evidence;
and
(F) Every party and the board
shall have the right to examine and cross-examine as may be required for a full
and true disclosure of the facts.
(7) A charging party in asserting a violation
of these rules shall have the burden of proving the allegations of the charge
by a preponderance of the evidence.
(8) Stipulation of Fact.
(A) In any proceeding an agreed statement of
facts may be introduced into the record with respect to any issue.
(B) An agreed statement of facts may be
accepted by the chair for a decision without a hearing.
(C) The acceptance of an agreed statement of
facts by the chair may be deemed a waiver of a right to hearing.
(9) Objections to Conduct of
Hearing.
(A) Any objection with respect to the
conduct of the hearing, including any objection to the introduction of
evidence, may be stated orally or in writing accompanied by a short statement
of the grounds for such objection and included in the record.
(B) No such objection shall be deemed waived
by further participation in the hearing. Such objection shall not stay the
conduct of the hearing.
(C)
Automatic exceptions will be allowed to all adverse rulings.
(10) Motions Before or After
Hearing.
(A) All motions, other than those
made during a hearing, shall be made in writing to the chair, shall briefly
state the relief sought, and shall be accompanied by affidavits setting forth
the grounds for such motion.
(B)
The moving party shall serve a copy of all motion papers on all other parties,
and within three (3) days thereafter, excluding Saturdays, Sundays, and legal
holidays, shall file with the chair the same with proof of service.
(C) Answering affidavits, if any, must be
served on all parties and proof of service shall be filed with the chair within
five (5) days, excluding Saturdays, Sundays, and legal holidays, after service
unless the chair directs otherwise.
(D) The chair may decide to hear oral
argument or to hear testimony thereon, in which case the chair shall notify the
parties of such fact and of the time and place of such argument or for the
taking of such testimony.
(E) All
such motions, rulings and orders thereon shall be part of the record of the
proceedings.
(11) Filing
of Brief and Oral Argument at Hearing.
(A) Any
party shall be entitled, upon request, to a reasonable period prior to the
close of the hearing for oral argument, which shall be included in the official
transcript of the hearing.
(B) At
the discretion of the chair, the parties may be required to submit briefs
within a reasonable time prior to the commencement of any hearing. The chair
will determine a reasonable time by consulting both parties; however, the
parties will receive a minimum of five (5) business days to prepare and file a
required brief, unless all parties agree to a shorter amount of time. Any party
shall be entitled, upon request made before the close of the hearing, to file a
brief or proposed findings and conclusions, or both, with the board who may fix
a reasonable time for such filing.
(C) Requests for further extensions of time
shall be made to the chair and may be granted at the chair's
discretion.
(D) No request will be
considered unless received at least three (3) days, excluding Saturdays,
Sundays, and legal holidays, prior to the expiration of the time fixed for the
filing of briefs or proposed findings and conclusions, unless expressly
authorized by the chair.
(E) Notice
of the request for any extension shall be served simultaneously on all other
parties and proof of service shall be furnished.
(F) Any brief or proposed findings and
conclusions shall be filed with the chair, and copies shall be served
simultaneously on the other parties, and a statement of such service shall be
furnished.
(12) At the
discretion of the chair, the hearing may be continued from day-to-day, or
adjourned to a later date or to a different place, by announcement at the
hearing by the chair or by other appropriate notice.
(13) The board will provide a hearing
reporter and may order that the hearing reporter make a transcript of a
hearing. The hearing reporter shall file the transcript with the board. Any
party may request a copy of the transcript from the board. Any costs or fees
for the hearing reporter and transcript will be shared equally among the
parties.
(A) Any party may move to correct the
transcript no more than thirty (30) days after the hearing reporter files the
transcript. The board on its own motion may order the hearing reporter to
correct the transcript any time before the board finally disposes of the
case.
Notes
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