CHAPTER 13

EVIDENCE STANDARDS

FOR ADVERSARY

PROCEEDINGS

(Rules: Chapter 10-08 WAC)

(Rules: Chapter 391-08 WAC)

(Rules: Chapters 391-45 and 391-95 WAC)

The PERC Staff Manual was issued by the former Executive Director in October 2006 appointed by the Public Employment Relations Commission under RCW 41.58.015(2) and (3), to provide guidance and direction to PERC staff members. The staff manual is subject to constant revision and is to be regarded as a guide. Cases may be processed in a different manner and in the event of any conflict between this PERC Staff Manual and any statute, any Commission rule, or any Commission precedent, the statute, rule or precedent shall prevail.

CHAPTER 13

EVIDENCE STANDARDS FOR

ADVERSARY PROCEEDINGS

13.1   INTRODUCTION

Hearings before the Public Employment Relations Commission (PERC) in unfair labor practice cases (Chapter 10) and nonassociation cases (Chapter 11) are adjudicative proceedings regulated by the state Administrative Procedure Act, Chapter 34.05 RCW (APA). The Chief Administrative Law Judge of the State of Washington has adopted Chapter 10-08 WAC as the "Model Rules" for adjudicative proceedings, and PERC has adopted additional procedural requirements in Chapters 391-08, 391-45, and 391-95 WAC.

The Examiner in a unfair labor practice case or nonassociation case must personally hear all testimony given at the hearing.

13.2   WITNESSES

All witnesses must make an oath or affirmation before they give their testimony, and they must be clearly identified for the record.

♦      Testimony under oath or affirmation is required by WAC 10-08-160(1), which provides:

WAC 10-08-160  ADJUDICATIVE PROCEEDINGS--TESTIMONY UNDER OATH OR AFFIRMATION. (1) Every person called as a witness in a hearing shall swear or affirm that the testimony he or she is about to give in the hearing shall be the truth according to the provisions of RCW 5.28.020 through 5.28.060. If the witness is testifying from outside the jurisdiction, the presiding officer may require the witness to agree to be bound by the laws of the state of Washington for purposes of the oath or affirmation.

♦      The customary form of oath is:

Do you solemnly swear or affirm that the testimony which you give in this hearing will be the truth, the whole truth and nothing but the truth?

♦      The Examiner has authority to administer the oath or affirmation.

♦      Court reporters hired by PERC will, upon request, administer the oath/affirmation to the witnesses. (The Examiner's time may be better spent sizing up the witness and tending to unfinished notes or other matters which might otherwise hold up the hearing.)

13.3   PRE-HEARING DISCOVERY IS LIMITED

PERC does not authorize or encourage use of the discovery methods commonly used in the courts. PERC policy is consistent with practice under the National Labor Relations Act.

♦      WAC 391-08-040 excludes former PERC personnel as witnesses. This expands on the exclusion in WAC 10-08-140(4), and encompasses all matters that were pending before PERC while the person was associated with PERC.

♦      WAC 391-08-300 precludes discovery other than subpoenas to produce testimony and exhibits at a PERC hearings.

♦      WAC 391-08-310 includes detailed procedures concerning subpoenas, and makes the party calling the witness responsible for service and all witness fees.

13.4   INTERPRETERS

Parties and witnesses who are impaired or have limited capacity to speak / understand the English language must be provided with the assistance of an interpreter. Under RCW 2.43.020 and WAC 10-08-045(2), a “limited-English-speaking person” includes any person involved in a legal proceeding who cannot readily speak or understand the English language.

WAC 10-08-150 is the state-wide rule that regulates the use of interpreters. That rule currently provides as follows:

WAC 10-08-150  ADJUDICATIVE PROCEEDINGS--INTERPRETERS. (1) When an impaired person as defined in chapter 2.42 RCW or a non-English-speaking person as defined in chapter 2.43 RCW is a party or witness in an adjudicative proceeding, the presiding officer shall appoint an interpreter to assist the party or witness throughout the proceeding. Appointment, qualifications, waiver, compensation, visual recording, and ethical standards of interpreters in adjudicative proceedings are governed by the provisions of chapters 2.42 and 2.43 RCW.

(2) Relatives of any participant in a proceeding and employees of the agency involved in a proceeding shall not be appointed as interpreters in the proceeding. This subsection shall not prohibit the office of administrative hearings from hiring an employee whose sole function is to interpret at administrative hearings.

(3) The presiding officer shall make a preliminary determination that an interpreter is able in the particular proceeding to interpret accurately all communication to and from the impaired or non-English-speaking person. This determination shall be based upon the testimony or stated needs of the impaired or non-English-speaking person, the interpreter's education, certifications, and experience in interpreting for contested cases or adjudicative proceedings, the interpreter's understanding of the basic vocabulary and procedure involved in the proceeding, and the interpreter's impartiality. The parties or their representatives may question the interpreter as to his or her qualifications and impartiality.

(4) If at any time during the proceeding, in the opinion of the impaired or non-English-speaking person, the presiding officer or a qualified observer, the interpreter does not provide accurate and effective communication with the impaired or non-English-speaking person, the presiding officer shall appoint another interpreter.

(5) Mode of interpretation.

(a) Interpreters for non-English-speaking persons shall use the simultaneous mode of interpretation where the presiding officer and interpreter agree that simultaneous interpretation will advance fairness and efficiency; otherwise, the consecutive mode of foreign language interpretation shall be used.

(b) Interpreters for hearing impaired persons shall use the simultaneous mode of interpretation unless an intermediary interpreter is needed. If an intermediary interpreter is needed, interpreters shall use the mode that the interpreter considers to provide the most accurate and effective communication with the hearing impaired person.

(c) When an impaired or non-English-speaking person is a party to a proceeding, the interpreter shall translate all statements made by other hearing participants. The presiding officer shall ensure that sufficient extra time is provided to permit translation and the presiding officer shall ensure that the interpreter translates the entire proceeding to the party to the extent that the party has the same opportunity to understand all statements made during the proceeding as a nonimpaired or English-speaking party listening to uninterpreted statements would have.

(6) An interpreter shall not, without the written consent of the parties to the communication, be examined as to any communication the interpreter interprets under circumstances where the communication is privileged by law. An interpreter shall not, without the written consent of the parties to the communication, be examined as to any information the interpreter obtains while interpreting pertaining to any proceeding then pending.

(7) The presiding officer shall explain to the non-English-speaking party that a written decision or order will be issued in English, and that the party may contact the interpreter for an oral translation of the decision and that the translation itself is at no cost to the party. The interpreter shall provide to the presiding officer and the party the interpreter's telephone number. The telephone number shall be attached to the decision or order mailed to the party. A copy of the decision or order shall also be mailed to the interpreter for use in translation.

(8) If the party has a right to review of the order or decision, the presiding officer shall orally inform the party during the hearing of the right and of the time limits to request review.

(9) The agency involved in the hearing shall pay interpreter fees and expenses.

If a case situation calls upon you to interpret or apply WAC 10-08-150, check to be certain that you are working from the latest version of the rule.

CAUTION: WAC 10-08-150 could be changed without action by PERC.

♦      PERC staff members have obligations if they are notified or become aware of the need for an interpreter in any “U” or “N” case.

        ►      If a person eligible for interpreter assistance is a party in a “U” or “N” case, WAC 10-08-045(1) requires that all papers issued by PERC concerning the hearing (including notices of hearing, continuance orders, letters, and dismissal orders) must either:

                •      Be written in the primary language of the party; or

                •      Include a notice in the party’s primary language, describing the significance of the paper and how the party may receive assistance in understanding and responding to the paper.

        ►      PERC must provide an interpreter to assist the party or witness throughout the hearing, and PERC must pay the fees and expenses of such interpreters under WAC 391-08-315(1).

        ►      The notice of hearing formats prescribed for unfair labor practice and nonassociation cases invite parties to contact PERC about interpreters.

        ►      A Examiner who becomes aware of a request or need for an interpreter must convey the request to the Business Manager.

♦      WAC 10-08-160 requires that interpreters make an oath or affirmation before beginning their task, as follows:

WAC 10-08-160  ADJUDICATIVE PROCEEDINGS--TESTIMONY UNDER OATH OR AFFIRMATION.

            . . . .

(2) Every interpreter shall, before beginning to interpret, take an oath that a true interpretation will be made to the person being examined of all the proceedings in a language or in a manner which the person understands, and that the interpreter will repeat the statements of the person being examined to the agency conducting the proceedings, in the English language, to the best of the interpreter's skill and judgment.

The form of interpreter’s oath recommended for use in PERC proceedings is as follows:

Do you solemnly swear or affirm that you will provide a true interpretation of questions and other statements directed to the witness being examined in this hearing, in a manner which the witness understands, and that you will provide a true translation of the statements made by the witness in the English language, to the best of your skill and judgment?

Any interpreter used by PERC should come from a firm that is under contract to the state, so this should not be a surprise to the interpreter.

13.5   INTRODUCTION OF WITNESSES

All witnesses (and any interpreters used) must be clearly identified on-the-record.

♦      Ask each witness and/or interpreter to sign the appearance sheet. (Although the Open Public Meetings Act prohibits imposing conditions on attendance at public meetings, you can properly tell a reluctant witness or interpreter that the court reporter needs the information to spell names correctly in the transcript.)

♦      The parties normally ask the witnesses they call to identify themselves for the record. If the party calling a witness fails to do so (or if you are calling a witness in your capacity as the Examiner) interject to ask the witness:

Please give your name and address for the record.

13.6   ADMISSIBILITY OF EVIDENCE

The rules of evidence used in the courts are not controlling in adjudicative proceedings before PERC. The state APA provides:

RCW 34.05.452 RULES OF EVIDENCE--CROSS-EXAMINATION. (1) Evidence, including hearsay evidence, is admissible if in the judgment of the presiding officer it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The presiding officer shall exclude evidence that is excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this state. The presiding officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious.

(2) If not inconsistent with subsection (1) of this section, the presiding officer shall refer to the Washington Rules of Evidence as guidelines for evidentiary rulings.

(3) All testimony of parties and witnesses shall be made under oath or affirmation.

(4) Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.

(5) Official notice may be taken of (a) any judicially cognizable facts, (b) technical or scientific facts within the agency's specialized knowledge, and (c) codes or standards that have been adopted by an agency of the United States, of this state or another state, or by a nationally recognized organization or association. Parties shall be notified either before or during hearing, or by reference in preliminary reports or otherwise, of the material so noticed and the sources thereof, including any staff memoranda and data, and they shall be afforded an opportunity to contest the facts and material so noticed. A party proposing that official notice be taken may be required to produce a copy of the material to be noticed.

(emphasis added). The privileges recognized by constitutions and statutes are detailed in 13.11, below.

The Model Rules expand on the APA language, and PERC has embraced WAC 10-08-140 (subject to the limitations on discovery in 13.3, above), as follows:

    WAC 10-08-140 ADJUDICATIVE PROCEEDINGS--EVIDENCE. (1) All rulings upon objections to the admissibility of evidence shall be made in accordance with the provisions of RCW 34.05.452.

(2) Where practicable, the presiding officer may order:

(a) That all documentary evidence which is to be offered during the hearing or portions of the hearing be submitted to the presiding officer and to the other parties sufficiently in advance to permit study and preparation of cross-examination and rebuttal evidence;

(b) That documentary evidence not submitted in advance as required in (a) of this subsection be not received in evidence in the absence of a clear showing that the offering party had good cause for his or her failure to produce the evidence sooner, unless it is submitted for impeachment purposes;

(c) That the authenticity of all documents submitted in advance in a proceeding in which such submission is required be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed such written objection.

(3) When portions only of a document are to be relied upon, the offering party shall identify the pertinent excerpts and state the purpose for which such materials will be offered. Only the excerpts, in the form of copies, shall be received in the record. However, the whole of the original documents, except any portions containing confidential material protected by law, shall be made available for examination and for use by all parties.

(4) No former employee of the agency shall appear, except with the permission of the agency, as an expert witness on behalf of other parties in a proceeding in which he or she previously took an active part in the investigation as a representative of the agency.

(5) The refusal of a witness to answer any question which has been ruled to be proper shall, in the discretion of the presiding officer, be ground for striking all testimony previously given by such witness on related matter.

(6) Any party bound by a stipulation or admission of record may, at any time prior to closure of the hearing, be permitted to withdraw the same in whole or in part by showing to the satisfaction of the presiding officer that such stipulation or admission was made inadvertently or under a bona fide mistake of fact contrary to the true fact and that its withdrawal at the time proposed will not unjustly prejudice the rights of other parties to the proceeding.

CAUTION: Even though the Washington Rules of Evidence are not controlling in any PERC proceeding, be mindful that they were developed over years of experience as a guide to fair play. PERC staff members must maintain basic familiarity with the rules of evidence, in order to rule on objections.

The role of Examiner requires maintaining the sometimes-delicate balance in conducting hearings in a manner that will promote the “efficient” mission given to PERC by statute. The Examiner must receive evidence that is properly offered, but is not required to receive each and every bit of evidence that may be offered.

13.7   EXAMINATION OF WITNESSES

Examination of each witness should proceed in the sequence customarily used in the courts.

♦      Direct examination by the party (or Examiner) that has called the witness.

♦      Cross-examination by each of the other parties in turn, immediately following the conclusion of the direct testimony of that witness.

♦      Re-direct examination by the party that called the witness may follow completion of the cross-examination, but is not required.

♦      Re-cross examination must be allowed following any re-direct examination.

♦      Additional rounds of direct/cross examination should only be needed in unusual circumstances.

CAUTION: Although the courts no longer strictly enforce a "cross must be within scope of the direct" policy, parties will hopefully narrow the scope of inquiry as they proceed with a witness.

♦      The Examiner in a unfair labor practice or nonassociation case has an affirmative obligation to obtain a complete record in the “investigatory” setting of those proceedings, and so may engage in more questioning of witnesses than would be done in the “adversary” context of unfair labor practice or nonassociation proceedings. Even then:

        ►      Avoid restating what you hear - A Examiner who restates things already said when interacting with witnesses or advocates on-the-record only lengthens the record, and risks injecting errors or misstatements.

        ►      Avoid interrupting the parties’ questioning of witnesses - Save up your questions on a separate pad of paper until a direct/cross or re-direct/re-cross round of questioning has been completed, and then:

                •      Omit your saved questions that have been asked by the parties’ advocates; and

                •      Maintain your impartiality (and that of the agency) by limiting your questions to topics that are directly probative to the case you are hearing.

13.8   TELECONFERENCE HEARINGS

With burgeoning technological developments that permit persons to stay in touch from remote locations, the PERC staff must be prepared to deal with increasing requests to take part or all of the testimony in a hearing by telephone.

13.8.1   Telephonic Testimony is Not Encouraged or Automatic

Any request to have the testimony of one or more witnesses taken by telephone should be evaluated against the effect on obtaining a good record.

♦      Telephonic testimony inherently deprives the Examiner of the opportunity to observe the visible demeanor of the witness while testifying. The Examiner is necessarily limited to evaluating inflections of voice.

♦      Telephonic testimony is only authorized by statute under limited circumstances:

RCW 34.05.449 PROCEDURE AT HEARING. (1) The presiding officer shall regulate the course of the proceedings, in conformity with applicable rules and the prehearing order, if any.

(2) To the extent necessary for full disclosure of all relevant facts and issues, the presiding officer shall afford to all parties the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence, except as restricted by a limited grant of intervention or by the prehearing order.

(3) In the discretion of the presiding officer, and where the rights of the parties will not be prejudiced thereby, all or part of the hearing may be conducted by telephone, television, or other electronic means. Each party in the hearing must have an opportunity to participate effectively in, to hear, and, if technically and eco-nomically feasible, to see the entire proceeding while it is taking place. . . .

(emphasis added). The implementing provision of the Model Rules reiterates the avoidance of prejudice, and adds a “good cause” standard for denying requests:

WAC 10-08-180 ADJUDICATIVE PROCEEDINGS--TELECONFERENCE HEARINGS. (1) The presiding officer may conduct all or part of the hearing by telephone, television, or other electronic means, if the rights of the parties will not be prejudiced and if each participant in the hearing has an opportunity to participate in, to hear, and, if technically and economically feasible, in the judgment of the presiding officer, to see the entire proceeding while it is taking place. However, the presiding officer shall grant the motion of any party showing good cause for having the hearing conducted in person at a rescheduled time. . . .

(emphasis added). PERC currently has no facilities or capacity for television hearings, and an Examiner is NOT required to grant these requests.

♦      Any telephone hearing requires advance notice and preparation, and cannot be done at the spur of the moment.

        ►      WAC 10-08-180(2) requires that exhibits to be used by the witness be provided to the witness in advance of the hearing.

        ►      WAC 10-08-040(1) requires that the notice of the hearing include notice that some or all of the testimony will be taken by telephone.

        ►      WAC 10-08-040 also requires that the notice of hearing be issued at least seven calendar days before the day of the hearing.

♦      Will granting a request for telephonic testimony serve the interests of justice, or merely serve the interests of a witness who could be brought in under a subpoena?

13.8.2   Checklist for Telephonic Testimony

The following checklist is adapted from a document originated by LRAM Joel Greene, with acknowledgment of his initiative in putting the original document together.

        Make All Required Arrangements Prior to the Hearing 

Rationale: Implement PERC’s “uniform” mission and head off potential procedural problems to implement PERC’s “efficient” mission.

□Ask that the telephonic witness be alone in a private office, with the door closed, throughout the testimony.

□Obtain the telephone number where you will call the telephonic witness.

□Anticipate what documents the telephonic witness will need while testifying, and deal with the parties’ advocates on how exhibits will be identified, offered, admitted, and transmitted in advance of the hearing.

□Be certain that formal notice of the telephonic hearing is provided to all parties, as required by the rules.

         Place the telephone call to the telephonic witness and put the call on a speakerphone

Rationale: Implement PERC’s “uniform” and “expert” missions by trying to replicate the situation of an on-site witness as much as possible.

□State on-the-record that the witness is being examined by telephone, and the telephone number where you have reached the witness.

□Introduce yourself to the witness and describe your role.

□Ask the witness to state his or her name and address. Record the information on the Record of Attendance Form for the hearing, with a “testimony by telephone” notation.

□Describe for the witness the location or room where the hearing is being held.

□Introduce the court reporter and explain his or her role.

□Explain the general nature of the case (“U” or “N”).

□Identify the parties to the proceeding, including the (named) employer, any   (named) union, and any (named) employee, and state which party is calling the witness.

□Ask the parties’ advocates to introduce themselves by giving their names and who they represent.

□Introduce (or ask the parties’ advocates to introduce) any other key players who are in the hearing room.

□Describe the hearing process to the witness on-the-record:

                  □       The Court Reporter will swear you in.

□The party calling you as a witness will ask questions first (direct).

□The opposing party can ask you questions (cross-examination).

□The party that called the witness may ask additional questions (re-direct).

□After re-direct, the opposing party can cross-examine further.

         □We may have additional rounds of questions.

□Ask the witness to speak loudly and directly into the telephone, so the Court Reporter and others present in the hearing room can hear clearly.

□Tell the witness to say if he or she can’t hear or understand what is being said, and then repeat or clarify as necessary.

□Tell the witness: “You are being asked to testify to the best of your ability and memory. If you can’t answer a question, please say so.”

□Instruct the witness to stop talking if one of the advocates makes an objection. Continue with: “I will make a ruling on the objection, and will tell you whether you should answer - or not answer - the question.”

□Get the witness under oath / affirmation before addressing any substantive matters.

         Verify the witness’ surroundings on-the-record

Rationale: Implement PERC’s “expert” mission by trying to replicate the situation of an on-site witness as much as possible.

□Ask the witness to describe his or her surroundings. You need to bring out details of any exceptions to the preferred “witness alone in a room with the door closed” environment:

□For witnesses who say they are in a cubicle or other open space, ask them to describe who can overhear them at their end and who they can see.

□If an attorney or other person is present with the witness, instruct the witness, “Please testify to the best of your ability without assistance from anyone.”

□If you suspect that someone is coaching a telephonic witness, interrupt to ask questions to clarify the environment and to repeat the “testify without assistance” request, as necessary.

         Proceed with the telephonic testimony

Rationale: Implement PERC’s “expert” mission by trying to replicate the situation of an on-site witness as much as possible.

□Identify yourself and ask the parties’ advocates to identify themselves the first few times they speak, so the witness can recognize their voices.

□Watch closely for more than one person speaking at a time, and interrupt to remind all participants that the Court Reporter can only record one voice at a time.

□Enforce pauses between questions and answers, so two people are not speaking at the same time.

□This tends to get worse later in testimony, as the comfort level of participants increases.

□If anyone says they could not hear or understand something that has been said, stop the proceedings and have the question, answer, or other statement repeated.

Possible criteria for assessing credibility of telephonic witness (adapted from NJC)

□Listen for audible coaching at the witness end of the telephone call.

□Long pauses by a telephonic witness is a basis to question credibility, but may also suggest coaching at the witness end of the call.

□Evasiveness?

□Anger?

□Hemming and hawing?

□Repeating questions just asked?

□Answering questions with questions?

□Changes of tone of voice (e.g., starts out calm, but becomes agitated)?

□Obvious fabrication (e.g., self-contradictions, improbable answers)?

□Inconsistency (e.g., answering similar questions different ways)?

         Closing the call when testimony is concluded

Rationale: Implement PERC’s “efficient” mission.

□Take the relatively unusual step of asking the parties’ advocates if they are prepared to excuse the witness. If anyone has reservations, ask the witness whether and how he or she could be reached for further testimony, if needed.

□Thank the witness and end the telephone call.

□State on-the-record that the telephonic examination has ended.

By ensuring uniform (and strict) compliance with the statute and rules, together with efficiency and dignity, PERC staff members can reduce or avoid the inherent potential for procedural questions and concerns related to telephonic testimony.

13.9   SITE PHOTOGRAPHS, DESCRIPTIONS, AND TOURS

Parties sometimes feel a need for the Examiner to view one or more documents depicting a situation, or even to view a site, as part of the evidence in a case.

♦      The Court Reporter in an APA case cannot work on the move, and only takes down the words said by somebody else, so somebody else needs to describe what was seen.

♦      The Examiner must take steps to preserve the observations made for the Executive Director to consider as part of the initial decision on the case, as well as for the Commission or a court to consider in the event of an appeal.

13.9.1   Site Photographs

Photographs taken in advance of a hearing may be admitted as exhibits, but the Examiner can properly require explanatory testimony describing where each photograph was taken and what is shown. Have the witness add annotations on the photograph (numbers or distinct characters) to mark particular items described in the testimony. (E.g., “Please mark the letter “A” on the broken window.”)

13.9.2   Site Descriptions

Maps or floorplans of relevant areas may be admitted as exhibits, but the Examiner can properly require explanatory testimony describing the source and authenticity of the document and what is shown. Have the witness add annotations on the document (numbers or distinct characters) to mark particular items described in the testimony. (E.g. “Please mark the letter “D” on the Director’s office and mark the letter “E” on the area where the disputed employee works.”)

13.9.3   Site Tours

If the parties agree to a site tour (or one party provides persuasive reasons to overrule objections by another party), the Examiner must accompany the parties’ advocates on the site tour and take notes on what he or she observed. Upon return to the hearing room, the Examiner should put information about the site tour on-the-record.

♦      The Examiner can invite the parties to provide one or more site tour participants as witnesses, and have them examined and cross-examined (by parties’ advocates and/or the Examiner) about what they observed on the tour.

        ►      The witness should be asked to describe who participated in the site tour, and to identify who (if anybody) served as the tour guide.

        ►      The witness should be asked to describe what he or she observed on the tour.

        ►      Digital photographs taken during the tour and already printed out can be admitted as exhibits with explanatory testimony about what is shown. Have the witness add annotations on the photograph (numbers or distinct characters) to mark particular items described in the testimony. (E.g., “Please mark the letter “A” on the broken window.”)

        ►      Maps or floorplans of the area toured can be admitted as exhibits with explana-tory testimony about what is shown. Have the witness add annotations on the document (numbers or distinct characters) to mark particular items described in the testimony. (E.g. “Please mark the letter “D” on the Director’s office and mark the letter “E” on the area where the disputed employee works.”)

♦      The Examiner can make a statement for the record, based on his / her notes.

        ►      Fundamental fairness dictates that the Examiner tell the parties what he or she observed while on such a visit.

        ►      Invite the parties to concur in your observations, or to call their own witnesses to testify about the site tour.

13.10   FREQUENTLY-ENCOUNTERED EVIDENCE OBJECTIONS

PERC staff members who hold hearings can expect to frequently hear certain objections, and should be prepared to deal with them. When an objection is made, stop advocates and witnesses from talking until you ask them a question or make a ruling.

♦      “Redundant” or “Cumulative” or “Asked-and-answered” - These are claims that the witness (or other witnesses) have already testified on the subject. Try to avoid excessive clutter in the record.

♦      “Immaterial” and “irrelevant” - These are claims that the answer to the question will have no effect on the outcome of the issue or case. Keep the hearing to the issues that are properly before you.

♦      “Incompetent” or “privileged” - These are claims that the witness should not be allowed to testify on the matter. See 13.7, below.

♦      “Calls for an opinion” - This objection claims that the witness is being asked about a theoretical or hypothetical situation, rather than about facts within the knowledge of the witness. Sustain these objections if aptly made, unless the witness is shown to be an expert on the subject matter.

♦      “Calls for a legal conclusion” - This objection claims that the witness is being asked to answer a question to be decided by PERC in the case. Sustain these objections if aptly made.

♦      Prepared statements - A witness is supposed to testify from his/her own knowledge, usually by a question/answer format. However, some witnesses (particularly employees appearing without legal counsel (pro se) and inexperienced advocates) will sometimes seek to read a prepared statement into the record.

CAUTION: The Examiner can properly interrupt to explain the distinction between "evidence" and "argument", or to ascertain whether the prepared statement is of the witnesses' own creation. If the person wants the prepared statement to be considered as evidence, he or she must be sworn as a witness and subject to cross-examination!

♦      Reliance on notes - If a witness refers to notes during his or her testimony, opposing parties are entitled to examine those notes immediately, and to use them in cross-examining the witness.

CAUTION: If a witness claims the notes are protected by some privilege or privacy right, the witness must forego any use of the notes. The Examiner can properly require that the notes be put away out of reach of either the witness or counsel.

♦      Leading Questions - The purpose of a hearing is to bring out the truth from people having first-hand knowledge of the facts.

CAUTION: The Commission has, from time to time, strongly criticized evidentiary records built largely on inappropriate leading questions.

        ►      Parties are not permitted to plant words in the mouths of their own witnesses, by asking questions on direct examination which suggest the answer the questioner wants to hear.

        ►      Leading questions are permitted in direct examination of a "hostile" or "adverse" witness (a person who is shown to be aligned with another party).

        ►      Leading questions are permitted on cross-examination, when one party is testing the recall and veracity of a witness called by another party.

♦      Hearsay is objectionable ONLY if it is offered to show the truth of a statement made by a third-party declarant outside of the hearing, so that its value rests upon the credibility of a person who is not available for cross-examination.

CAUTION: PERC allows hearsay evidence to come into a record, but PERC does not base decisions exclusively on hearsay evidence.

13.11 PRIVILEGED AND INCOMPETENT EVIDENCE

State statutes, the Washington Rules of Evidence, PERC rules, and/or PERC precedents exclude some testimony:

♦      Persons formerly associated with PERC (including former Commission members, former staff members, and present or former members of the Attorney General’s staff who have represented PERC): Testimony is prohibited in connection with any case which was pending before PERC during the time the person was associated with PERC. See WAC 391-08-040.

♦      Persons currently associated with PERC (including Commissioners and all staff): Testimony in PERC proceedings is prohibited, and WAC 391-08-310(2) prohibits issuance or giving effect to any subpoena purporting to compel such testimony.

♦      Confidential communications with a Mediator are inadmissible for any purpose under PERC rules and precedents. PERC has an institutional interest in preserving the effectiveness of the mediation processes established by state laws, and PERC staff members are to be pro-active to exclude evidence in some circumstances:

        ►      Quash/deny/exclude the contents of a mediation case file (any “G” or “H” or “M” case), except for public record documents limited to:

                •      The mediation request filed to initiate the case;

                •      PERCCINS printouts, such as “Notice of Case Filing” or “Record of Appearance” for the case; and

                •      Settlement agreements signed by all parties (which are only included in case files if the Mediator asks that they be scanned into CTS).

        ►      Exclude testimony about private communications between one party and a Mediator (including correspondence, things said in caucus, and things said in telephone calls) in connection with collective bargaining negotiations.

        ►      Exclude documents prepared by a party as a transcription of information conveyed by a Mediator in a private communication in mediation of collective bargaining negotiations. Mediators cannot be brought in as a witness or cross-examined about their private conversations with the parties in mediation.

♦      Some communications in mediation may be admissible. The duty to bargain in good faith remains in effect through mediation of collective bargaining negotiations, and parties are entitled to pursue unfair labor practice complaints alleging that a breach of good faith occurred in mediation. PERC staff members should overrule objections to non-confidential communications related to mediation, as follows:

        ►      Admit testimony about direct communications between parties during mediation of collective bargaining negotiations, even if the Mediator was present.

CAUTION: This avoids putting a confidentiality mantle on things parties say to one another during the mediation process.

        ►      Admit testimony about things said by the Mediator in the presence of both parties during mediation of collective bargaining negotiations.

CAUTION: Uncomfortable as it may be for a Mediator to be misquoted by a witness for one party, it will be up to the other party to contest the purported quotation with testimony of its own representatives who participated in the joint meeting. A total exclusion of testimony quoting a Mediator’s statements in joint sessions would create an artificial impediment to parties attempting to provide or defend “breach of good faith” allegations that are properly before PERC, and cannot be justified under other statutes.

        ►      Admit documents that are prepared for delivery to the other party in mediation of collective bargaining negotiations, regardless of whether the Mediator was involved in the delivery of the document.

♦      Arbitration awards purporting to decide unfair labor practice or unit determination issues are to be excluded as lacking any probative value. See Port of Seattle, Decision 3421 (PECB, 1990).

♦      Conversations had and offers made in litigation settlement negotiations are in-admissible to implement a broad public policy promoting freedom of communication in negotiations to settle litigation. Washington Rules of Evidence (ER) 408.

        ►      Documents that are merely referenced in settlement negotiations, but are not themselves settlement offers, are not excluded from evidence.

        ►      Negotiations to settle unfair labor practices are outside the mandatory subjects of collective bargaining. See Clark PUD, Decision 2045-B (PECB, 1989).

        ►      Negotiations on unit determination are outside the mandatory subjects of collective bargaining, and agreements reached by parties on unit matters are not binding on the Commission. See City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).

PERC has an institutional interest in preserving the effectiveness of both bilateral and assisted settlement negotiations, and PERC staff members are to be pro-active to exclude evidence concerning negotiations or mediation to settle litigation.

♦      Conversations with incompetent persons (who are of unsound mind, intoxicated at the time of their testimony, incapable of receiving just impressions of facts, or children too young to understand the meaning of an oath) are inadmissible under RCW 5.60.050.

♦      Conversations with a dead person are inadmissible under RCW 5.60.030, if offered to show liability or amount of liability.

♦      Conversations between husband and wife are generally inadmissible under RCW 5.60.060(1), but there are exceptions in RCW 26.20.071 for “nonsupport and family desertion” situations and in RCW 26.21.355(8) for child support situations.

♦      Conversations between an attorney and his/her client are inadmissible under RCW 5.60.060(2).

♦      Conversations in a confessional relationship between clergy and parishioner are generally inadmissible under RCW 5.60.060(3), but there are exceptions in RCW 26.44.060 for “child abuse or neglect” situations and in RCW 70.124.060 for “patient abuse or neglect” situations.

♦      Conversations between a physician and patient are generally inadmissible under RCW 5.60.060(4), but there are exceptions in RCW 26.44.060 for “child abuse or neglect” situations, in RCW 69.41.020 for “legend drug” situations, in RCW 69.50.403 for “procurement of controlled substance” situations, in RCW 70.124.060 for “patient abuse or neglect” situations, and in RCW 71.05.250 for “persons with serious mental disorders” situations.

♦      Conversations between an optometrist and patient are generally inadmissible under RCW 18.53.200, but there is an exception in RCW 26.44.060 for “child abuse or neglect” situations.

♦      Conversations between a psychologist and client are generally inadmissible under RCW 18.83.110, but there are exceptions in RCW 26.44.060 for “child abuse or neglect” situations and in RCW 70.124.060 for “patient abuse or neglect” situations.

♦      Conversations with registered nurses are generally inadmissible (with certain limited exceptions) under RCW 5.62.020.

♦      Conversations with public officers in the nature of “official confidences where the public interest would suffer in disclosure” are inadmissible under RCW 5.60.060(5).

♦      Conversations between peer support group counselors and law enforcement officers are inadmissible under RCW 5.60.060(6).

♦      Conversations between sexual assault advocates and victims are inadmissible under RCW 5.60.060(7).

♦      Conversations with Dispute Resolution Center mediators are generally inadmissible (with certain limited exceptions) under RCW 7.75.050.

♦      Conversations with certain counselors are generally inadmissible (with certain limited exceptions) under RCW 18.19.180.

♦      Conversations with interpreters in legal proceedings are regulated by RCW 2.42.160 and Washington State Court Rules: General Rules (GR) 11.1(e).

♦      Conversations with journalists are granted a qualified privilege under Senear v. Daily Journal American, 97 Wn.2d 148 (1982) and State v. Rinaldo, 102 Wn.2d 749 (1984).

♦      Conversations with public assistance recipients are generally inadmissible under RCW 74.04.060, except to state that the individual is a recipient of assistance.