UNFAIR LABOR PRACTICE - HEARINGS
What to Expect at a PERC Hearing
A hearing is a legal process in which state law gives an opportunity for parties to present facts to an examiner. The examiner is neutral and acts as a decision maker. The examiner follows the Administrative Procedure Act, chapter 34.05 RCW. Parties must present evidence to the examiner through testimony of witnesses and exhibits (documents) regarding the alleged violations.
Parties will each have an opportunity to examine and cross-examine (ask questions to) all witnesses. At the end of the hearing the examiner will schedule the filing of written closing briefs. A written closing brief is a written statement that explains what facts the party believes were proved at the hearing and the claims/arguments being made by that party, as well as responses to the claims/arguments made by the opposing party.
Hiring an Attorney
PERC staff are strictly neutral and can only answer questions about rules and procedures and cannot provide legal advice. You are not required to have an attorney; however, you may choose to have one represent you at your own cost.
You may represent yourself or choose to have a friend or a family member represent you. If you choose to represent yourself, it is recommended that you study the applicable laws and rules and review your claims and evidence. You can search PERC decisions here or Washington appellate court decisions here.
The hearing will be recorded by a court reporter. A court reporter is hired to transcribe all PERC hearings. Parties may purchase the transcript directly from the court reporter. The transcript is available 15-30 days after the hearing, depending on the length of the hearing.
Parties must present evidence to the examiner through testimony of witnesses and exhibits (documents) regarding the alleged violations. You will need four copies of each exhibit at the hearing: one for yourself, the examiner, the court reporter, and the opposing counsel.
Testimony of Witnesses
Once a person is under oath, they will tell the examiner their side of the story by answering questions. If a party is represented, their representative may ask questions.
The examiner will decide who will talk first and in what order. They will also limit unnecessary testimony.
Each party will have an opportunity to examine and cross-examine (ask questions to) all witnesses. After a person tells their story through questioning, the other party is allowed to cross-examine. Cross-examination is asking questions of a witness about their prior testimony.
When it is your turn to ask questions (cross-examine),
- ask questions of the witness based on their testimony.
You can not:
- give statements about what happened.
- give more information about your side of the story.
- tell the examiner that you disagree with the witness’s answer.
Exhibits are also evidence. An exhibit can be a document, picture, video, or something else besides testimony that is used to prove a point. The examiner will decide whether an exhibit will be considered in deciding the case.
Exhibits may be offered at the beginning of the hearing or during. Once an exhibit is offered, the examiner asks if there are any objections to the exhibit, and the other party may agree or object to the exhibit. The examiner will decide whether the exhibit will be admitted into evidence.
Exhibits should be numbered UN-1, UN-2, etc. for the union and ER-1, ER-2, etc. for the employer. If there is more than one union in a case, the parties and the examiner will determine the designation prior to hearing. If there is an individual litigant in a case, that individual's exhibits should be designated in a manner reflecting the individual's status in the case, such as C for complainant. The examiner will make clear the designation prior to the hearing. If you have a matter scheduled for hearing, you should consult with the assigned examiner to confirm how exhibits should be numbered.
- You can object when the other party is questioning you or a witness. You object by saying “I object” and then explaining your objection. You can object to the question or to the answer. Objections are most commonly made when the other party asks questions in the wrong way or when testimony is not related to the case. You cannot object just because you disagree with what the witness says.
- At the beginning of or during the hearing, the examiner will discuss the exhibits and ask if you object to any exhibits. This is a way of asking you if it is okay for the examiner to consider the exhibit when making the decision. The examiner will listen and respond to your objection with instructions. You cannot object to an exhibit just because you disagree with what it says.
The examiner will listen and respond to your objection.
At the end of the hearing the examiner will schedule the filing of written closing briefs. A written closing brief is a written statement that explains what facts the party believes were proved at the hearing and the claims/arguments being made by that party, as well as responses to the claims/arguments made by the opposing party.
Decision or Appeal
After the parties have submitted written closing briefs, a decision is generally issued 90 days after the closing briefs are filed. The decision is mailed/emailed to the parties on the case and posted on the decisions page of the PERC website. You can appeal the decision of the examiner to the Commission.
The following timeliness standards apply to the appealing and responding party, for more information see WAC 391-45-350 .
Notice of Appeal
A notice of appeal provides notice that a party is appealing a decision and identifies the specific number of finding(s) of fact, conclusion(s) of law, or order being appealed. A notice of appeal is due 20 days from the date the decision is issued. That deadline cannot be extended. A Notice of appeal must include the specific number of finding of fact, conclusions of law, or order being appealed. Give detailed information regarding the specific finding(s) appealed. After the notice of appeal has been filed, the parties will be able to file appeal briefs.
An appeal brief explains what is being appealed and why, and provides legal arguments as to why the issue(s) should be overturned by the Commission. The appeal brief is due 14 days after the notice of appeal is filed. That deadline can be extended by request to the Executive Director at email@example.com. The brief should be 12-point font, double-spaced, and no more than 25 pages.
The response brief is due 14 days after the appeal brief is served. That deadline can be extended by request to the Executive Director at firstname.lastname@example.org. The brief should be 12-point font, double-spaced, and no more than 25 pages.
All appeal documents must comply with the service requirements at WAC 391-08-120 .