V.   Hearings

A.    Pre-Hearing Conference

        1.  Scheduling of Pre-Hearing Conferences

            The PELRB will schedule a pre-hearing conference under Pub 202.01 in cases in which the PELRB has determined that such a conference is necessary and appropriate “in order to facilitate proceedings and encourage informal disposition of matters.”  Hearing officers normally conduct pre-hearing conferences, and such conferences are typically scheduled in connection with unfair labor practice proceedings. In other cases, such as petitions for certification and petitions for modification, pre-hearing conferences are scheduled less often, and such cases are instead typically scheduled for an adjudicatory hearing on the merits without the use of a pre-hearing conference.

         2.  Joint Pre-Hearing Worksheet

Prior to a pre-hearing conference the parties are required to jointly prepare and submit a “Joint Pre-Hearing Worksheet.”  The purpose of the Joint process is to encourage communication and discussion between the parties on the facts in the case, including possible witnesses, exhibits, as well as the underlying issues.  After agreement on the content of the Joint Pre-Hearing worksheet one party should submit the worksheet on behalf of both parties.  Good faith participation in this process is expected, and it is anticipated that upon the completion of this process the parties appear for pre-hearing with an informed understanding of the case. The parties will also be better prepared to raise and address any preliminary matters that require the attention of the presiding hearing officer during the conference and also will result in both parties having a more realistic understanding of possible non-adjudicatory resolutions.  

The specific information the parties are required to address and include in their Joint Pre-Hearing Worksheet includes the following:

(1) The name, address, telephone number, and e-mail address of the representative;

(2) Summary of issue(s) presented for hearing;

(3) Identification of any procedural issues;

(4) List of pending motions;

(5) Identification of witnesses;

(6) Estimate of time for case presentation;

(7) List of joint and agreed exhibits;

(8) List of other exhibits and basis for objections to same;

(9) An agreed statement of uncontested facts; and

(10) An agreed statement of contested facts.

3.  Purpose of pre-hearing conference

The following are among the subjects to be addressed at the pre-hearing conference:

(1) Exploring settlement alternatives;

(2) Identifying, resolving and simplifying the issues to be raised and presented at hearing;

(3) Finalizing stipulations of fact;

(4) Identifying and/or limiting the number of witnesses to be called;

(5) Reviewing, exchanging and final marking of exhibits; and

(6) Addressing other matters which may assist and aid in the disposition of the pending matter.

            Counsel of record, or the other authorized representative of record if a party is not represented by counsel, are required to attend. The attendance of others not involved in the management of the case, such as witnesses or other interested persons, is not required.   Party representatives should be prepared to devote a portion of the conference to a serious and meaningful discussion of settlement alternatives. This requires that counsel or other authorized representatives discuss such possibilities with their respective parties prior to the conference.

            4. Pre-Hearing Conference Memorandum and Order

Following the pre-hearing conference the presiding hearing officer will issue to the party representatives a written Pre-Hearing Conference Order and Memorandum which typically summarizes the nature of the case, pending issues, witnesses, exhibits, the hearing schedule, and such other matters as may be necessary. Cases which resolve at the pre-hearing conference will be dismissed or a final or interim PELRB decision will issue upon the basis of the parties’ agreement as appropriate.  Additionally, a filing party may withdraw a pending case and request dismissal under Pub 201.04 (e).

B.        Adjudicatory Hearings

            1. Appearance and Representation in PELRB Adjudicatory Proceedings

            Parties may be represented by legal counsel or may represent themselves.  Attorneys admitted in other jurisdictions are allowed to appear and represent parties in PELRB adjudicatory proceedings, but may not necessarily be allowed to represent such parties in connection with any appeal proceedings before the New Hampshire Supreme Court.  Representatives and Counsel must file written appearances indicating their representative status and providing address, email, and telephone contact information to the PELRB and to the other parties or their representatives of record.  All party representatives, or individuals representing themselves, are expected to be familiar with the provisions of RSA 273-A, PELRB rules, and New Hampshire law relating to any legal issues that may arise in a proceeding in which they are involved.

2.  Rules of evidence

            The formal rules of evidence do not apply, but evidence that is irrelevant, immaterial, or unduly repetitious will be excluded at hearing.

3.  Witness and Document Subpoenas

 Parties, through their representatives or counsel, may request in accordance with the requirements of Pub 203.01 that the PELRB compel, by subpoena, the attendance of a witness  and/or the production of documents at hearing.  A written application meeting the requirements of Pub 203.01 is required.  The application shall include a clear and concise statement of the reason for making the application, including a description of the relevance of the witnesses’ testimony or requested documents.  The PELRB will process appropriate applications by preparing and issuing a subpoena – the requesting party is responsible for service of the subpoena and payment of witness fees.   The PELRB also has authority to subpoena witnesses and documents, even in the absence of an application from a party to the proceeding.

             4. Consolidation of related cases

By motion of a party or on its own motion and in accordance with Pub 202.11 the PELRB may consolidate matters for hearing when the parties are similar or there are multiple pleadings seeking the same relief, and that consolidation will result in more efficient adjudication of the issues and avoid duplicative proceedings.  Before acting on a consolidation motion the PELRB will consider any objections to consolidation that have been filed.

5.  Notice of Hearing

Under PELRB rules, ten days notice of adjudicatory hearings will be given unless the notice period has been shortened Pub 207.07 (d), which provides less notice is appropriate if:

(1) The parties, interveners, or their counsel or authorized representative have waived the 10 day notice of hearing requirement; or

(2) The presiding officer determines that shorter notice is necessary:

a. Because the pending proceeding includes a request for interim relief and alleges matters of irreparable harm or alleges a violation of RSA 273-A:5, I(f) or 273-A:5,  II(e) and the requesting party or intervener has shown a likelihood of prevailing based on the pleadings; or

b.  In order to avoid unnecessary prejudice to  a party or intervener

Employers are required to post hearing notices in the workplace. 

6.  Continuances

Any party seeking a continuance of a scheduled hearing (or pre-hearing conference) must file a motion to continue in compliance with the detailed requirements of Pub 201.08.  Motions seeking continuances which omit necessary information will be returned with a request that for resubmission in compliance with the rule.

 7.  Amendments of complaints, petitions, and answers

As provided in Pub 201.04, motions to amendment complaints and answers are allowed if filed at least 15 days prior to the date of hearing, and motions filed within 15 days of the date of hearing will be allowed unless the amendment shall result in unnecessary delay of the proceeding or unfair prejudice to another party in the proceeding.

8.  Intervention

Petitions to intervene and/or to participate as amicus curiae are subject to the requirements of Pub 201.10.   The petitioner is required to demonstrate that its rights, duties, privileges or other substantial interests might be affected or that such intervention would be in the interests of justice while not impairing the orderly and prompt conduct of the PELRB proceedings.

9.  Exhibits

 In cases in which a pre-hearing conference is conducted parties are required to list their exhibits in the Joint Pre-Hearing Worksheet, and the Pre-Hearing Order and Memorandum may establish further deadlines for the filing of a final exhibit list.  A proper exhibit list should  describe each exhibit individually, and include sufficient detail, such as date and other identifying information.   In all other cases, parties must file exhibit lists  at least ten days prior to hearing, or in accordance with other applicable deadlines the PELRB may establish in the case. Each exhibit offered as evidence at hearing shall include the  original  or an authenticated conformed copy of the original and five  copies. Exhibits should be properly pre-marked for identification prior to the hearing. Exhibits are usually marked as "Joint Ex.  (#)" if agreed upon, "Union Ex. (#)" or "Association Ex. (#) " when offered by  employee organizations, and "State Ex. (#) ", "County Ex. (#) ", "City Ex. (#) ", "Town Ex. (#)” or " District Ex. (#)", as appropriate, when offered by the public employer.   Documents used to impeach a witness do not necessarily need to be offered into evidence as an exhibit and do not need to be pre-marked for identification.  However, documents which a party intends to offer as full exhibits should be included on the exhibit list, even though the document might also be used to impeach a witness.   Like all exhibits, documents used to impeach should not be unduly repetitious given other evidence already accepted into the record.

10.  Witnesses

            In cases in which a pre-hearing conference is conducted parties are required to list their witnesses in the Joint Pre-Hearing Worksheet, and the Pre-Hearing Order and Memorandum may establish further deadlines for the filing of a final witness list.  In all other cases, parties must file witness lists at least ten days prior to hearing, or in accordance with other applicable deadlines the PELRB may establish in the case.  At hearing, upon a proper request under Pub 203.01 (c) or on its own motion, the PELRB may   sequester witnesses when it shall assist the trier of fact.

C.        Conduct of Hearings            

1.  Presiding Officer

Hearings are conducted by a panel of board members or by a Hearing Officer.  Panels are comprised of 3 board members, with labor, management, and the public at large each represented by a board member, and with the board member representing the public at large serving as the presiding officer.   In non-panel hearings the Hearing Officer is the presiding officer. 

2.  Record

Adjudicatory proceedings are recorded in order to make a record of the proceedings for submission to the New Hampshire Supreme Court in the event an appeal to that court is filed and accepted.  Interested persons may also obtain a copy of such recordings by submitting a request with the required payment in accordance with Pub 103.01 (b).

3.  Adjudicatory Hearing Process

             The purpose of adjudicatory hearings is to establish the record upon which the decision in the case will be made, together with any proper filings submitted before the adjudicatory hearing or after the adjudicatory hearing, such as the complaint, answer, motions and objections, and post-hearing briefs.  The record made at hearing generally consists of opening statements, testimony provided under oath, documents offered as exhibits, evidentiary objections and rulings, and closing arguments.  At the outset of the formal adjudicatory hearing the presiding officer will announce and identify the case, and participants will be asked to identify themselves for the record. Brief opening statements are generally allowed, and should concentrate on identifying the issues in the case as well as the evidence that will likely be offered to address the issues.  Opening statements should not be used to argue the merits of the case.

The moving party, usually the party who has filed the complaint, petition, or motion, has the burden of proof and will therefore be asked by the presiding officer to proceed first.  The party with the burden of proof should offer all their evidence, whether through witness testimony or through exhibits, while presenting their case in chief.    This means that the moving party should call all witnesses from whom they wish to elicit testimony, including those witnesses who may be represented by the other party and from whom the other party intends to elicit testimony.  The other party or parties have the right to cross-examine all witnesses called, and in general, on cross-examination the opposing counsel or representative of the other party should elicit all evidence from witnesses and should not defer examination until the completion of the moving party’s case. After the moving party has submitted its case, the other party or parties will have the opportunity to call additional witnesses and offer additional exhibits in order to provide any additional relevant evidence.  At this juncture parties should refrain from offering testimony and documents that are duplicative of evidence already received into the record.  In the case of panel hearings, board members may also inquire of any witness, and the same is true if a Hearing Officer is hearing the case.

            Additional evidence may be received into the record upon the completion of the adjudicatory hearing and close of the record under the process described in Pub 203.06 and 203.07.  However, neither rule is intended to allow the submission of evidence which could have been offered during the course of the completed adjudicatory hearing.  The Presiding Officer may also reopen the record irrespective of whether a party has moved to reopen the record in order to receive additional evidence as per Pub 203.06 (a).

4.  Post Hearing Briefs

Parties may request the opportunity to file post hearing briefs in accordance with the requirements of Pub 203.05.            In some cases the presiding officer may direct the submission of post hearing briefs, irrespective of whether the parties have requested permission to prepare and file such briefs.  When allowed, post hearing briefs generally must be submitted within 14 days after the close of the adjudicatory hearing unless the Presiding Officer grants a request for additional time.  Briefs may not exceed 15 pages in length.  The specific formatting requirements are described in the rule.

 5.  Issuance of Decision

 Decisions generally issue within forty-five days after the close of the hearing or the filing of post-hearing briefs, whichever last occurs.

6.  Review of a Decision of a Hearing Officer

The process for review of final Hearing Officer decisions following the adjudicatory hearing process is outlined in Pub 205.01.  Any party seeking to file a review request should carefully review the rule to ensure compliance with all applicable provisions.   Review requests are considered by a panel of board members.  This review process applies to final decisions issued by a Hearing Officer on the merits of the case, which is either after completion of the adjudicatory hearing and submission of any post-hearing brief or after submission of the case on the merits based upon an agreed statement of facts and briefs.  Requests for review must be filed within 30 days of the Hearing Officer decision or the decision becomes final, at which point it is not subject to review or appeal.

7.  Motion for Rehearing

Any decision by a panel of board members following an adjudicatory hearing, or their decision on a Request for Review of a Hearing Officer Decision, is subject to a Motion for Rehearing under Pub 205.02 and RSA 541:3-5.   All such motions must be filed within 30 days of the issuance of the board’s decision.  Any party seeking to file a Motion for Rehearing should carefully review the rule and statute to ensure compliance with all applicable provisions. 

8.  Appeals to the New Hampshire Supreme Court

 The filing of a proper Motion for Rehearing is a prerequisite to the filing of an appeal to the New Hampshire Supreme under RSA 541:6.  Under this statute, appeals are by petition to the court and must be filed “[w]ithin thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the decision on such rehearing.”

Updated 7-23-09