Nevertheless,
PERC staff members are still obligated to respect long-standing privileges and litigation
traditions, and must be prepared to respond to any evidence objections made by the
parties at a hearing.
CHAPTER 16
EVIDENCE STANDARDS
FOR ARBITRATION
AND FACT-FINDING
PROCEEDINGS
(Rules: Chapter 10-08 WAC)
(Rules: Chapter 391-08 WAC)
(Rules: Chapters 391-55 and 391-65 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 16
EVIDENCE STANDARDS FOR ARBITRATION
AND FACT-FINDING PROCEEDINGS
16.1 INTRODUCTION
Hearings before Public Employment Relations Commission (PERC) staff members in fact-finding and interest arbitration cases covered in Chapter 14 as well as in grievance
arbitration cases covered in Chapter 15 are excluded from the coverage of the state
Administrative Procedure Act and from the “Model Rules” for administrative adjudication
adopted by the Chief Administrative Law Judge of the State of Washington.
Nevertheless,
PERC staff members are still obligated to respect long-standing privileges and litigation
traditions, and must be prepared to respond to any evidence objections made by the
parties at a hearing.
Fact-finders in proceedings under Chapter 41.59 or 41.80 RCW, neutral chairpersons in interest arbitration proceedings under Chapter 41.56 RCW, and arbitrators in grievance arbitration proceedings must personally hear all testimony given at the hearing.
16.2 WITNESSES
Litigation tradition requires that all witnesses make an oath or affirmation prior to the commencement of their testimony, and that they be clearly identified for the record.
♦ 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?
PERC staff members have authority to administer the oath or affirmation. If the parties have hired a court reporter, the reporter will usually be willing to administer the oath/affirmation to the witnesses, on request. (The time of the PERC staff member may be better spent sizing up the witness and tending to unfinished notes or other matters which might otherwise hold up the hearing.)
♦ Ask each witness to sign the appearance sheet. Tell a reluctant witness the information is needed to spell names correctly in the written decision.
16.3 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 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.
♦ Statutes authorize subpoenas for fact-finding under Chapters 41.59 and 41.80 RCW, and for interest arbitration under Chapter 41.56 RCW, subject to the PERC rules.
♦ Chapters 41.76 and 41.80 RCW are the only Washington statutes that expressly authorize arbitrators to issue subpoenas for grievance arbitration proceedings.
16.4 INTERPRETERS
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.
♦ If such a person is a witness in a "A" or "F" or "I" case, WAC 391-08-315(2) requires an interpreter be provided to assist the witness throughout the hearing.
♦ Different from proceedings under the APA, WAC 391-08-315(2) requires the party that requests participation of the witness to pay for the interpreter.
♦ The PERC rule embraces the Model Rule, which 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 pro-ceedings 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.
♦ Also by way of comparison, the Model Rules require 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 following form of interpreter’s oath is recommended for arbitration and fact-finding proceedings conducted by PERC staff members:
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?
16.5 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 PERC from imposing conditions on attendance
at public meetings,
you can properly tell a reluctant witness or interpreter that you or
the court reporter needs the information to spell names correctly in case documents.)
♦ 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 person conducting the hearing) interject to ask the witness:
Please give your name and address for the record.
16.6 ADMISSIBILITY OF EVIDENCE
The rules of evidence used in courts are not controlling in “A”, “F” and “I” cases. This was even well-established before early editions of the widely-cited treatise on the subject:
It is widely agreed that unless expressly required by the parties in submitting their case to an arbitrator, strict observance of the legal rules of evidence is not necessary. As stated by one federal court:
In an arbitration the parties have submitted the matter to persons whose judgment they trust, and it is for the arbitrators to determine the weight and credibility of evidence presented to them without restrictions as to the rules of admissibility which would apply in a court of law. [Footnote cites Instrument Workers v. Minneapolis-Honeywell Co., 54 LRRM 2660 (U.S. Dist. Ct., E.D. Pa, 1963)]
Another federal court, in reviewing an arbitration award within the Court’s jurisdiction under Section 301(a) of the Labor-Management Relations Act, stated that “It is well established that rules of evidence as applied in court proceedings do not prevail in arbitration hearings. [Footnote cites Harvey Aluminum v. Steelworkers, 64 LRRM 2580 (U.S. Dist. Ct. C.D. Ca, 1967)]
Elkouri and Elkouri, How Arbitration Works (3rd Edition, BNA Books, 1973).
By way of comparison, the state APA also allows a looser evidence standard in adjudicative proceedings (i.e., “C”, “E”, “N” and “U” hearings before PERC) than is used in the courts. The APA rule is as follows:
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 Model Rules also codify some long-standing litigation traditions in WAC 10-08-140, as follows:
WAC 10-08-140 ADJUDICATIVE PROCEEDINGS--EVIDENCE. . . .
. . . .
(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, 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.
16.7 EXAMINATION OF WITNESSES
Examination of each witness normally proceeds in the sequence customarily used in the courts.
► Direct examination by the party 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 parties must present their own evidence and arguments. PERC staff members conducting these proceedings do not have the affirmative obligation to obtain a complete record that is imposed on the Hearing Officer in the “investigatory” setting of representation and unit clarification proceedings, and so usually limit questioning of witnesses except for purposes of clarification to reduce or avoid confusion. Even then:
► Avoid restating what you hear - A PERC staff member 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.
16.8 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.
16.8.1 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 person conducting the hearing of the opportunity to observe the visible demeanor of the witness while testifying. The PERC staff member is necessarily limited to evaluating inflections of voice.
♦ Even under the state APA, telephonic testimony is only authorized 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 PERC staff members are NOT required to grant these requests.
♦ Due process and fairness considerations support notice and preparation in advance of taking testimony by telephone.
► Will exhibits the witness will need be provided to the witness in advance?
► Will there be an objection to taking some or all of the testimony by telephone?
► Will allowing telephonic testimony serve the interests of justice, or merely serve the interests of a witness who could be brought in under a subpoena?
16.8.2 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.
□Obtain the telephone number where you will call the telephonic witness, preferably in a private office where the witness will be alone with the door closed..
□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 notice of the telephonic hearing has been provided to all parties.
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 (“A” or “F” or “I”).
□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:
□ (If applicable) 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 those present in the hearing room (and the Court Reporter, if any) 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) efficiency and dignity, PERC staff members can reduce or avoid the inherent potential for procedural questions and concerns related to telephonic testimony.
16.9 SITE PHOTOGRAPHS, DESCRIPTIONS, AND TOURS
Parties sometimes feel a need for a fact-finder, neutral chairperson or arbitrator to view one or more documents depicting a situation, or even to view a site, as part of the evidence in a case.
♦ Court reporters and tape recordings cannot work on the move, and only take down the words said by somebody else, so somebody needs to describe what was seen.
♦ The fact-finder, neutral chairperson or arbitrator must take steps to preserve the observations made.
16.9.1 Site Photographs
Photographs taken in advance of a hearing may be admitted as exhibits, but the PERC staff member 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.”)
16.9.2 Site Descriptions
Maps or floorplans of relevant areas may be admitted as exhibits, but the PERC staff member 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 are where the disputed employee works.”)
16.9.3 Site Tours
If the parties agree to a site tour (or one party provides persuasive reasons to overrule objections by another party), the PERC staff member must accompany the parties’ advocates on the site tour and take notes on what he or she observed. Upon return to the hearing room, put information about the site tour on-the-record.
♦ 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 PERC staff member) 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 are where the disputed employee works.”)
♦ The PERC staff member can make a statement for the record, based on his / her notes.
► Fundamental fairness dictates that you tell the parties what you 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.
16.10 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 one of the parties announces an objection, 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 16.11, 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 the PERC staff member 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: A PERC staff member 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 PERC staff member 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.
► 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 witnesses called by another party.
♦ Hearsay is ONLY objectionable under the court rules of evidence 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.
16.11 PRIVILEGED AND INCOMPETENT EVIDENCE
PERC staff members acting as fact-finders, neutral chairpersons or arbitrators should honor state statutes, the Washington Rules of Evidence, PERC rules, and/or PERC precedents that 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): WAC 391-08-040 prohibits testimony in connection with any case which was pending before PERC during the time the person was associated with PERC.
♦ Persons currently associated with PERC (including Commissioners and all staff): WAC 391-08-310(2) goes beyond WAC 391-08-040, and even prohibits issuance or giving effect to a subpoena purporting to compel 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 representation or unit determination issues lack 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.