THE INDUSTRIAL BOARD OF APPEALS

RULES OF PROCEDURE AND PRACTICE

Title 12 of the New York State Official Compilation of Codes, Rules and Regulations, Chapter 1, Subchapter B, Part 65.

PART 65

GENERAL

(References to "Article" and "Section" are to Articles and Sections of the New York State Labor Law, unless otherwise indicated.)

Section § 65.1 Application.

(a)       This Part shall apply to the filing, processing, hearing, consideration and determination of every proceeding wherein they may be relevant and appropriate.

(b)       When no substantial right is prejudiced thereby, the Board may, on its own motion or that of any party, suspend the application of any provision of these rules in a specific proceeding, or waive compliance therewith.

Note: (Time periods prescribed by statute cannot be extended)

§ 65.2 Gender and Number.

(a)        Words importing the singular number may extend to be applied to the plural, and vice versa.

(b)        Words importing the masculine gender may be applied to the feminine gender.

(c)           The word "person" shall include an individual, corporation, partnership, unincorporated association, or other legal entity, as context may require.

§ 65.3 Computation of time.

(a)       In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.

(b)       When the period of time prescribed or allowed is less than seven days, Saturdays, Sundays and legal holidays shall be excluded in the computation.

(c)       Where a period of time prescribed by these rules except in the case of petitions required to commence a proceeding is measured from the service of a paper, and service is by mail, three days shall be added to the prescribed period.

(d)       Where a period of time prescribed by these rules (except in the case of petitions required to commence a proceeding) is measured from the service of a paper, and service is by overnight delivery service, one (1) day shall be added to the prescribed period.        

§ 65.4 Record address.

(a)        All pleadings and papers filed with the Board shall contain the name, address and telephone number of the person filing the same. Any change in such information must be communicated promptly in writing to the Board.

(b)        The failure to furnish such information shall be deemed a waiver of the right to notice and service under these Rules.

§ 65.5 Filing and Docketing.

(a)        An original and three conformed copies of all papers required to be filed with the Board under these Rules shall be filed with the Board, at its Albany office.

(b)         Unless otherwise ordered, all filing may be accomplished by first class mail or by personal service.

(c)        Papers shall be deemed filed only upon receipt at the Board's office.

(d)       Any pleading postmarked within the time provided for by these Rules shall be deemed timely filed.

(e)       The Board shall maintain a docket of all cases, and all papers filed in such proceedings shall be appropriately docketed.

(f)       The time period provided for the filing of petitions, applications and other documents may vary depending upon the specific nature of the proceeding. Reference is made to several provisions of Parts 66-73, inclusive, of this Subchapter, as they may apply to a relevant proceeding.

(g)        Requests for extensions of time for the filing of any pleading or other paper must be received in advance of the date on which the pleading or paper is due to be filed.

Note: (Time periods prescribed by statute cannot be extended.)

SUB-PART B

PARTIES AND NOTICE OF PROCEEDINGS

§ 65.6 Party Status.

(a)       The term party shall include a petitioner, an applicant, a respondent, an intervenor, an objector, and the Commissioner of Labor.

(b)        The service of any petition, application or notice in a proceeding upon any person including the Commissioner of Labor or the department, either by a party or by the Board, shall constitute such person a party to such proceeding.

§ 65.7 Intervention.

(a)        Intervention shall be permitted, if at all, in the Board's sole discretion.

(b)               An application for leave to be heard or to intervene as a party shall be made in writing an original and three complete conformed copies. While the application may be made at any stage of a proceeding, it must be received by the Board prior to the commencement of the hearing.

(c)        The application shall:

1.        identify the applicant;

2.        specify the interest of the applicant in the proceeding;

3.        show that the applicant's participation will assist in the determination of the issues raised in the proceeding; and

4.        show that such participation as the Board may permit will not unnecessarily delay the proceeding.

(d)        If an application for leave to be heard or to intervene as a party is granted, the Board may limit the extent of and the terms on which such participation shall be permitted.

§ 65.8 Representatives of parties.

(a)        Any party may appear in person, by an attorney-at-law or by a designated agent authorized to act in such capacity. Such authorization shall be set forth in a written statement signed by such party or by an appropriate officer thereof and filed with the Board.

(b)        An attorney-at-law or designated agent of a party shall be deemed to control all matters respecting the interest of such party in the proceeding.

(c)        Withdrawal of appearance of any representative may be effected by filing the original and two copies of a written notice of withdrawal with the Board.

(d)        Attorneys or other authorized agents shall file an appearance notice on forms to be provided by the Board at the hearing.

§ 65.9 Service and notice by or on parties.

Proof of service shall be endorsed upon or annexed to all pleadings other than the initial application or petition and other papers to be submitted to or filed with the Board.

§ 65.10 Service and Notice by Board.

(a)        Service and notice by the Board shall be accomplished by postage-prepaid first class mail. Service is deemed effected at the time of mailing.

(b)        Service upon a party who has appeared through a representative shall be made upon such representative.

SUB - PART C

PLEADINGS AND MOTIONS

§ 65.11 Form.

(a)        Except as provided herein, there are no specific requirements as to the form of any pleading. A pleading must contain information sufficient to identify the parties and include the Board's docket number, if assigned.

(b)        Pleadings and other documents (other than exhibits) shall be legible, preferably typewritten or printed, double-spaced, on letter-size opaque paper (approximately 8-1/2 x 11 inches.)

§ 65.12 Pleadings and Motions.

(a)        Reference is made to the various provisions of Parts 66-73, inclusive, of this Subchapter, for rules regarding pleadings.

(b)        All motions, rulings and orders, except as otherwise provided for in any other of these Rules, shall become part of the record. Except by permission of the Board, rulings by the Hearing Officer during the conduct of a hearing shall not be appealed or referred directly to the Board, but shall be considered by the Board upon its review of the complete record.

(c)        The right to make motions or to make objections to rulings shall not be deemed waived by participation in a proceeding.

§ 65.13 Motions Addressed to Pleading; Time for Filing.

(a)        If any matter contained in a petition, answer or reply be frivolous, irrelevant, redundant, repetitious, unnecessary, impudent or scandalous, or may tend to embarrass or delay the fair hearing or consideration of a proceeding, the Board, on its own motion or on the motion of any party made on ten (10) days' notice of motion, may order such material stricken. In such case, the pleading will be deemed amended accordingly, or the Board may order that an amended pleading be served, omitting the objectionable material.

(b)        If any material contained in a petition, answer or reply be so indefinite, uncertain or obscure that the precise meaning or application thereof is not readily apparent, the Board, on its own motion or on the motion of any party made on 10 days' notice of motion, may order the party responsible to file and serve an amended pleading.

(c)        The motions referred to in subdivisions (a) and (b) of this section, shall be made by a party, within thirty (30) days after service of the petition, answer or reply.

(d)        1. Within thirty (30) days after the receipt of a petition, any Respondent may, upon ten (10) days' notice of motion, move for an order dismissing the petition where it appears that:

(i)       the Board lacks jurisdiction in the matter;

(i)       the petitioner is not an interested party; or

(iii)     the petition fails to comply with the provisions of either Section 101 or the Board's Rules.

2. Thereafter, such motion shall be made only by permission of the Board.

§ 65.14 Failure to File.

Failure to file any pleading pursuant to these rules when due may, in the discretion of the Board, constitute a waiver of the right to further participation in the proceeding.

SUB-PART D

PRE-HEARING PROCEDURE AND DISCOVERY

§ 65.15 Withdrawal of petition or application.

At any stage of a proceeding, a party may withdraw his petition or application, subject to the approval of the Board.

§ 65.16 Pre-hearing conference.

At any time before a hearing, the Board or the Hearing Officer, on their own motion or on motion of a party, may direct the parties or their representatives to exchange information or to participate in a pre-hearing conference for the purpose of considering matters which will tend to simplify the issues or expedite the proceeding.

§ 65.17 Bills of Particulars; Procedure.

(a)                Within eight days after issue is joined any party to a proceeding under this Part may demand a bill of particulars from any other party of the claim or contentions set forth in a pleading. Thereafter, such demand shall be made only by motion to the Board.
(b)               A demand for a bill of particulars shall be made by serving a written notice stating the items concerning which such particulars are desired. If the party upon whom such notice is served is unwilling to give such particulars, in whole or in part, he may move to vacate or modify such notice within eight days after receipt thereof. Such motion shall be made on eight days' notice. The notice or supporting papers shall specify clearly the objections and the grounds therefor. If no such motion is made, the bill of particulars shall be served within eight days after the demand therefor, unless the Board shall otherwise direct.
(c)                The original demand and, if a bill of particulars is served, the original and three copies of such bill shall be filed promptly with the Board.

(d)                  In the event that a party fails to serve a bill of particulars, or where a bill of particulars is regarded as defective or insufficient by the party upon whom it is served, the Board, upon written application, may make an order of preclusion, direct the service of a further bill or grant such other order as it may deem proper. In the absence of special circumstances, application for such relief shall be made within eight days after the time to serve a bill has expired, or within eight days after the receipt of the bill claimed to be defective or insufficient, as the case may be. Such application shall be filed with the Board, with proof of service upon the other party attached or annexed thereto, and shall be returnable before the Board not less than eight days from the date of service.

§ 65.18 Discovery depositions and interrogatories.

(a)                Except by order of the Board, discovery depositions of parties or witnesses, or interrogatories directed to parties or witnesses, shall not be allowed.

(b)               In the event the Board grants an application for the conduct of such discovery proceedings, the order granting the same shall set forth appropriate terms and conditions governing the discovery.

§ 65.19 Failure to comply with orders for discovery.

If any party fails to comply with an order of the Board directing discovery in accordance with the provisions of these rules, the Board may issue appropriate orders.

§ 65.20 Subpoenas.

(a)                The Board, by one or more members, shall have the power to issue subpoenas for and compel the attendance of witnesses and the production of books, contracts, papers, documents and other evidence. Applications for subpoenas shall be filed with the Board and such applications may be ex parte. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued.

(b)               Any person served with a subpoena shall, within five days after the date of service of the subpoena upon him, move in writing to revoke or modify the subpoena if he does not intend to comply. All motions to revoke or modify shall be served on the party at whose request the subpoena was issued. The Board shall revoke or modify the subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceeding, or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The Board shall make a statement of procedural or other grounds for the ruling on the motion to revoke or modify. The motion to revoke or modify, any answer filed thereto and any ruling thereon, shall become a part of the record.

(c)                Persons compelled to submit data or evidence at a public proceeding are entitled to retain or, on payment of lawfully prescribed costs, to procure copies of transcripts of the data or evidence submitted by them.

(d)               Subpoena forms shall be requested and obtained from the Board, completed by the requesting party and submitted to the Board for issuance. Service of subpoenas shall be effected by the requesting party.

HEARINGS

§ 65.21 Notice.

Notice of the time, place and nature of a hearing shall be given by the Board to the parties at least eight days in advance of such hearing.

§ 65.22 Hearing; who shall conduct; to be public unless otherwise ordered.

A hearing in any proceeding may be conducted by one or more Board members or an employee of the Board designated as a hearing officer by the Board. At any time a hearing officer may be designated by the Board to take the place of a person or persons previously designated to conduct a hearing. Every hearing shall be public unless otherwise ordered by the Board.

§ 65.23 Postponement.

(a)                Postponement of a hearing ordinarily will not be allowed.

(b)               Except in the case of an emergency or in unusual circumstances, no request for postponement will be considered unless received in writing at least three days in advance of the time set for the hearing.

(c)          No postponement shall be allowed without Board approval.

§ 65.24 Failure to appear.

(a)               Subject to the provisions of subdivision c of this section, the failure of a party to appear at a hearing shall be deemed to be a waiver of all rights except the rights to be served with a copy of the decision of the Board and to request Board review pursuant to Section 65.41 of this Part.

(b)            Requests for reinstatement must be made, in the absence of extraordinary circumstances, within five days after the scheduled hearing date.

(c)               The Board, upon a showing of good cause, may excuse such failure to appear, and in such event the hearing will be reopened.

§ 65.25 Payment of witness fees and mileage; fees of persons taking depositions.

Witnesses summoned before the Board or the hearing officer shall be paid the same fees and mileage that are paid witnesses under the provisions of the Civil Practice Law and Rules of the State of New York, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the State of New York. Witness fees and mileage shall be paid by the party at whose instance the witness appears, and the person taking a deposition shall be paid by the party at whose instance the deposition is taken.

§ 65.26 Transcript of testimony.

Hearings shall be transcribed verbatim. A copy of the transcript of testimony taken at the hearing, duly certified by the reporter, shall be maintained on file with the Board. Copies of the transcript may be obtained by the parties upon written application filed with the Board pursuant to the provisions of Part 73 of this Subchapter.

§ 65.27 Duties and powers of hearing officer.

A member or employee of the Board designated to conduct a hearing or investigation shall have the following duties and powers:

               (a)          to conduct any investigation ordered by the Board;

               (b)          to report findings of investigations to the Board;

               (c)          to hold and conduct a hearing, when ordered by the Board, relating to any matterpertaining to the Board's exercise of its functions;

               (d)          to call, examine and cross-examine witnesses;

              (e)         to record the testimony of any such witness, or to obtain from such witness a written statement, under oath or affirmation, on matters pertinent, relevant or necessary to the investigation;

              (f)         to examine and receive any document or other evidence which is deemed pertinent, relevant or necessary to the investigation;

              (g)          to receive offers of proof, to receive evidence and testimony and to receive any objections to such offers of proof, or evidence and testimony, at or during any hearing;

              (h)          to regulate, in any matter, the course of the hearing, subject to confirmation by the Board;

              (i)          to hold conferences for the settlement or simplification of the issues, on consent of the parties, and to report thereon, with recommendations, to the Board; and

              (j)          to continue an investigation or hearing from day to day or adjourn same to a later date or to a different place by announcement thereof at the hearing or by other notice.

§ 65.28 Duties and powers of Board members.

              (a)         to administer oaths and affirmations;

              (b)         to take affidavits;

              (c)         to issue subpoenas for and compel the attendance of witnesses and the production of books, contracts, papers, documents and other evidence;

              (d)         to rule upon petitions to revoke, amend or modify subpoenas or subpoenas duces tecum, subject to confirmation by the Board;

              (e)         to rule upon offers of proof and receive relevant evidence;

               (f)         to dispose of procedural requests or similar matters; and

              (g)         to allow any petition, answer or other paper in any proceeding to be supplemented, amended or corrected, provided that such change does not operate to prejudice a party's cause or unduly broaden or alter the issues of a proceeding.

§ 65.29 Rules of evidence.

The Board and the hearing officer shall not be bound by technical rules of procedure and evidence.

§ 65.30 Burden of proof.

§ 65.31 Examination of witnesses.

Witnesses shall be examined orally under oath or affirmation. Opposing parties shall have the right to cross-examine any witness whose testimony is introduced by an adverse party.

§ 65.32 Exclusion from hearing; striking testimony.

Contumacious or contemptuous conduct before the Board or hearing officer shall be ground for exclusion from a hearing. The refusal of a witness at any hearing to answer a question which has been found by the Board to be proper shall, in the discretion of the Board, be ground for striking of all or any part of the testimony previously given by such witness on related matters.

§ 65.33 Objections.

(a)         Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence or a ruling by the hearing officer, may be stated orally or in writing, accompanied by a short statement of the grounds for the objection, and shall be included in the record. No such objection shall be deemed waived by further participation in the hearing.

(b)         Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record of the proceeding.

§ 65.34 Deposition in lieu of oral testimony; application; procedures; form; rulings.

(a)         An application to take the deposition of a witness in lieu of oral testimony shall be in writing and shall set forth the reasons such deposition should be taken, the name and address of the witness, the matters concerning which it is expected he will testify and the time and place proposed for the taking of the deposition, together with the name and address of the person before whom it is desired that the deposition be taken for purposes of this section, hereinafter referred to as the officer. Such application shall be filed with the Board, with proof of service thereof on all other parties. If the application is granted, the Board shall make and serve on the parties an order which specifies the name of the witness whose deposition is to be taken and the time, place and designation of the officer before whom the witness is to testify. Such officer may or may not be the officer specified in the application.

(b)          Such deposition may be taken before any officer authorized to administer oaths by the laws of the State of New York, or of the place where the examination is held.

(c)          At the time and place specified in the order, the officer designated to take such deposition shall permit the witness to be examined and cross-examined under oath or affirmation by all parties appearing, and the questions asked of and answers given by the witness shall be recorded verbatim and reduced to typewriting by the officer or under his direction. All objections to questions or evidence shall be deemed waived unless made at the examination. The officer shall not have power to rule upon any objection, but he shall note them upon the deposition. The testimony shall be subscribed by the witness in the presence of the officer, who shall attach his certificate stating that the witness was duly sworn by him, that the deposition is a true record of the testimony and exhibits given by the witness, and that the officer is not of counsel or attorney to any of the parties nor interested in the proceeding. If the deposition is not signed by the witness because he is ill, dead, cannot be found, or refuses to sign it, such fact shall be included in the certificate of the officer and the deposition may be used as fully as though signed. The officer shall immediately deliver an original and four copies of the transcript, together with his certificate, in person or by certified mail to the Board at its Albany office.

(d)          The Board shall rule upon the admissibility of the deposition or any part thereof.

(e)         The right to object to any error or irregularity that does not comply with the provisions of this section shall be deemed waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, discovered.

(f)         If the parties so stipulate in writing, the deposition may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used as other depositions.

§ 65.35 Exhibits.

(a)          All exhibits offered in evidence shall be numbered and marked with a designation identifying the party by whom the exhibit is offered.

(b)          In the absence of objection by another party, exhibits shall be admitted into evidence as a part of the record, unless excluded by the Board upon proper ground.

(c)          Unless the Board finds it impractical, a copy of each exhibit shall be provided by the offering party to the other parties, and the Board.

(d)          All exhibits offered, but denied admission into evidence, shall be identified as in subdivision (a) of this section and shall be placed in a separate file designated for rejected exhibits.

§ 65.36 Filing of Briefs and Proposed Findings with Board; Oral Argument at Hearing.

Any party shall be entitled, upon request, to a reasonable period before the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Any party shall be entitled, upon request made before the close of the hearing, to file a brief, proposed findings of fact and conclusions of law, or both, with the Board. The Hearing Officer may fix a reasonable period of time for such filing.

§ 65.37 Submission Without Hearing or Appearance.

§ 65.38 Record of Proceedings.

(a)         The Hearing Officer shall, within a reasonable time after any hearing held, transmit the record of the proceeding together with his report to the Board for decision.

(b)         The record in any proceeding held pursuant to this Part shall include: the petition or application; the answer; the reply, if any; motions and requests filed in written form and rulings thereon; any documents or papers filed in connection with pre-hearing conferences; the transcript of the testimony taken at the hearing, together with the exhibits admitted in evidence; any written statement, objections or briefs that may have been filed.

§ 65.40 Finality for Purposes of Judicial Review.

§ 65.41 Reconsideration of Petition or Application.

(a)          Application for reconsideration after a determination made by the Board shall be in writing, and shall state specifically the grounds upon which the application is based. When any determination, resolution, requirement or order of the Board is sought to be reversed, modified, changed, rescinded or terminated on account of facts or circumstances arising subsequent to a hearing or on account of consequences resulting from compliance with such determination, resolution, requirement or order, which are claimed to justify a reconsideration of the proceeding, the matters relied upon by the applicant shall be set forth fully.

(b)          A copy of the application for reconsideration shall be served on all parties to the proceeding by the party asking for the reconsideration, and proof of service shall be attached to the application filed with the Board. If any party to the proceeding wishes to oppose the granting of a request for reconsideration, such party must file, within 10 days from the receipt of a copy of the application, a statement setting forth the reasons why it is believed such a request should not be granted.

(c)          The Board, at any time, may reopen a proceeding or require a rehearing.

SUB - PART G