PROVISIONS FOR FORMAL PROCEEDINGS
§ 95.91. Hearings.
(a) Hearings shall be open to the public unless otherwise ordered by the Board.
(b) Hearings shall be conducted by a hearing examiner designated by the Board. During the course of the proceeding, the Board may designate a new hearing examiner to take the place of the hearing examiner previously designated to conduct the hearing.
(c) The transcript of the testimony in hearings will become part of the record if no objections to the transcript are filed with the Board within 15 days after its deposit in the United States mail. The postmark shall be conclusive evidence of the date of mailing. Objections shall specify the matter objected to and the relief sought. The Board may order a hearing on the objections. The Board will make an order that may be necessary to conform the transcript to the occurrences at the hearing; and the conformed transcript will then be certified by the official stenographer, will be filed of record in the case, will be treated as official and part of the record for purposes of review upon appeal, and will be considered as prima facie accurate whenever thereafter offered in evidence.
(d) Motions made during a hearing and objections with respect to the conduct of a hearing, including objections to the introduction of evidence, shall be stated orally and shall be included in the stenographic report of the hearing. Final argument shall not be included in the stenographic report unless the hearing examiner shall so direct.
(e) If a motion to dismiss or preliminary objections challenging the jurisdiction of the Board are advanced, the hearing may be limited to testimony and evidence relating thereto prior to proceeding with testimony on the merits.
(f) The hearing examiner shall have full authority to control the conduct and procedure of the hearing and the record thereof, to admit or exclude testimony or other evidence, and to rule upon motions and objections subject to review by the Board.
(g) The hearing examiner shall see that a full inquiry is made into the matters in issue and to obtain a complete record of facts necessary for a fair determination of the issues by the Board.
(h) The hearing examiner may do any of the following:
(1) Call and examine witnesses.
(2) Direct the production of papers or other matter present in the hearing room.
(3) Exclude irrelevant or immaterial testimony.
(4) Introduce documentary or other evidence.
(5) Take action during the progress of a hearing which will properly effectuate the policy of the act.
(i) At a hearing, parties shall have the right to call, examine and cross-examine witnesses and to introduce documentary or other evidence subject to the rulings of the hearing examiner.
(j) Concerning briefs and oral arguments the hearing examiner shall set the time required for the filing of briefs. A party filing a brief shall file the original with the hearing examiner and four copies with the Board, concurrently serving one copy on each other party to the hearing. Briefs shall be accompanied by a certificate of service.
(k) Proposed decision or recommendation shall be issued as follows:
(1) Unfair practice and unit clarification proceedings. After the close of the formal hearing, if any, the hearing examiner or Board agent conducting the hearing shall issue a proposed decision or may submit the record of the case to the Board for decision under instructions, if any, from the Board. The proposed decision shall be in writing and shall contain a statement of the case, findings of fact, conclusions of law and the order. The hearing examiner or Board agent shall cause a copy of the proposed decision to be served upon the parties.
(2) Representation proceedings. Proposed decision or recommendation shall be issued as follows for representation proceedings:
(i) Hearing examiner recommendations. After the close of the formal hearing in representation proceedings, the hearing examiner or Board agent conducting the hearing shall submit his recommendations and record to the Board Representative of the Board designated for the purpose of review of representation cases. The Board Representative will be designated by the Board at a regular meeting of the Board and the designation will be recorded in the minutes of the Board meeting.
(ii) Board Representative. Upon receipt of the recommendation and record of the hearing examiner the Board Representative shall adopt, reject or modify the recommendation and shall be authorized to issue and cause to be served on the parties an order directing an election or other appropriate action. A decision or order of the Board Representative shall set forth the findings of fact, conclusions of law, discussion and order or direction and shall be subject only to the filing of a request for review with the Board.
(iii) Request for review. Prior to the conduct of a representation election, an aggrieved party may file a written request for review with the Board accompanied by a statement of service. A request for review will be granted only where the order or direction of the Board Representative is clearly erroneous and prejudicially affects the rights of the party seeking review. The filing of a request for review with the Board will not operate, unless otherwise ordered by the Board, as a stay of any order or direction of the Board Representative.
(A) A request for review must be a self-contained document enabling the Board to rule on the basis of its contents.
(B) A party may file with the Board a timely statement in opposition to a request for review prior to the conduct of a representation election accompanied by a statement of service.
(l) Subsection (b) supplements 1 Pa. Code § 35.185 (relating to designation of presiding officers); subsections (f) and (h) supplement 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers); and subsection (i) supplements 1 Pa. Code § 35.126 (relating to presentation by the parties). Subsection (c) supersedes 1 Pa. Code § § 35.131 and 35.132 (relating to recording of proceedings; and transcript corrections); subsection (d) supersedes 1 Pa. Code § § 35.131 and 35.178 (relating to recording of proceedings; and presentation of motions); subsection (j) supersedes 1 Pa. Code § 35.221 (relating to briefs and oral argument in absence of proposed report); and subsection (k) supersedes 1 Pa. Code § 35.202 (relating to proceedings in which proposed reports are prepared).
Source The provisions of this § 95.91 adopted October 23, 1970, effective October 24, 1970, 1 Pa.B. 419; amended September 10, 1971, effective September 11, 1971, 1 Pa.B. 1805; amended April 4, 1980, effective April 5, 1980, effective only for hearings conducted after April 5, 1980, 10 Pa.B. 1435. Immediately preceding text appears at serial page (9398).
Notes of Decisions Bifurcation
The city has an adequate administrative remedy through the Labor Relations Board to determine whether the city’s attorneys-employes could form a bargaining unit under the Public Employee Relations Act so that the Commonwealth Court lacked jurisdiction over the city’s petition for review. Philadelphia ex rel. Harris v. Labor Relations Board, 641 A.2d 709 (Pa. Cmwlth. 1994).
A hearing examiner’s decision to bifurcate a trial and limit testimony to the issue of timeliness of the filing of the petition was proper, since the Board’s regulations clearly allow for bifurcation of issues where preliminary jurisdiction questions are raised, and also since the petitioner was not prejudiced by the bifurcation. Thomas v. Labor Relations Board, 485 A.2d 903 (Pa. Cmwlth. 1985).
Cross References This section cited in 34 Pa. Code § 93.31 (relating to hearings); 34 Pa. Code § 95.81 (relating to authority of Secretary and Executive Director); 34 Pa. Code § 95.96 (relating to exceptions); and 34 Pa. Code § 95.98 (relating to decisions of the Board).
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