Mo. Code Regs. tit. 8 § 40-2.140

Current through Register Vol. 49, No. 20, October 15, 2024

Section 8 CSR 40-2.140 - Hearings

PURPOSE: This amendment clarifies the rule and procedures.

(1) The chair shall issue a notice of hearing, if after the filing of a valid petition, the petitioner, the public employer, and all intervenors are unable to resolve the matter through an agreed-upon method of adjustment approved by the chair. The chair has the discretion to determine the time, place, and means (physical appearance, telephonic, or electronic) of the hearing if the parties cannot mutually agree to the time, place, and means.

(2) A notice of hearing shall be served on all interested parties and shall be in writing and mailed or electronically transmitted at least ten (10) days before the hearing, unless otherwise agreed to by the chair and the parties. Such notice of hearing shall include:

(A) A statement of the time, place and nature of the hearing;

(B) The name of the public employer, petitioner and intervenors, if any; and

(C) A statement of the legal authority and jurisdiction under which the hearing is to be held.

(3) Hearings under these rules are considered investigatory and not adversarial. Their purpose is to develop a full and complete factual record upon which the board may base a meaningful report and recommendation.

(4) Representation hearings and the procedures following such hearings shall be in accordance with these rules.

(5) Rights of parties are-

(A) Any party shall have the right to appear at such hearing to call, examine, and cross-examine witnesses and to introduce into the record documentary or other relevant evidence, except that the participation of any party shall be limited to the extent permitted by the board; and provided further, that electronic copies of documentary evidence shall be submitted to the board and to the other parties involved in the hearing; and

(B) The board at its discretion may require paper copies of documents and may permit the filing of paper documents.

(6) Rules of evidence are-

(A) The parties shall not be bound by rules of evidence whether statutory, common law or adopted by the rules of court;

(B) All relevant evidence is admissible, except as otherwise provided;

(C) The board, in its discretion, may exclude any evidence or offer of proof if they find that its probative value is substantially outweighed by the risk that its admission will either necessitate undue consumption of time or create substantial danger of undue prejudice or confusion;

(D) The board shall give effect to the rules of privilege recognized by law;

(E) Every party shall have a right to present his/her cause by oral and documentary evidence and to submit rebuttal evidence; and

(F) Every party and the board shall have the right to examine and cross-examine as may be required for a full and true disclosure of the facts.

(7) A charging party in asserting a violation of these rules shall have the burden of proving the allegations of the charge by a preponderance of the evidence.

(8) Stipulation of Fact.

(A) In any proceeding an agreed statement of facts may be introduced into the record with respect to any issue.

(B) An agreed statement of facts may be accepted by the chair for a decision without a hearing.

(C) The acceptance of an agreed statement of facts by the chair may be deemed a waiver of a right to hearing.

(9) Objections to Conduct of Hearing.

(A) Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated orally or in writing accompanied by a short statement of the grounds for such objection and included in the record.

(B) No such objection shall be deemed waived by further participation in the hearing. Such objection shall not stay the conduct of the hearing.

(C) Automatic exceptions will be allowed to all adverse rulings.

(10) Motions Before or After Hearing.

(A) All motions, other than those made during a hearing, shall be made in writing to the chair, shall briefly state the relief sought, and shall be accompanied by affidavits setting forth the grounds for such motion.

(B) The moving party shall serve a copy of all motion papers on all other parties, and within three (3) days thereafter, excluding Saturdays, Sundays, and legal holidays, shall file with the chair the same with proof of service.

(C) Answering affidavits, if any, must be served on all parties and proof of service shall be filed with the chair within five (5) days, excluding Saturdays, Sundays, and legal holidays, after service unless the chair directs otherwise.

(D) The chair may decide to hear oral argument or to hear testimony thereon, in which case the chair shall notify the parties of such fact and of the time and place of such argument or for the taking of such testimony.

(E) All such motions, rulings and orders thereon shall be part of the record of the proceedings.

(11) Filing of Brief and Oral Argument at Hearing.

(A) Any party shall be entitled, upon request, to a reasonable period prior to the close of the hearing for oral argument, which shall be included in the official transcript of the hearing.

(B) At the discretion of the chair, the parties may be required to submit briefs within a reasonable time prior to the commencement of any hearing. The chair will determine a reasonable time by consulting both parties; however, the parties will receive a minimum of five (5) business days to prepare and file a required brief, unless all parties agree to a shorter amount of time. Any party shall be entitled, upon request made before the close of the hearing, to file a brief or proposed findings and conclusions, or both, with the board who may fix a reasonable time for such filing.

(C) Requests for further extensions of time shall be made to the chair and may be granted at the chair's discretion.

(D) No request will be considered unless received at least three (3) days, excluding Saturdays, Sundays, and legal holidays, prior to the expiration of the time fixed for the filing of briefs or proposed findings and conclusions, unless expressly authorized by the chair.

(E) Notice of the request for any extension shall be served simultaneously on all other parties and proof of service shall be furnished.

(F) Any brief or proposed findings and conclusions shall be filed with the chair, and copies shall be served simultaneously on the other parties, and a statement of such service shall be furnished.

(12) At the discretion of the chair, the hearing may be continued from day-to-day, or adjourned to a later date or to a different place, by announcement at the hearing by the chair or by other appropriate notice.

(13) The board will provide a hearing reporter and may order that the hearing reporter make a transcript of a hearing. The hearing reporter shall file the transcript with the board. Any party may request a copy of the transcript from the board. Any costs or fees for the hearing reporter and transcript will be shared equally among the parties.

(A) Any party may move to correct the transcript no more than thirty (30) days after the hearing reporter files the transcript. The board on its own motion may order the hearing reporter to correct the transcript any time before the board finally disposes of the case.

8 CSR 40-2.140

AUTHORITY: section 295.070, RSMo 1986. This version of rule filed Dec. 31, 1975, effective Jan. 10, 1976. Golden Valley Mem. Hosp. Dist. v. Mo. State Board of Mediation 559 SW2d 581 (Mo. App. 1977). Since it is clear that the general assembly did not intend to use the term "employee" as that word is used in sections 105.500-105.525, RSMo 1969 to designate everyone on the payroll of a public body, it is mandatory that the Board of Mediation resolve whether certain supervisory nurses shall be included in a bargaining unit. Lincoln County Memorial Hospital v. Mo. State Board of Mediation 549 SW2d 665 (Mo. App. 1977). An appeal does not lie, except in unusual cases, from an administrative determination of appropriate bargaining unit, prior to determination of majority representative status by the Board of Mediation. Public policy is against the calculated stalling of collective bargaining by dilatory tactics, which led congress to eliminate separate judicial review of the determination of an appropriate bargaining unit. Achievement of this public policy requires expeditious completion of the administrative process, and this can best be done by adoption of the federal rule requiring that the entire administrative process be terminated before judicial review can become operative. City of Kirkwood v. Missouri State Board of Mediation 478 SW2d 690 (Mo. App. 1972). Section 295.030, RSMo requiring appointment of a five-member board, does not require that all five must sit in a hearing. On the contrary, section 295.040 states that three members of the board shall constitute a quorum for the transaction of business. State ex rel. State Board of Mediation v. Pigg 244 SW2d 75 (Mo. Banc, 1951). It is apparent that the part of the chapter dealing with the State Board of Mediation and the public hearing panels is in no wise dependent upon sections 295.090, 295.180 and 295.200, RSMo although these later sections are dependent upon the sections providing for mediation and public hearing panels. Op. Atty. Gen. No. 4, King, Jr., 2-1-72. Missouri State Board of Mediation is not precluded from mediating dispute in industry subject to federal labor relations statutes, pursuant to section 295.080, RSMo 1969 unless Federal Mediation and Conciliation Service actually assumes jurisdiction by proffering its services.

Amended by Missouri Register September 1, 2022/Volume 47, Number 17, effective 10/31/2022

Amended by Missouri Register June 15, 2023/Volume 48, Number 12, effective 7/31/2023