Section 20370 - Investigative Hearings - Types of Hearings and Disqualification of IHE's(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.(k) In any case the Board may direct that the record, which shall include the hearing transcript or recorded tapes and all exhibits, be transferred directly to the Board for decision, accompanied by the report from the investigative hearing examiner, if any, and by such briefs from the parties as the Board may direct. If there is no conflict in the evidence to be offered at the hearing scheduled before the investigative hearing examiner, the parties may, where appropriate, file with the Board a stipulated set of facts and their briefs, and request permission to make oral argument concerning matters of law.(l) Nothing contained in this section shall be construed as controlling a proceeding in which concurrent unfair labor practice charges under Chapters 4 and 6 of the Act have been consolidated with a representation proceeding under Chapter 5 of this Act. The procedures and rights of the parties in such a consolidated proceeding are set forth in Chapter 2 of these regulations covering unfair labor practice proceedings.(m) The provisions of section 20250 with respect to issuance, service, revocation, and enforcement of subpoenas and notices to appear or produce shall apply to hearings conducted under this section, except that applications for subpoenas made prior to the hearing pursuant to section 20250(a) shall be filed with the appropriate regional director, and petitions to revoke subpoenas or notices which are made prior to the hearing pursuant to section 20250(b) should be filed with the executive secretary who shall refer them to the investigative hearing examiner. References in section 20250 to action by the administrative law judge or by the general counsel shall, for purposes of application of that section to proceedings under this section, be deemed to refer to actions of an investigative hearing examiner or the executive secretary respectively.(n) The procedures for grants of immunity to witnesses set forth in section 20251 shall apply in representation cases, except that references in that section to action by the administrative law judge shall, for purposes of application of that section to proceedings in representation cases, be deemed a reference to actions of an investigative hearing examiner.(o) The procedures set forth in section 20246 shall apply to the taking of depositions of witnesses in representation cases, except that references in that section to action by the administrative law judge shall, for purposes of application of that section to proceedings in representation cases, be deemed to refer to actions of an investigative hearing examiner and references to the issuance of a complaint shall be deemed to refer to proceedings covered by this section.(p) The procedures set forth in section 20274 shall apply to the disclosure of statements of witnesses in representation cases, except that references in that section to action by the administrative law judge shall, for purposes of application of that section to proceedings in representation cases, be deemed to refer to actions of an investigative hearing examiner.(q) In any case in which a hearing is conducted pursuant to this section, the record on review by the Board shall consist of: the petition or petitions pursuant to Labor Code sections 1156.3(a) or 1156.7(c) or (d), or the petition or petitions filed pursuant to sections 20363, 20365, 20382, or 20385, any petitions for intervention pursuant to Labor Code section 1156.3(b), the notice and direction of election, the tally of ballots, the order setting the matter for hearing, motions, responses, rulings, the official record of the hearing, exhibits, stipulations, depositions, post-hearing briefs, the decision of the investigative hearing examiner, and the exceptions, cross-exceptions or opposition to exceptions, along with supporting briefs as provided in section 20370 (l).(r) An attorney or representative who has made a general appearance for a party in a proceeding governed by this Chapter may withdraw as follows: (i) upon a written consent executed by both the attorney or representative and by the client or the attorney or representative who will substitute into the proceedings, which shall be filed with the executive secretary; or(ii) by the order of the executive secretary or the Board, if the matter is then pending before it, upon the application of the attorney or representative, after notice from one to the other. Withdrawal or substitution shall be permitted unless to do so would result in serious prejudice to the other parties to the proceeding. Any application or consent filed pursuant to (i) or (ii) shall contain the address of the client or new attorney or representative for the service of subsequent pleadings and papers. Any application filed pursuant to (ii) shall, without compromising the confidentiality of the attorney-client relationship, if any, state in general terms the reason for the application.(s) The provisions of sections 20240 and 20241 with respect to motions, rulings and orders, and section 20242 with respect to appeals therefrom shall apply to all motions filed with the executive secretary prior to or after the close of hearing, and the procedure set forth in section 20241 shall apply to all motions filed with the investigative hearing examiner from the opening to the close of the hearing.Cal. Code Regs. Tit. 8, § 20370
1. Amendment of subsection (g) filed 3-14-78; effective thirtieth day thereafter (Register 78, No. 11).
2. New subsection (n) filed 1-26-79; effective thirtieth day thereafter (Register 79, No. 4).
3. Amendment filed 8-28-81; effective thirtieth day thereafter (Register 81, No. 35).
4. Editorial correction of lettering of subsections (l), (m), (n) and (o) (Register 81, No. 46).
5. New subsections (c), (e), (g) and (r) and repeal of former subsection (i) and renumbering; amendment of subsections (a), (b), (d), (h), (i), (k), (m), (n), (o), (p) and (q) filed 9-20-91; operative 10-21-91 (Register 92, No. 4).
6. Change without regulatory effect amending subsections (j) and (j)(3) filed 11-4-91 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 12).
7. Amendment of subsection (a) and new subsection (s) filed 10-19-95; operative 11-18-95 (Register 95, No. 42).
8. Editorial correction of subsection (e) (Register 96, No. 52).
9. Amendment of subsections (e), (h)-(j), (j)(2)-(3) and (o)-(r) and amendment of NOTE filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35). Note: Authority cited: Section 1144, Labor Code. Reference: Sections 1142, 1145, 1151, 1151.3, 1156.3 and 1156.7, Labor Code.
1. Amendment of subsection (g) filed 3-14-78; effective thirtieth day thereafter (Register 78, No. 11).
2. New subsection (n) filed 1-26-79; effective thirtieth day thereafter (Register 79, No. 4).
3. Amendment filed 8-28-81; effective thirtieth day thereafter (Register 81, No. 35).
4. Editorial correction of lettering of subsections ( l), (m), (n) and (o) (Register 81, No. 46).
5. New subsections (c), (e), (g) and (r) and repeal of former subsection (i) and renumbering; amendment of subsections (a), (b), (d), (h), (i), (k), (m), (n), (o), (p) and (q) filed 9-20-91; operative 10-21-91 (Register 92, No. 4).
6. Change without regulatory effect amending subsections (j) and (j)(3) filed 11-4-91 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 12).
7. Amendment of subsection (a) and new subsection (s) filed 10-19-95; operative 11-18-95 (Register 95, No. 42).
8. Editorial correction of subsection (e) (Register 96, No. 52).
9. Amendment of subsections (e), (h)-(j), (j)(2)-(3) and (o)-(r) and amendment of NOTE filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35).