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.

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.

§ 65.4 Record address.

§ 65.5 Filing and Docketing.

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.

§ 65.10 Service and Notice by Board.

PLEADINGS AND MOTIONS

§ 65.11 Form.

§ 65.12 Pleadings and Motions.

§ 65.13 Motions Addressed to Pleading; Time for Filing.

§ 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.

In addition to those powers and duties mentioned and described in Section 65.27 of this Part, the Board by one or more of its members shall have the following duties and powers:

              (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.

The burden of proof of every allegation in a proceeding shall be upon the person asserting it.

§ 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.

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

§ 65.35 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.

With leave of the Board, any proceeding where sufficient facts have been admitted, stipulated or otherwise included in the record may be submitted at any time for decision or other appropriate action upon consent of all parties.

SUB - PART F

DECISIONS AND POST-DECISION ACTIONS

§ 65.38 Record of Proceedings.

§ 65.39 Decision of the Board.

Within a reasonable time after any hearing held pursuant to this Part, the Board shall make, and issue to each affected party, a decision which shall be in the form of a resolution adopted by a majority vote of the Board. Such resolution shall contain findings of fact and law upon which the decision is based.

§ 65.40 Finality for Purposes of Judicial Review.

A resolution of decision of the Board shall be final, subject to judicial review as provided in the Labor Law.

§ 65.41 Reconsideration of Petition or Application.

MISCELLANEOUS PROVISIONS

§ 65.42 Settlement.

§ 65.43 Expedited proceedings.

§ 65.44 Consolidation.

Proceedings may be consolidated on the motion of any party, or on the Board's own motion, where there exist common parties, common questions of law or fact, or both, or in such other circumstances as justice and the administration of the law require.

§ 65.45 Severance.

Upon its own motion, or upon motion of any party, the Board may, for good cause, order any proceeding severed with respect to some or all issues or parties.

§ 65.46 Standards of conduct.

All persons appearing in any proceeding shall conform to the standards of ethical conduct required in the courts of the State of New York.

§ 65.47 Joinder of petitioners.

All persons in whom any right to relief in respect of or arising out of any rule, regulation or order is alleged to exist, whether jointly or severally, may join in one proceeding as petitioners where, if such persons brought separate petitions, any common question of law or fact would arise; provided that, if it shall appear to the Board that such joinder may embarrass, delay or prejudice a substantial right or the disposition of the matter, the Board may sever the proceeding and order separate hearings or make such other order as may be expedient.

§ 65.48 Joint hearing of proceedings.

The Board may, by resolution, direct that two or more proceedings, growing out of the same or similar set of facts, be heard together, without consolidation, provided that no substantial right is thereby prejudiced.

§ 65.49 Dismissal.

A proceeding may be dismissed for cause upon motion of a party or the Board.

§ 65.50 Ex parte communication.

§ 65.51 Restrictions as to participation by the Commissioner of Labor.

In any proceeding noticed pursuant to these rules, the Commissioner of Labor shall not participate in or advise with respect to the decision of the Board.

§ 65.52 Inspection and reproduction of documents.

§ 65.53 Restrictions with respect to former employees.

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