Representation case hearings
are investigatory proceedings. Although
it is not required that the rules of evidence and trial procedure be strictly
followed, they serve as a guide for helping the hearing officer make a sound
record. See Section 102.66(a), Rules
and Regulations. The most common
objections to evidence are based upon relevance, materiality and hearsay. These issues and other evidentiary matters
are discussed below.20-JUL-2000 14:42 Aug 31,
Hearing officers are frequently faced with objections to oral testimony, a line of questioning, types of questions (e.g., leading questions, beyond the scope of direct examination, hearsay, etc.) and documentary evidence. When an objection is raised, the hearing officer should ask the basis for the objection. The other parties’ positions should be solicited and the hearing officer should render a clear ruling on the record (either overruled or sustained) together with a brief statement of the basis for the ruling. The hearing officer should permit the party adversely affected by the ruling to make an offer of proof, if requested (see Section 9, Offers of Proof). Any documentary evidence which is ruled inadmissible may be placed in a rejected exhibit file.
Before a witness
testifies on a subject, the record should reflect the basis for his or
her knowledge. The basis of the
witness’ knowledge goes to the competency of that witness to testify about a
particular subject. The competency of
the witness to testify goes to the weight given that testimony, not to its
admissibility. For example, if a
witness testifies about the job duties of employees in a specific
classification, the record should clearly establish how the witness obtained
the information. Does the witness
supervise these employees? Is the
witness employed in the job classification being discussed? Is the witness at the facility on a regular
basis? When, where, what time and who was present are the types of preliminary fact
questions which should be asked to establish the witness’ ability and
competency to testify. Foundation
questions also may help determine if the testimony is going to be relevant. If a witness does not have personal
knowledge of facts that are in issue, the hearing officer should ask the party
presenting that witness whether a more competent witness is available to
testify. Thus, hearing officers, while
listening to the testimony, should interrupt where it is not probative. In extreme cases, where a party insists on
further questioning of an incompetent witness, the hearing officer should ask
for an offer of proof. See Section B,
8, Offers of Proof.
Evidence is relevant if it has
a tendency to make more or less probable a fact of importance to the issue
under consideration. FRE 401. If the evidence offered is going to be of help in
deciding the matter under consideration, it should be admitted; if not, it
should be excluded. Relevancy is a factor
not only to oral testimony, but also documentary evidence.
Exhibits are not admissible unless relevant and material, even
though no party objects to their receipt.
Even if no party objects to an exhibit, the hearing officer should
inquire about the relevancy of the document and what it is intended to
show. The hearing officer can exercise
his or her discretion and determine whether the documents are material and
relevant to the issues for hearing. If
the hearing officer determines that the documents are not relevant and should
be excluded, the offering party may request that they be placed in the rejected
exhibits file. Section III, C, Rejected
Exhibits. If voluminous documents are offered, the hearing officer
should require the offering party to provide a full description and to
designate with specificity the portions being relied on. Before ruling on admissibility, the
hearing officer should request parties to analyze, preferably on the record,
any documents offered; often, thereafter, there is no need to admit the
documents. Additionally, the hearing officer should request that
the parties submit a summary in lieu of voluminous documents. Section III, B, 6, Summaries.
Materiality is related to relevance but is not identical. Materiality relates to the degree of
importance of the evidence. If the
evidence is relevant but of miniscule importance, it may be excluded.
Hearsay is a statement (oral or
written or nonverbal conduct) other than one made by the declarant while
testifying at the hearing, offered in evidence to prove the truth of the matter
asserted. This usually arises in the
context of a witness testifying about what someone else told him (e.g., ‘‘Joe
told me he never works in the warehouse’’).
If the testimony were being offered to prove the truth of what is
asserted—that Joe never works in the warehouse—this would be hearsay. The witness has no direct knowledge of the
fact and the declarant, Joe, a non-party, is not on the stand to be
cross-examined about the matter.
Similarly, a document may be excluded from evidence as hearsay if it is
intended by the person as an assertion of truth of the matter asserted in the
document.
The
following are not hearsay:
(1) Prior inconsistent
statements of the witness made under oath and now being cross-examined;
(2) Consistent prior
statements offered to rebut assertions that the statement has been fabricated;
(3) Statements which
identify a person;
(4) Admissions of a party
or its agents (if made during and relating to the agent's employment) and
admissions adopted by a party. For
example:
‘‘My supervisor told me
that Joe never works in the warehouse.’’
This is an admission by an agent of a party and is not hearsay. Such testimony can be received to prove the
truth of the matter asserted.
Most common exceptions to the hearsay rule that the hearing officer will encounter during a hearing are:
(1) Commercial
publications. FRE 803(17). For instance,
Dun and Bradstreet reports and newspapers.
(2) Public records. FRE
803 (8). For instance, Secretary of
State documents, certificates of incorporation and court records. See Section III, B, 10, Official/Judicial
Notice.
(3) Business records
and other records regularly kept (must present testimony by custodian or other
qualified witness and establish that such records are regularly kept in the
ordinary course of business and relate thereto). FRE 803 (6)
Note on Hearsay Evidence: Although there are many technical
considerations about hearsay, it is important to remember that it may be
received into evidence at an R case hearing, in the discretion of the hearing
officer. However, hearsay will probably
be accorded lesser evidentiary value than non-hearsay evidence. Northern
States Beef, 311 NLRB 1056 fn.1 (1993) (administrative agencies ordinarily do not invoke a technical rule
of exclusion but admit hearsay evidence and give it such weight as its inherent
quality justifies). The hearing officer
should encourage parties to produce other witnesses or evidence that will be
more probative of the point.
A leading question is one in
which the questioner suggests an answer to the witness by his question and
merely receives agreement. In effect,
the examiner is doing the testifying.
If the proponent of a witness is asking leading questions in significant
areas, the witness’ responses will be of little assistance. If the hearing officer finds that the
questioner is asking such questions as "do charge nurses direct the work
of CNAs," make sure that on objection or on your own initiative, the
questioner is cautioned not to use leading questions. If the record reflects answers to leading questions, it is likely
that the testimony will lack specificity and the hearing officer must obtain
specific examples on the record when a witness has answered such leading
questions.
In most preelection
circumstances, leading questions are acceptable in preliminary areas (e.g.,
‘‘You are an employee of the Jones Co.?’’).
However, try to avoid leading questions during direct examination in
critical areas (e.g., ‘‘Isn’t it correct that you have the authority to hire
and fire?’’). The value of the evidence
is enhanced if the testimony provided is not an answer to a leading
question. Leading questions on direct
examination are permissible to refresh recollection of a witness who may have
forgotten something (e.g., ‘‘Do you recall anything being said about a truck
accident?’’). During cross-examination,
leading questions are permissible.
Here are some common objections raised in preelection hearings and some suggested responses by the hearing officer:
Objection to hearsay
testimony:
(a) Objection
overruled. The testimony is not
hearsay.
(b) Objection
overruled. The testimony falls within a
hearsay exception (delineate the exception).
(c) Objection
overruled. This is not an adversarial
proceeding where credibility is in issue and the reader of the record will
accord whatever weight is appropriate to the testimony received.
Objection to documentary
evidence as irrelevant:
(a) Objection
overruled. The document is relevant and
the reader of the record will accord it whatever weight is appropriate.
(b) Objection
sustained. The document is irrelevant
and may be placed in the rejected exhibit file.
Objections to leading
questions or questions beyond scope of direct:
(a) Objection overruled. The question is a preliminary or
introductory question and thus a leading question is appropriate.
(b) Objection
sustained. Counsel is excessively
leading the witness and it appears that counsel, not the witness, is
testifying.
(c) Objection overruled. This is not an adversarial proceeding and
although the question goes beyond the scope of direct, I will allow the
question in the interest of establishing a full and complete record.
Where the contents
of a document are in issue, the document is the best evidence available and
should be produced. The hearing officer may allow oral testimony
about the contents of the document, but should demand the document be produced
and question the witness about the document.
A copy of the original document is sufficient if there is no dispute
about its authenticity or accuracy (i.e., a copy of a signed
collective-bargaining agreement is sufficient). If a document is not available, secondary evidence should be
admitted in lieu thereof.
2. Authentication (FRE 901 and 902)
If there is a question regarding the authenticity of a document, evidence should be obtained to verify that fact. The burden of proof for authenticating a document is slight. The person offering the document has that burden and usually establishes authenticity through a witness who can relate its origin (e.g., showing the letter to the witness, having him/her identify it, establishing the basis for his/her knowledge about the letter). It is common practice to use a copy of the original when there is no dispute about the document’s authenticity. This includes allowing the withdrawal of an original document so that a copy may be substituted in the record.
FRE 902 sets forth
the type of documents which are self-authenticating. These include, but are not limited to, certified copies of
domestic public documents and records, official publications, newspapers and
periodicals.
Parole evidence is oral
testimony of a witness offered to contradict or modify the terms of a written
agreement. For instance, when the terms
of a contract have been embodied in writing, like a collective bargaining
agreement, evidence of contemporaneous or prior oral agreements is not
admissible for the purpose of varying or contradicting the written
contract. However, extrinsic evidence
may be introduced for the purpose of clearing up ambiguities or ascertaining the
correct interpretation of the agreement.
Don Lee Distributors, 322 NLRB
470, 484–485 (1996).
4. Scope of Cross-examination Exceeds Direct Examination
Generally, in adversarial
proceedings, cross-examination is limited to matters raised on direct
examination and/or matters going to the witness’ credibility. This has no application in R case hearings. A cross-examiner should normally be
permitted to ask a witness questions pertaining to relevant issues raised in
the hearing, regardless of whether the subject was raised on direct
examination.
Hearing officers should avoid permitting repetitious testimony on the record. If the hearing officer is satisfied that the record will not be enhanced by redundant evidence, it should be excluded. If the hearing officer finds that a party is eliciting testimony that is unduly repetitious, the hearing officer should ask for an offer of proof regarding the testimony. In such a case, the hearing officer may seek a stipulation that further witnesses would testify similarly. See Section III, B, 8, Offers of Proof. However, in a case involving close issues of fact, evidence that is corroborative and pertains to the issue in dispute is not repetitious testimony and should not be excluded. For example, where charge nurses’ Section 2(11) status is in issue, testimony from various charge nurses regarding the scope of their duties would not be repetitious and should be admitted if each nurse works in a different area of the facility or on different shifts.
Voluminous documents are frequently reduced to
summary form for better understanding.
On request, the opposing party is given the opportunity to examine the
underlying documentation on which the summary is based. FRE
1006. The examination may have
to be done at periods of time outside normal hearing hours. The summary is typically received into
evidence with the understanding that an objection will be entertained after
examination of the underlying documents.
In rare cases involving claims of privilege and when the parties agree
to do so, the hearing officer may conduct an in camera inspection of the
documents to confirm that the summary accurately reflects the underlying
documents. If an in camera inspection
is performed, the results should be noted on the record.
Opinion evidence proffered by witnesses is usually admissible. Opinion testimony commonly deals with such
matters as time, distance, speed, etc.
These are subjects that an observant person is competent to render an
opinion about.
An offer of proof is generally a statement made by counsel or a
representative setting forth the testimony of a witness if the party called
that witness to testify. An offer of proof may be made when
the hearing officer has ruled that a party may not examine a witness or offer
exhibits on a topic to which an objection has been sustained. The party adversely affected by that ruling
may ask permission of the hearing officer to make an offer of proof to show the
content of the excluded evidence. This
enables the reviewer of the record to determine whether it was appropriate to
exclude the evidence. Normally, the
offer is made in narrative form by counsel, stating what the witness would
testify to if permitted to answer a particular line of questioning. A question and answer offer of proof should
generally not be allowed. On occasion,
a party may wish to submit a written statement as an offer of proof. The written statement should be made part of
the record as an exhibit.
No cross-examination follows
the offer of proof. If the hearing
officer determines, based on the proffer, that the testimony should be allowed,
the hearing officer can reverse his/her earlier ruling on the objection and
allow the party to elicit testimony in the area previously rejected by the
hearing officer. However, if the
hearing officer believes, based on the proffer, that his/her earlier ruling was
correct, i.e., that the testimony was properly excluded to begin with, the
hearing officer can receive the offer of proof, but state that “the evidence
proffered is rejected.” The matter is then in the record for the
reviewing authority to decide if the hearing officer’s ruling was proper.
Offers of proof can be an effective tool for controlling and streamlining a hearing. Regional Office practices vary on the use of offers of proof and the circumstances under which their use is appropriate. When a hearing officer elicits offers of proof, he/she will have a better idea of the evidence to be presented and can exclude potentially redundant or unhelpful testimony.
10. Judicial Notice/Official Notice
Judicial notice allows a court
to shortcut the taking of testimony regarding matters that are common knowledge
(e.g., Washington, D.C. is the capital of the U. S.). Official notice allows an agency to recognize its own proceedings
and decisions (e.g., relevant jurisdictional facts in another Board
transcript). Matters arising in a prior
case may or may not be dispositive of the current issue. For example, where the Board has asserted
jurisdiction previously and a party asserts that the facts have changed,
additional evidence may be required.
The hearing officer may take official notice at the request of a party
or on his/her own motion.
On occasion, a hearing officer
will be asked to take either judicial or official notice of other agency’s proceedings
or a decision from another Regional Office.
For instance, a party may seek to introduce State unemployment
compensation proceedings, which the party contends may have an impact upon an
employee’s eligibility (i.e., an independent contractor finding by a State’s
agency). The Board admits into evidence
and considers decisions in State unemployment compensation proceedings, but
does not give the decisions controlling weight. Cardiovascular Consultants
of Nevada, 323 NLRB 67, fn.2 (1997). If a
party wishes to have official or judicial notice taken of any particular
document, that party must produce a copy of the document.
When a party offers an exhibit,
the other parties may question the witness at that time concerning the
exhibit. For example: Attorney A:
“Mr./Ms. hearing officer, I offer into evidence this letter which is marked for
identification as Employer’s Exhibit 6 and which the witness has just
identified.” Hearing Officer: “Mr./Ms.
B, any objection?” Attorney B: “May I
voir dire the witness about the letter first?”
Hearing Officer: “You may.”
This interruption in the
offering party’s examination is permitted in order to clear up any questions
the opposing party has about the authenticity of the exhibit. Voir dire questioning about an exhibit
should be limited to the admissibility of the exhibit. Voir dire examination should be limited to a
few basic questions about the document being offered:
- who prepared the document?
- was the witness present when it was
prepared/signed?
- is the document kept in the normal course
of business?
- where is it kept?
- if the
document is a summary, is the summary based on documents that are kept in the
normal course of business and what is the summary based on?
Voir dire examination may also
be used to question the competency or qualifications of the witness. See Section A, 1, Foundation. The questioner should not be allowed to
question the witness in other areas until his/her normal turn to examine
arises. Thus, voir dire questioning
should not turn into cross-examination of a witness and the hearing officer
should intervene in those circumstances.
If the hearing officer decides not to accept exhibits because they are not relevant or because they are cumulative, the offering party may request that they be placed in the rejected exhibit file. This should be permitted, as it will preserve the documents upon review to the Board. This may come up in the context of an offer of proof when exhibits accompany testimony or statements of the party.
A motion for sequestration
arises when a party seeks to exclude potential witnesses from the hearing
room. The purpose is to ensure that
their testimony will not be influenced by the testimony of any other witnesses. In preelection R cases, sequestration of
witnesses is not appropriate because the proceeding is non-adversarial in
character and credibility questions are not resolved by the hearing
officer. It is, however, a decision
within the discretion of the hearing officer.
Compare Section IX, F, 6, Sequestration of Witnesses, concerning
sequestration in postelection hearings.
Parties may appeal the hearing officer’s rulings by seeking permission to file a special appeal to any adverse rulings. Section II, H, Appeals From Rulings.