All notes for Subtopic 1105.06000 – Hearsay

DecisionDescriptionPERC Vol.PERC IndexDate
2667P San Diego Metropolitan Transit System
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
PERB Regulation 93040, governing hearings before SMCS, does not prohibit consideration of hearsay evidence. SMCS and the Board may thus consider hearsay evidence while taking into account its hearsay nature when determining how much evidentiary weight to give it. (p. 30, fn. 21.) more or view all topics or full text.
09/06/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Under PERB Regulation 32176, a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions. But Respondent’s evidence sufficiently corroborated Charging Party’s hearsay exhibits such that Charging Party met its burden of proof to demonstrate majority status. The Board rejected Respondent’s argument that it must ignore relevant evidence merely because it was not presented in the Charging Party’s case-in-chief but by the party without the burden of proof. (p. 21, fn. 23.) more or view all topics or full text.
09/20/19
2611M County of Orange
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Factual findings may not be based solely on hearsay evidence. (PERB Reg. 32176.) Witnesses’ testimony regarding complaints they received about an employee, without more, is uncorroborated hearsay insufficient to prove the events described in the complaints actually occurred. (pp. 13, 20-21.) more or view all topics or full text.
4310112/19/18
2630E Adelanto Elementary School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
An employer may not rely solely on hearsay evidence to prove its affirmative defense under Novato Unified School District (1982) PERB Decision No. 210. more or view all topics or full text.
4314703/01/19
2514E Santa Ana Unified School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.) more or view all topics or full text.
4113202/08/17
2540M City and County of San Francisco * * * VACATED IN PART by City and County of San Francisco (2019) PERB Decision No. 2540a-M
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
A finding may be based on hearsay statements by respondent’s representatives, which are considered admissions by a party. more or view all topics or full text.
425010/20/17
2476M City of Santa Clara
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Hearsay evidence contained in declarations is insufficient, by itself, to make findings and resolve disputed material facts. (PERB Reg. 32176.) ALJ had discretion to convene a hearing to take live testimony on disputed material facts in order to inquire fully into all issues and obtain a complete record on which a decision could be rendered, even where parties had agreed to proceed on a stipulated record and declarations containing disputed factual issues. Charging party was blindsided by ALJ’s categorical refusal to consider declarations on disputed material facts where ALJ previously assigned to the case had agreed to permit the disputed issues to be decided based on declarations and rebuttal declarations rather than live testimony. The Board remanded with instructions for the ALJ to convene a hearing or otherwise determine how best to inquire fully into all issues and obtain a complete record on which a decision could be rendered. more or view all topics or full text.
4015403/10/16
2337E Palo Verde Unified School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Employee conduct asserted by a responding party to establish its affirmative defense must be proved by sufficient independent evidence, and where, as here, the independent evidence is insufficient, a proposed finding concerning the asserted conduct is properly refused. Hearsay may corroborate, but not serve in lieu of, admissible evidence. Although admissible, the role of hearsay remains supplementary. Hearsay may explain or support otherwise admissible evidence, but by itself, even in abundance, hearsay is insufficient for a finding either of the existence of an alternative, non-discriminatory reason or that a respondent acted therefor. Although admissible, hearsay testimony and documents are insufficient to support a finding. The Board requires sufficient independent, non-hearsay evidence to conclude that the challenged action would have occurred in the absence of the employee’s protected activity. more or view all topics or full text.
386910/29/13
2370H Regents of the University of California (San Francisco)
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; 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. more or view all topics or full text.
3815504/18/14
2385E Bellflower Unified School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
The ALJ properly admitted into evidence the School Board Action Item which described the bargaining unit positions at the school site to be eliminated due to “Lack of Work/Funds School Closure.” Under the official record exception, three conditions must be met: (1) the writing was made by and within the scope of duty of a public employee; (2) the writing was made at or near the time of the act, condition, or event; and (3) the sources of information and method and time of preparation were such as to indicate its trustworthiness. (Evid. Code, § 1280.) The District raised no objection to the authenticity of the document or to foundation. We conclude that the School Board Action Item was made by and within the scope of duty of a District employee; was made on or about May 6, 2010; and is a source of information which can be relied on to demonstrate the action taken by the School Board regarding the classified positions at the school site described therein. Thus, the School Board Action Item was admissible for all purposes under the official records exception to the hearsay rule. Under the party admission exception to the hearsay rule, evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity. (Evid. Code, § 1220.) The District was provided the opportunity but did not present its own witnesses. The District therefore never availed itself of the opportunity to contradict or explain the information contained in the School Board Action Item. We conclude that the ALJ properly admitted the School Board Action Item for all purposes under the party admission exception to the hearsay rule. We are reticent to conclude that the official record exception can be applied in the absence of a writing. In the absence of a writing the record was not sufficient to support a finding that the layoff notices seen by union officials qualify as official records of the District. In the absence of the actual document, the ALJ could consider evidence of layoff notices seen by union officials as a party admission over objection by the District that it was hearsay. The District had the opportunity to present testimony or documentary evidence to explain or contradict union’s evidence of the layoff notices, because the person alleged to have authored the notices was the District’s representative in attendance at the hearing. more or view all topics or full text.
391706/30/14
2221E Chula Vista Elementary School District * * * OVERRULED IN PART by Bellflower Unified School District (2017) PERB Order No. Ad-447
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
A telephone message left on charging party’s answering machine and a document memorializing statements made by the same individual in a telephone conversation with charging party the next day were admissible; even as inadmissible hearsay, the statements can be used to corroborate other evidence of retaliation under PERB Regulation 32176 and, as admissions of a party, the statements were admissible as independent evidence of retaliation under Evidence Code section 1220. more or view all topics or full text.
368811/23/11
2090M County of Riverside * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Given that supervisor did not testify to explain his actions and the only evidence on the basis for a counseling memo came in the form of uncorroborated hearsay testimony, the employer failed to establish any legitimate justification for the memo and the decision to reassign the employee and the imposition of new and onerous restrictions on his working conditions were taken in retaliation for exercise of protected rights. Likewise, in the absence of any testimony by percipient witnesses to underlying alleged incidents of workplace violence, the decision to place employee on administrative leave and terminate him were pretextual and taken in retaliation for exercise of protected rights. more or view all topics or full text.
344512/31/09
2019E Escondido Union Elementary School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Employer failed to meet burden of proof that it would have issued memo and disciplined employee notwithstanding filing of unfair practice charge. Criticisms justifying discipline were hearsay and, without independent evidence supporting them, cannot suffice to meet employer’s burden of proof. An employee need not justify each and every criticism in a disciplinary memo to satisfy the burden of proof, but there must be sufficient independent evidence for Board to conclude that the disciplinary action based on hearsay criticisms would have occurred notwithstanding the employee’s protected activity. more or view all topics or full text.
337404/30/09
1725E Hilmar Unified School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
The District’s uncorroborated hearsay evidence about harm to the District from allowing the Association direct contact with the health plan administrator was not credited. The District consequently did not provide evidence of operational necessity as balance to the harm to employees from precluding the Association from direct contact with the health plan administrator. more or view all topics or full text.
293512/15/04
1649M County of San Joaquin (Health Care Services)
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Hearsay evidence was properly admitted where it was corroborated by admissible evidence and/or the ALJ properly applied exceptions to the hearsay rule. Furthermore, to the extent the disputed evidence was not admitted for the truth of the matter asserted, it is not hearsay. more or view all topics or full text.
2818706/29/04
1635H Trustees of the California State University (San Marcos)
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
ALJ refused to admit a draft document at hearing. Board held that document should have been admitted into evidence. The fact that document was intended as a draft and constitutes hearsay affects the weight given the evidence, not its admissibility. However, even if admitted, the document does not affect the Board’s decision. more or view all topics or full text.
2815806/04/04
0808E Woodland Joint Unified School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Testimony concerning statements made by doctor to employee during appointments were a recital of events and not offered for a hearsay purpose, i.e., not offered as diagnostic evidence. However, even if they are hearsay, findings related to those statements constitute harmless error since the decision does not turn on the medical diagnosis, but rather, on whether the verification was imposed to intimidate and harass employee. more or view all topics or full text.
142110105/16/90
0628E Woodland Joint Unified School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Respondent's rebuttal to charging party's version of events solely hearsay, upon which no findings can be made. more or view all topics or full text.
111812106/30/87
0357E Calexico Unified School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Uncorroborated hearsay not used as evidence. Employer's agents testimony that he was told by an unnamed person that union member picked up a copy of board agenda is hearsay. more or view all topics or full text.
71429111/22/83
0264E North Sacramento School District
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Former PERB Regulation 32176 (a) expressly provides that hearsay statement are admissible as long as they are not, by themselves, used as a basis of a finding of fact; p. 13. more or view all topics or full text.
71401712/20/82