California Code of Regulations › Title 8 - Industrial Relations › Division 2 - Agricultural Labor Relations Board › Chapter 3 - Procedure Under Chapter 5 of the Act for the Determination of Questions Concerning Representation of Employees › Section 20370 - Investigative Hearings - Types of Hearings and Disqualification of IHE's

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) The executive
				secretary shall appoint an investigative hearing examiner to conduct an
				investigative hearing on objections filed pursuant to section
				20365, on challenges pursuant to
				section 20363, on extensions of
				certifications pursuant to section
				20382, on petitions seeking
				clarification of a bargaining unit or amendment of a certification pursuant to
				section 20385, on petitions to revoke
				certifications on alleged violations of access rights pursuant to section
				20900, or on any other
				representation matter. No person who is an official or an employee of a
				regional office shall be appointed to act as an investigative hearing examiner.
				An investigative hearing examiner is subject to disqualification on the same
				basis and in the same manner as provided in section
				20263 for administrative law judges
				in unfair labor practice proceedings. If the investigative hearing examiner
				assigned to a hearing becomes unavailable for any reason at any time between
				the beginning of the hearing and the issuance of the decision, the executive
				secretary may designate another investigative hearing examiner for such
				purpose.
Investigative Hearings -- Powers of IHE's
(b) The parties shall have the right to
				participate in such investigative hearing as set forth in Labor Code sections
				1151,
				1151.2, and
				1151.3. Any
				party shall have the right to appear at such investigative hearing in person,
				by counsel, or by other representative, to call, examine, and cross-examine
				witnesses and to introduce into the record documentary evidence, except that
				participation of any party shall be limited to the extent permitted by the
				investigative hearing examiner, and provided further, that documentary evidence
				shall be submitted in duplicate. The investigative hearing examiner shall have
				the duty to inquire fully into all matters in issue and to obtain a full and
				complete record. In furtherance of this obligation, the investigative hearing
				examiner shall have all of the powers that an administrative law judge has in
				an unfair labor practice proceeding as enumerated in section
				20262, where applicable.
Investigative Hearings -- Necessary Parties
(c) The necessary parties to an investigative
				hearing are the petitioner, the employer, and any other labor organization
				which has intervened pursuant to section
				20325. The regional director or a
				designated representative of the regional director may participate in an
				investigative hearing to the extent necessary to ensure that the evidentiary
				record is fully developed and that the basis for the Board's action is fully
				substantiated.
Investigative Hearings -- Adverse Inference
(d) The hearing need not be conducted
				according to technical rules relating to evidence and witnesses. Any relevant
				evidence shall be admitted, if it is the sort of evidence upon which
				responsible persons are accustomed to rely in the conduct of serious affairs,
				regardless of the existence of any common law or statutory rule which might
				make improper the admission of such evidence over objection in civil actions.
				Hearsay evidence may be used for the purpose of supplementing or explaining
				other evidence, but shall not be sufficient in itself to support a finding
				unless it would be admissible in civil actions. The rules of privilege shall be
				effective to the extent that they are otherwise required by statute to be
				recognized at the hearing. Irrelevant and unduly repetitious evidence shall be
				excluded. The refusal of a witness at a hearing to answer any question which
				has been ruled to be proper may be grounds for striking the portions of the
				testimony of such witness on related matters and/or for making such inferences
				as may be proper under the circumstances, unless the refusal to answer is
				privileged.
Investigative Hearings -- Time of Hearings and Continuance
				  During Hearing
(e) Hearings
				may be held any time that the investigative hearing examiner considers
				appropriate. Hearings shall continue from day to day until completed or
				recessed. Once a hearing has commenced, continuances or recesses will not be
				granted except in extraordinary circumstances, and then only by order of the
				executive secretary or, for recesses of two working days or less, by order of
				the investigative hearing examiner.
(f) The hearing shall be recorded by an
				appropriate means to be designated by the executive secretary. In any case
				where the investigative hearing examiner is directed to make a tape recording
				of the hearing, copies of the tape recording shall be made available to any
				party at cost. Unless otherwise directed by the executive secretary, the tape
				recording will not be transcribed.
(g) After any party to a representation
				hearing has completed the presentation of its evidence, any other party,
				without waiving its right to offer evidence not yet produced in support of its
				own position, may move for decision in its favor in whole or in part in the
				same manner and subject to the same inferences, standard, and review as
				provided in section
				20243 for motions for decision in
				unfair labor practice cases.
(h) At
				the close of the taking of testimony, any party may request a reasonable period
				for closing oral argument on the record. Post-hearing briefs shall not be filed
				unless the investigative hearing examiner determines that, because of the
				complexity of the issues, further briefs are required as an aid to decision,
				and then only upon such terms as the investigative hearing examiner shall
				direct, but shall, in any event, conform to the limitations contained in
				Section 20370(j)(2).
(i) Within a reasonable time after the close
				of taking of testimony or within a specific time as may be determined by the
				executive secretary, the investigative hearing examiner shall issue an initial
				decision including findings of fact, conclusions of law, a statement of reasons
				in support of the conclusions, and a recommended disposition of the case. In
				the absence of timely exceptions, as set forth in subdivision (j), such
				decision shall become the decision of the Board. Unless expressly adopted by
				the Board, the statement of reasons in support of the decision shall have no
				effect as precedent.
(j) Within 10
				days after service of the investigative hearing examiner's decision, or within
				such other period as the executive secretary may direct, a party may file with
				the executive secretary the exceptions and a brief in support of the exceptions
				to the investigative hearing examiner's decision accompanied by proof of
				service on all parties pursuant to section
				20166.
(1) The brief in support of the exceptions
				shall state the grounds for each exception, shall identify by page number that
				part of the investigative hearing examiner's decision to which exception is
				taken, and shall cite to the portions of the record which support the
				exception. If the record of the hearing consists of a tape recording made by
				the investigative hearing examiner, exceptions to findings of fact shall be
				accompanied by a transcription of those portions of the tape recording relied
				upon in addition to the references to the location number on the tape where the
				cited portions occur.
(2) A brief
				in support of exceptions which exceeds 20 pages shall contain a table of
				authorities cited. This brief shall not exceed 50 pages in length, except that
				upon prior request the executive secretary may permit longer briefs where
				necessary to address factual or legal issues. If post-hearing briefs are
				incorporated by reference, the portions incorporated shall be identified by
				page number and shall count as part of the 50-page limitation on the exceptions
				brief. Unless permission to file a brief exceeding the page limitations
				specified above has been obtained from the executive secretary in advance, only
				the first 50 pages of briefs in support of the exceptions shall be accepted and
				filed. Anything in excess of 50 pages will not be considered by the
				Board.
(3) Within seven days
				following the filing of exceptions, or within such other period as the
				executive secretary may direct, a party opposing the exceptions may file a
				brief in answer to the exceptions, not to exceed 50 pages in length. If
				post-hearing briefs are incorporated by reference, the portions incorporated
				shall be identified by page number and shall count as part of the 50-page
				limitation on the answering brief. The answering brief shall be accompanied by
				a proof of service on all other parties as required by section
				20166. Unless permission to file a
				brief exceeding the page limitations specified above has been obtained from the
				executive secretary in advance, only the first 50 pages of briefs in answer to
				the exceptions shall be accepted and filed. Anything in excess of 50 pages will
				not be considered by the Board.