ARBITRATION CASES ("A" Cases) under Chapter 391-65 WAC - A PERC staff member (Arbitrator) holds a hearing to receive evidence and arguments on a grievance dispute. The Arbitrator issues a written decision which is final and binding on the parties. Arbitration decisions cannot be appealed to the Commission. Typically, the assigned arbitrator will tape record the hearing for his/her own use. The hearing is not recorded by a court reporter.

UNIT CLARIFICATION ("C" Cases) under Chapter 391-35 WAC - A PERC staff member (Hearing Officer) holds a hearing to receive evidence and arguments on a proposed bargaining unit modification. The Executive Director (or the Hearing Officer, under authority delegated in some cases) issues a written decision. Any party can appeal. The Commission considers the evidence received by the Hearing Officer, and issues a written decision which affirms, modifies or reverses the staff decision.

DECLARATORY ORDERS ("D" Cases) under Chapter 391-08-520 WAC - These cases can only be processed with the consent of all parties to be bound by a decision. If all parties consent, the petition and any responses are forwarded to the Commission, which issues a written decision.

REPRESENTATION CASES ("E" Cases) under Chapter 391-25 WAC - PERC's Representation Coordinator obtains a list of employees from the employer, verifies that the petition is supported by at least 30% of the employees involved, and reviews potential issues with all parties (usually in a telephone conference call). If there are disputed issues, a PERC staff member (Hearing Officer) holds a hearing to receive evidence and arguments, and the Executive Director (or the Hearing Officer, under authority delegated in some cases) issues a written decision.

The PERC staff conducts a secret ballot election (usually by mail ballot) or cross-check (under limited circumstances), and issues a tally of the result. Any party can file objections (appeal) after the tally is issued. If a hearing is warranted based upon the objections, a hearing is directed. Following the hearing, the Commission considers the documents and evidence received by a Hearing Officer, and rules on the objections, either upholding the results of the election or overturning the election and directing a new election.

FACT-FINDING CASES ("F" Cases) under Chapter 391-55 WAC - This process is available for school district certificated employees (Chapter 41.59 RCW) and state civil service employees (Chapter 41.80 RCW) if the employer and union do not reach an agreement in mediation about a contract. An impartial person (Fact-Finder) selected from PERC's Dispute Resolution Panel or assigned from the PERC staff holds a hearing to receive evidence and arguments, and issues (non-binding) written recommendations on what the terms of a new contract should be. Fact - Finding recommendations cannot be appealed to the Commission.

INTEREST ARBITRATION CASES ("I" Cases) under Chapter 391-55 WAC - This process is available for fire fighters, paramedics, nuclear security guards, public transit workers, individual providers of home care, some county corrections personnel, some fire dispatchers, and some law enforcement officers, if the employer and union do not reach agreement in mediation about a contract. The PERC mediator can recommend that the unresolved issues be submitted to interest arbitration. An impartial person (Neutral Chairperson) is selected.

The Neutral Chairperson can be selected from a mutually agreeable external source, from PERC's Dispute Resolution Panel or from the PERC staff. The Neutral Chairperson holds a hearing to receive evidence and arguments, and issues a (final and binding) written decision establishing the terms of a new contract. Interest arbitration decisions cannot be appealed to the Commission.

NONASSOCIATION CASES ("N" Cases) under Chapter 391-95 WAC - When a public employee and a union disagree about the employee's right to religious-based nonassociation under state law, PERC holds a hearing and makes a decision on whether the employee is eligible for nonassociation, and who receives the money the employee pays instead of paying union dues. If an employer and union agree to impose "union security" obligations on bargaining unit employees and an employee asserts a religious-based right of nonassociation under state law, the employee and the union are expected to communicate with one another before either of them files a case with PERC. The PERC staff reviews incoming petitions to determine whether they are complete and legally sufficient (usually within 30 days after a case is filed). If the petition is complete and suffiencient, PERC will mail a preliminary ruling letter to all parties listing the issues to be resolved. If a petition is defective:

• PERC mails a deficiency notice to all parties, giving a deadline to cure the defect; and
• PERC dismisses the case if the defect is not cured.
• If a nonassociation petition appears to be in good order or defects have been cured:
• PERC mails a preliminary ruling letter to all parties, listing the issues to be resolved.

A PERC staff member (Examiner) then holds a hearing to receive evidence and arguments about the employee's religious beliefs and about who should receive alternative payments; the hearing will be recorded by a court reporter, and all witnesses will be sworn. The parties often submit post-hearing briefs to supplement their legal arguments. The Examiner issues a written decision.

The employee or union can appeal a dismissal or an Examiner's decision. The Commission considers the documents and the evidence received by the Examiner, and issues a written decision which affirms, modifies or reverses the Examiner's decision.

UNFAIR LABOR PRACTICE CASES ("U" Cases) under Chapter 391-45 WAC - The PERC staff reviews incoming complaints (usually within 30 days after a case is filed) applying an "assuming all of the facts alleged are true and provable" test. The PERC staff reviews incoming complaints to determine whether they are complete and legally sufficient (usually within 30 days after a case is filed).

If an unfair labor practice violation could be found:

• PERC mails a preliminary ruling letter to all parties, listing the allegations that will be the subject of a hearing and setting a deadline for the respondent to file an answer;

If a complaint is defective:

• PERC mails a deficiency notice to all parties giving a deadline to cure the defect; and
• PERC dismisses the allegation (or entire complaint) if the defect is not cured.

A PERC staff member (Examiner) holds a hearing to receive evidence and arguments; the hearing will be recorded by a court reporter, and all witnesses will be sworn. The parties often submit post-hearing briefs to supplement their legal arguments. The Examiner issues a written decision.

Any party can appeal a dismissal or an Examiner's decision to the Commission. The Commission considers the documents and evidence received by the Examiner, and issues a written decision which affirms, modifies or reverses the Examiner's decision.

Chapter 391-08 WAC - Rules of Practice and Procedure applies to all PERC cases. It covers case docketing and numbering, notice of appearance, computation of time, filing and service of papers, continuances, subpoenas, interpreters, citation of decisions, confidentiality of agency records and location of agency offices. Some provisions in Chapter 10-08 WAC - Model Rules of Procedure also apply in cases before PERC.

PREPARING FOR A PERC HEARING:

Notice of Hearing - PERC issues a formal notice in "C", "D", "E", "N" and "U" cases, announcing the date, time, and location of a hearing. See WAC 10-08-040.

Interpreters and Reasonable Accommodations - PERC takes responsibility in some cases, but the parties have this responsibility in other types of cases. See WAC 391-08-315.

PERC will provide interpreters for non-English-speaking or impaired parties or witnesses in "C", "D", "E", "N", and "U" cases, and will also provide reasonable accommodation of facilities or services if requested for a disabled party or witness. These requests must be submitted to PERC two weeks prior to the hearing.

The parties are responsible for providing interpreters and/or reasonable accommodations needed by themselves or by their witnesses in other types of cases.

Witnesses - You need to arrange for your own witnesses before the hearing. You may request (but are not entitled to) pre-hearing interviews with the witnesses that will be called by other parties. To preserve their impartiality, PERC staff members cannot be called as witnesses.

Subpoenas - These orders direct witnesses to attend a hearing, and to bring specified materials with them (the Latin term "subpoena" translates roughly as "subject to penalty"). See WAC 391-08-310. You do not need to issue a subpoena to witnesses who are willing to participate in a hearing. If a witness does not volunteer to participate, or needs a subpoena to get time off to attend the hearing, you need to serve a subpoena on the witness prior to the hearing.

Attorneys can sign their own subpoenas in "C", "D", "E", "N", and "U" cases. See RCW 34.05.446(1). PERC staff members can sign subpoenas requested by a party, but you need to make your request several days before the hearing to allow time for processing the request.

The party that wants the witness to attend must give or send the subpoena to the witness, and must offer witness fees and expenses in "C", "D", "E", "N", and "U" cases. A witness or another party may ask PERC to cancel (quash) or modify a subpoena that is claimed to be unreasonable or oppressive.

Teleconference Hearings - Under limited circumstances, PERC can conduct part of a hearing by telephone. If you want any testimony taken by telephone, you must take the following actions at least two weeks prior to the hearing:

• Notify other parties, and find out if they agree or oppose your request;
• Notify the PERC staff member of your request, and whether the other parties agree or oppose your request; and

All documentary evidence to be used with the telephone witness must be sent to the witness in advance. See RCW 34.05.449(3), WAC 10-08-140(2), and WAC 10-08-180. If the request is approved, the PERC staff member must issue an amended notice of hearing in "C", "D", "E", "N", and "U" cases not less than seven days before the hearing, stating that part or all of the hearing will be conducted by telephone. See WAC 10-08-040(1).

Who Can Attend? - Attendance at PERC dispute resolution proceedings varies by case type: Mediation sessions ("G" and "M" cases) are private, with attendance limited to the mediator(s) and the representatives of the parties;

Grievance arbitration hearings ("A" and "P" cases) are private under the "Code of Professional Responsibility for Arbitrators of Labor-Management Disputes" applicable to those cases. Unless the parties agree otherwise, attendance is limited to the arbitrator, the representatives of the parties, and the witnesses they call.

Hearings in statutory proceedings ("C", "D", "E", "F", "I", "N", and "U" cases) are open to the public, with the following persons normally present:

• The PERC staff member or other impartial person (Arbitrator, Examiner, Fact-Finder, or Hearing Officer);
• A court reporter (contracted by PERC for "C", "D", "E", "N", and "U" cases, but only present in other types of cases if arranged for and paid by the parties);
• The representatives of the parties;
• The witnesses called by the parties; and
• Audience members and representatives of the news media (who must not engage in demonstrations or other activities that disrupt the hearing process).

Under the direction of an Examiner, the parties may:

• Have any last-minute discussion about settling particular issues or the entire dispute;
• Stipulate (agree on) any facts that are not in dispute;
• Sign the PERC appearance sheet (so PERC will have the correct spelling of participants' names for the transcript of the hearing and the decision);
• Exchange witness lists and discuss problems about availability or sequence of witnesses;
• Review the exhibits that will be proposed by all parties, and stipulate (agree on) the authenticity of any exhibits that are not in dispute; and
• Discuss whether some or all witnesses should be excluded from the hearing room ("sequestered") while other witnesses are testifying. Each party will keep its attorney or representative and one key person in the hearing room even if other witnesses are sequestered. (If the parties disagree, the PERC staff member will make a ruling.)
• Time spent on these activities before the start of the hearing tends to cut down on surprises and makes the hearing go smoother. Please arrive early.

Going "On the Record" - When the PERC staff member says, "The hearing will be in order" all other conversation in the room must stop. PERC staff members also:

• Announce the case number and their name, so the information can be included in the transcript of the hearing.
• Explain the role of the court reporter (who takes down everything said while the hearing is in session), and instruct those present to ask the PERC staff member, "Can we go off the record?" if they want to take a break.
• Remind the parties to give concise reasons in support of motions or objections.
• Invite the parties (or their representatives) to state their names for the record, so the information can be included in the transcript of the hearing.
• Admit stipulated (agreed on) exhibits and other stipulations of fact into the record; and
• Ask the parties if they have any preliminary motions. (The PERC staff member will listen to the parties' arguments, and will grant or deny each motion.)
• Opening Statements - PERC staff members will invite the parties to explain their theories of the case and/or what they intend to prove at the hearing. Opening statements are not evidence!

Who Goes First?

• The employer normally goes first in "A" and "P" cases involving discipline or discharge.
• The union normally goes first in "A" and "P" cases on issues other than discipline/discharge.
• The employee normally goes first in "N" cases.
• The party that filed the complaint normally goes first in "U" cases.
• Other parties may make their opening statements at this time, or they may reserve their opening statement until they begin to present their own witnesses.

Burden of Proof For most issues (and sometimes for entire cases) one of the parties will lose unless it proves its claims or allegations. This is called the "burden of proof." This burden varies by the type of case:

• In "A" cases involving discipline or discharge, the employer is in the best position to know why it took the disputed action, and has the burden of proof;
• In "A" cases involving issues other than discipline/discharge, the union is in the best position to know what theory it is advancing, and has the burden of proof;
• In "C" and "E" cases, a party proposing exclusion of an employee from all collective bargaining rights has the burden of proof as to the status of that employee;
• In "N" cases, the employee claiming the right of nonassociation has the burden of proof;
• In "U" cases, the party that filed the complaint has the burden of proof;
• In "U" cases, a respondent advancing an "affirmative" defense (other facts or circumstances that excuse the challenged conduct) has the burden of proof for that defense.

The party that has the burden of proof on an issue goes first with presenting evidence on that issue, and other parties then respond with their own evidence and arguments. If PERC staff members allow adjustments to the order of presentation to accommodate the availability of witnesses, that does not change the burden of proof. Even if other parties present no evidence, a party that fails to meet its burden of proof will lose that issue (or the entire case).

To find out more about PERC hearings, evidence and objections at PERC hearings, see PERC's Practitioner's Guide.

Calling and Examining Witnesses - Witnesses are asked to sit where they can be seen and heard by the PERC staff member, by the reporter, and by the representatives of all parties. When it is your turn to call a witness, say, "I call (name of witness) as a witness." Witnesses must promise to tell the truth, and it is a crime (perjury) under Washington state law to lie while testifying.

The PERC staff member serving as the Hearing Officer or Examiner, or the court reporter will administer the oath or affirmation. The first question to ask your witness is, "Please give your name and address."

Follow up with questions that bring out additional identifying facts (how or why the witness knows something about the dispute to be decided by PERC).

Ask additional questions (direct examination) that get your witness to tell what they know about facts within his or her knowledge.

Objections - Other parties can interrupt the questioning of a witness with an "objection" if they claim a question asked, or an answer given, is improper. When an objection is made, the witness must stop talking until the PERC staff member makes a ruling on the objection. The PERC staff member will provide an opportunity for the party questioning the witness to respond to an objection, and will then rule on the objection. The questioning of the witness can then either continue or shift in a different direction, as appropriate.

Cross-examination - Regardless of which party calls a witness, other parties always have a right to cross-examine the witness. Leading questions are allowed, and cross-examination is not specifically limited to the scope of the direct examination.

Re-direct examination and Re-cross-examination - One or more additional rounds of questioning are normally allowed for each witness: The party that called the witness is allowed to ask follow-up questions (re-direct examination) after the other parties finish their cross-examination; If there is re-direct examination, other parties will be allowed to ask follow-up questions (re-cross-examination) to complete the testimony.

Exhibits - The parties can have documents and other tangible evidence made part of the record at a hearing. To start this process at a hearing, say: "Please have this numbered as an exhibit."

Note: Petitions, complaints, answers, motions, and other formal papers filed with PERC prior to a hearing are already part of the official record in the case, and do not need to be resubmitted as exhibits at a hearing. Letters, contracts, and other documents filed as attachments to formal papers still need to be admitted in evidence. If you are uncertain about the status of any document, ask the PERC staff member, "Is the (name of document) already part of the record in this case?" The PERC staff member or reporter will assign the next exhibit number.

The party proposing an exhibit must have at least four copies available at the hearing (two copies for PERC, one copy for its own use, and a copy for each of the other parties), and the other parties will be entitled to see the exhibit before it is shown to a witness. Transcript -

• If a court reporter is present, the reporter will produce a written transcript of the hearing.
• A reporter contracted by PERC (in "C", "D", "E", "N", and "U" cases) usually take about three weeks to produce a verbatim (exact) transcript of what was said at the hearing.
• The reporter files the original transcript with PERC.
• The reporter reserves the right to sell copies of the transcript to the parties, so parties that want a copy of the transcript need to purchase it from the reporter.
• A reporter contracted by the parties (in "A", "F", "I", and "P" cases) also produces a verbatim (exact) transcript of what was said at the hearing.
• The reporter must provide the original transcript or at least a copy to the PERC staff member or Dispute Resolution Panel member who held the hearing, with the cost for that copy paid by the parties.
• The parties make their own arrangements with the reporter, including ordering and paying for their own copies of the transcript.
• A party that believes the reporter has misquoted what was said at the hearing can ask to have the transcript corrected. The motion (or a stipulation of all parties) must be filed with PERC (and served on other parties) within 10 days after the transcript is received, unless the PERC staff member allows a different period. See WAC 10-08-219. The PERC staff member who held the hearing will give other parties a chance to respond to a motion filed by one party, and will rule on the motion.

Closing Arguments - At the end of the hearing, the PERC staff member will ask the parties for their preferences about due dates for written briefs(see below). PERC does not encourage oral arguments made on-the-record at a hearing, because parties usually benefit from clarity when they take the time to organize and write out their arguments away from the "heat of battle" at a hearing.

Closing the Hearing - The PERC staff member will announce, "The hearing is closed." Any motion to reopen the hearing must be filed with PERC (and served on other parties) before a decision is issued, and reopening will be allowed ONLY if the requesting party shows it has newly-discovered evidence that could not have been presented at the hearing.

Written Arguments - Written arguments (briefs) must be filed with PERC (and served on other parties) by the due date established by the PERC staff member. PERC staff members may allow a second round of (rebuttal) briefs on a case-by-case basis. If a party wants to delay a due date, it must follow the "continuance" procedure described above.

• The format of a written argument is much less important than its content.
• Focus on matters that remain in dispute after the hearing - don't waste your time or the time of the PERC staff member on matters that are not in dispute.
• Base your arguments on the testimony and exhibits actually admitted in evidence at the hearing. DO NOT add facts that are not in evidence.
• Use state laws (RCWs), state rules (WACs), language of the applicable collective bargaining agreement, and previous PERC decisions (precedents) to support your position.

Content of Decisions - The decision in each case is based on the evidence presented at the hearing in that case, the parties' arguments, and legal research performed by the PERC staff.

How are Decisions Communicated? - A written decision is mailed to all parties and representatives listed on the PERC docket record for the case. The content or result of a decision cannot be disclosed before the decision is issued.

When Should I Expect a Decision? - PERC staff members try to issue all decisions in a timely manner, using the following time targets:

• In "C", "E", "N", and "U" cases, PERC staff members strive to issue decisions within 90 days after the transcript and all written arguments have been filed.
• In "F" cases, state laws contain specific timelines, but parties often agree to modify those time limitations.
• In "A" cases, time limitations in the parties' collective bargaining agreement may be subject to delay if the PERC staff member has high priority assignments, however, PERC will endeavor to issue arbitration awards as soon as possible.