CASE PROCESSING PROCEDURES; EVIDENCE – Hearsay
Single Topic for Decision 2370H
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1105.06000 – Hearsay
PERB Regulation 32176 specifically states: “Hearsay evidence is admissible, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” The essence of the hearsay rule is that the declarant is not at the tribunal and subject to cross-examination and is not available for the trier of fact to assess his or her credibility. The union was not a party to this action. Therefore, the hearsay exception for admissions by a party did not apply to testimony supplied by respondent’s witness that union representative had admitted that grievance remedy complied with the collective bargaining agreement. Respondent’s witness’s hearsay statement that union agreed that grievance remedy complied with the collective bargaining agreement is admissible not for its truth, but to demonstrate his state of mind. (Cal. Evid. Code, § 1250.) Hearsay statement is admissible to show that respondent’s witness believed he was interpreting contract article in accordance with the agreement and consistent with union’s interpretation, though it cannot be admitted to prove that union agreed with his interpretation. The ALJ’s finding that respondent did not grant grievance remedy in retaliation for charging party’s protected activity was not solely based on hearsay testimony, but also on respondent’s witness’s direct testimony, therefore the ALJ’s ruling complied with PERB Regulation 32176.