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 68.

PART 68

REGISTRATION AND REVOCATION PROCEEDINGS FOR
UNION LABELS, BRANDS AND MARKS

Section § 68.1 Application.

    (a)                The provisions of this Part relate to Board proceedings pursuant to Section 208 of the Labor Law for objections to the registration of union labels, brands and marks, and to revoke such a registration if granted improperly or obtained fraudulently.

    (b)               See Part 65 of this Subchapter for general rules of procedure and practice not specified in this Part.

    (c)                Registration proceedings.

    (1) Practically every labor organization has adopted a device in the nature of a label or mark to identify the products of its members. Section 208 authorizes the registration of such devices by the Commissioner of Labor.

    (2) The rules and forms governing the registration and filing of such labels, brands and marks may be obtained from the Commissioner of Labor's office located in Building 12, State Office Building Campus, Albany, N.Y. 12240, or at 345 Hudson Street, New York, N.Y. 10014. Notice of the filing of such application shall be given by the commissioner to interested persons and unions in such manner as the commissioner shall by rule prescribe.

    (3)               Within 20 days following such notice by the commissioner, any union or aggrieved person may submit to the commissioner a written objection to the registration of the device. If no objection is submitted, the commissioner may register the device and issue a certificate of registration.

    (4)               Objections duly filed with the commissioner are promptly referred to the Board for a determination on whether the registration should be granted or denied.

    (5)               The Board may deny registration of a device on any of the following grounds:

        (i)                  That the union or association of employees filing the application for registration is not a bona fide union;

        (ii)                That the union or association of employees filing the application for registration is not the rightful owner thereof;

        (iii)               That the union or association of employees filing the application for registration has made misrepresentations concerning the device; or

        (iv)              That the device sought to be registered by the union or association of employees is so similar to a device previously registered by a union or association of employees that it is calculated to deceive.

    (d) Revocation proceedings. Section 208, subdivision 4, provides:

      "4. On petition of a union or aggrieved person, the registration of any device may be revoked by the Board if it determines that the registration was granted improperly or was obtained fraudulently."

(§ 68.2 How Proceeding to be Commenced.

    (a)                After objection to registration is filed (see section 68.1[c] of this Part), or if revocation of a registered device is sought, such proceeding is initiated by the filing of a petition with the Board. Thereafter, a hearing is held at which interested parties are afforded full opportunity to present any evidence which may be relevant or have a bearing upon the issues raised in the petition.

    (b)               A proceeding under this Part shall be commenced by filing with the Board, at its Albany office, the original and three conformed copies of a petition executed in accordance with the provisions of Part 66 of this subchapter.

§ 68.3 Service of Petition on Interested Parties.

               Upon the filing of a petition as herein provided, the Board shall serve a copy thereof by mail or delivery to the Commissioner of Labor and to the union or association of employees which has filed or submitted for filing or registration the label or device in issue.

§ 68.4 Answer to Petition; Time for Answer; Contents of Answer; Service and Filing of Answer.

    (a)                The Commissioner of Labor and the union or association of employees which has filed or submitted the device shall, within 30 days after receipt of the petition, file their answers with the Board or move with respect to the petition.

    (b)               The respondents shall each serve personally or by mail one copy of the answer upon petitioner, or the attorney or authorized representative of record, and shall file the original with the Board with proof of such service.

    (c)                Each answer shall be so drawn as to advise the petitioner and the Board of the nature of the defense in reasonable detail. It shall contain a specific admission, denial or explanation of each of the material facts alleged in the petition. Such a denial may be upon information and belief or a denial of knowledge or information sufficient to form a belief as to the truth of the allegation. The answer must also contain a statement of any facts upon which the respondent relies for an affirmative defense.

§ 68.5 Reply to Answer; Time for Reply; Contents of Reply; Service of Reply.

    (a)                If the Petitioner desires to dispute any allegations in an answer, other than denials, or reply to any affirmative defense, a reply shall be filed with the Roard, with proof of service of a copy thereof upon the Respondents.

    (b)               Such reply shall be served and filed within 10 days after service of the answer.

    (c)             The reply shall contain clear and concise factual allegations and shall contain a specific admission, denial or explanation of each of the material facts alleged in the answer. Such a denial may be upon information and belief, or may be a denial of knowledge or information sufficient to form a belief.

§ 68.6 Amendment of Pleadings.

             The petition may be amended at any time prior to the service of the answer. After an answer has been served or the time within which to serve an answer has elapsed, a pleading may be amended only by leave of the Board. All applications to amend must be accompanied by the proposed amendment and must be made upon not less than ten (10) days' prior written notice.

§ 68.7 Amendment of Pleadings to Conform to Proof.

             A motion to amend a pleading to conform to the proof may be made at any time before the conclusion of the hearing.

§ 68.8 Motion to Dismiss Petition; When Made; Grounds.

    (a)    Within thirty (30) days after receipt of the petition, any respondent may, upon ten (10) days' written notice of motion, move as of right for an order dismissing the petition where it appears that:

      (1)               the Board lacks jurisdiction in the matter;

      (2)               the Petitioner is not an aggrieved party; or

      (3)               the petition fails to comply with the provisions of section 208.

    (b)               Thereafter, such motion shall be made only by permission of the Board.

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