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within five days after the making thereof shall send a copy of the report to each party appearing in the proceeding by mailing such copy to him at the address stated in his appearance. Such report shall contain a statement of (1) the issue or issues raised, (2) the evidence submitted, (3) findings of fact, (4) conclusions of law, and (5) a recommended determination.

(d) Any party to the proceeding may, within twenty days after the mailing to him of a copy of the examiner's report, file with the Board, and serve upon other parties by mailing to their addresses as stated in their appearances, such exceptions in writing as he desires to make to the examiner's findings of fact and conclusions of law. Each exception shall specifically designate the particular finding of fact or conclusion of law to which exception is taken, and shall set forth in detail the grounds of the exception. General exceptions and exceptions not specifically directed to particular findings of fact or conclusions of law will not be considered. Each party shall have ten days after the receipt of exceptions taken by other parties in which to Ale with the Board replies to the exceptions. The Board may, upon the application of any party and for cause shown, extend the time for filing and serving of exceptions or filing of replies thereto. The examiner's report shall be advisory but shall be presumed to be correct. Findings of fact to which no exceptions are taken will, subject only to the power of the Board to reject or modify, stand confirmed.

(e) The Board will render its decision upon the record and upon the basis of the examiner's report and such exceptions and replies thereto as are made. Further argument will not be permitted except upon a showing by any party that he has arguments to present which for valid reasons he was unable to present at an earlier stage, and in cases in which the Board requests further elaboration of arguments. In such cases, the further argument shall be submitted orally or in writing, as the Board may indicate in each case, and shall be subject to such restrictions as to form, subject matter, length, and time as the Board may indicate. The decision of the Board will be communicated to all parties to the proceeding within fifteen days after it has been made by mailing a copy of the decision to each such party at the address furnished by him.

(f) The decision of the Board, with respect to all issues determined therein, shall be final and conclusive for all purposes, and shall conclusively establish all rights and obligations, arising under any act administered by the Board, of every person notified of his right to participate in the proceeding.

(g) Any properly interested party notified of his right to participate in the proceeding may, as provided in section 5 (c) of the Railroad Unemployment Insurance Act, and in accordance with the provisions of section 5 (f) of the Act, obtain judicial review of a final decision of the Board, under this section, by which he claims to be aggrieved, by filing a petition for review in the proper court within ninety days after the mailing to him of notice of such decision, or within such further time as the Board may allow. Such petition for review must be filed in the United States court of appeals for the circuit in which the party resides or will have had his principal place of business or principal executive ofice, or in the United States Court of Appeals for the Seventh Circuit or in the Court of Appeals for the District of Columbia.

(h) Insofar as applicable and not inconsistent with the preceding provisions of this section, the provisions of $ $ 250.7 to 250.16 of this chapter shall be followed in any proceeding under this section.

PART 320-INITIAL DETERMINATIONS

UNDER THE RAILROAD UNEMPLOY-
MENT INSURANCE ACT AND RE-
VIEWS OF AND APPEALS FROM

SUCH DETERMINATIONS 1 Sec. 320.1 Statutory provisions. 820.5 Initial determinations with respect

to claims. 320.8 Notice of initial determination. 320.10 Review of initial determination and

notice of decision upon review. 320.12 Appeal from initial determination. 320.15 Execution and filing of appeal from

initial determination. 320.18 Referee. 320.20 Powers of referee. 320.22 Notice of hearing. 320.25 Hearing of appeal. 320.28 Development of record. 320.30 Decision or report of referee. 820.82 Effect of decision of referee. 320.35 Review of decision of referee on mo

tion of Board.

181 F.R. 10180, July 28, 1966.

provide for a hearing on its own motion. The Board shall prescribe regulations governing the appeals provided for in this paragraph and for decisions upon such appeal.

Sec. 320.38 Appeal to Board from decision of

referee. 320.39 Execution and Aling of appeal to

Board from decision of referee. 320.40 Procedure before Board on appeal

from decision of referee. 320.41 Procedure before Board after submis

sion of report by referee. 320.42 Decision of Board. 320.45 Judicial review. 320.48 Representatives of parties. 320.50 Adjudicating office.

AUTHORITY: The provisions of this part 320 issued under sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362.

SOURCE: The provisions of this Part 320 contained in Board Order 58-142, 23 F.R. 9090, Nov. 22, 1968, unless otherwise noted. § 320.1 Statutory provisions.

Claims for benefits and appeals from determinations with respect thereto shall be made in accordance with such regulations as the Board shall prescribe. * * • (Section 5 (a). Railroad Unemployment Insurance Act.)

The Board is authorized and directed to make findings of fact with respect to any claim for benefits and to make decisions as to the right of any claimant to benefits. The Board is further authorized to hold such bearings, to conduct such investigations and other proceedings, and to establish, by regulations or otherwise, such procedures as it may deem necessary or proper for the determination of a right to benefits. (Section 5 (b), Railroad Unemployment Insurance Act.)

Each qualified employee whose claim for benefits has been denied in whole or in part upon an initial determination with respect thereto upon a basis other than one which is reviewable pursuant to one of the succeeding paragraphs of this subsection, shall be granted an opportunity for a fair hearing thereon before a referee or such other reviewing body as the Board may establish or assign thereto.

Any claimant whose claim for benefits has been denied in an initial determination with respect thereto upon the basis of his not being a qualified employee, and any claimant who contends that under an initial determination of his claim he has been awarded benefits at less than the proper rate, may appeal to the Board for the review of such determination. Thereupon the Board shall review the determination and for such re. view may designate one of its officers or employees to receive evidence and to report to the Board thereon together with recommendations. In any such case the Board or the person só designated shall, by publication or otherwise notify all parties properly interested of their right to participate in the proceeding and, if a hearing is to be held, of the time and place of the hearing. At the request of any party properly interested the Board shall provide for a hearing, and may

Final decision of the Board in the cases provided for in the preceding two paragraphs shall be communicated to the claimant and to the other interested parties within Afteen days after it is made. Any properly interested party notified, as hereinabove provided, of his right to participate in the proceedings may obtain a review of any such decision by which he claims to be aggrieved or the determination of any issue therein in the manner provided in subsection (1) of this section with respect to the review of the Board's decisions upon claims for benefits and subject to all provisions of law applicable to the review of such decisions. Subject only to such review, the decision of the Board upon all issues determined in such decision shall be final and conclusive for all purposes and shall conclusively establish all rights and obligations, arising under this act, of every party notified as hereinabove provided of his right to participate in the proceedings.

Any issue determinable pursuant to this subsection and subsection (1) of this section shall not be determined in any manner other than pursuant to this subsection and subsection (f).

(Section 5 (c), Railroad Unemployment Insurance Act.)

The Board shall prescribe regulations governing the filing of cases with and the decision of cases by reviewing bodies, and the review of such decisions. The Board may provide for intermediate reviews of such decisions by such bodies as the Board may establish or assign thereto. The Board may (1) on its own motion review a decision of an intermediate reviewing body on the basis of the evidence previously submitted in such case, and may direct the taking of additional evidence, or (11) permit such parties as it finds properly interested in the proceedings to take appeals to the Board. Unless a review or an appeal is had pursuant to this subsection, the decision of an intermediate reviewing body shall, subject to such regulations as the Board may prescribe, be deemed to be the final decision of the Board. (Section 5 (d), Railroad Unemployment Insurance Act.)

In any proceeding other than a court proceeding, the rules of evidence prevailing in courts of law or equity shall not be controlling, but a full and complete record shall be kept of all proceedings and testimony, and the Board's final determination, together with its findings of fact and conclusions of law in connection therewith, shall be communicated to the parties within fifteen days after the date of such final determination. (Section 5 (e), Railroad Unemployment Insurance Act.)

Any claimant, or any railway labor organization organized in accordance with the provisions of the Railway Labor Act, of which claimant is a member, or any other party

aggrieved by a final decision under subsection (c) of this section, may, only after all administrative remedies within the Board will have been avalled of and exhausted, obtain a review of any inal decision of the Board by filing a petition for review within ninety days after the malling of notice of such decision to the claimant or other party, or within such further time as the Board may allow, in the United States court of appeals for the circuit in which the claimant or other party resides or will have had his principal place of business or principal executive office, or in the United States Court of Appeals for the Seventh Circuit or in the Court of Appeals for the District of Columbia. ... (Section 5 (1), Railroad Unemployment Insurance Act.) 8 320.5 Initial determinations with re

spect to claims. Each claim for benefits under the Act shall be adjudicated and the initial determination with respect thereto shall be made by an adjudicating office upon the basis of the application and claim, and any statement or supplements filed in connection therewith, the evidence submitted by the claimant, and evidence otherwise available. Claims shall be adjudicated, and initial determinations shall be made, in accordance with instructions issued by the Director of Unemployment and Sickness Insurance. That part of the benefits claimed which is initially determined to be payable may be paid prior to a final decision with regard to such claim. [Board Order 66–84, 81 F.R. 10180, July 28, 1966) 8 320.8 Notice of initial determination.

Notice of an initial determination which denies in whole or in part a claim for benefits shall contain a brief statement of the grounds for the denial and shall be communicated in writing to the claimant within 15 days after such initial determination is made. Such notice shall be deemed to have been communicated to the claimant when it will have been mailed to him at the latest address furnished by him. (Board Order 66–84, 31 F.R. 10180, July 28, 1966) § 320.10 Review of initial determina

tion and notice of decision upon re

view. (a) Review. If, within 1 year after notice of an initial determination has been communicated to a claimant, the claiment, without filing an appeal in the manner and within the time provided in § 320.15, makes an oral or written request

for a review of the initial determination, the regional director or other oficial designated by the Director of Unemployment and Sickness Insurance shall review the determination, shall take any further action which may be required, and shall decide whether to sustain or reverse such determination.

(b) Notice of decision. Notice of the decision made upon review shall be communicated to the claimant in writing within 15 days after such decision is made. If the effect of the decision is that the claim is still denied in whole or in part, the claimant shall be notified in the communication of his rights to appeal as provided in 88 320.12 and 320.15. (Board Order 66-84, 81 F.R. 10180, July 28, 1966) § 320.12 Appeal from initial determina

tion. Any claimant may appeal from an initial determination denying his claim for benefits in whole or in part whether or not a review of such determination has been made under the provisions of § 320.10 An appeal shall be made by the claimant's filing, in the manner and within the time hereinafter specified, an appeal from initial determination on the form provided by the Board. Unless an appeal from initial determination is filed by the claimant in the manner and within the time provided in § 320.15, all rights to further review of the initial determination shall be forfeited. [Board Order 66–84, 31 F.R. 10180, July 28, 1966) 8 320.15 Execution and filing of appeal

from initial determination. (a) Execution. An appeal from inttial determination shall be filed on the form provided by the Board and shall be executed in accordance with the instructions on the form.

(b) Filing. An appeal from initial determination shall be considered to have been filed when it will have been received in an office of the Board. Such appeal shall be filled within 1 year from the date on which notice of an initial determination is communicated to the claimant or within 30 days from the date on which notice of the decision made upon review is communicated to him, whichever period ends later. (Board Order 66-84, 81 FR. 10180, July 28, 1966)

§ 320.18 Referee.

and relevant, and is material to the Within a reasonable time after a merits of the appeal, the referee shall claimant has filed a properly executed

obtain such evidence upon his own intiaappeal, the Director of Unemployment

tive. The referee shall protect the record and Sickness Insurance shall appoint a

against scandal, impertinence and irreferee to act in the appeal. Such

relevancies, but the technical rules of referee shall not have any interest in the

evidence shall not apply. parties or in the outcome of the pro- § 320.28 Development of record. ceeding, shall not have directly partici

All oral evidence presented at any pated in the initial determination from

hearing shall be reduced to writing. All which the appeal is made, and shall not

evidence presented by any party or by his have any other interest in the matter

duly authorized representative, and all which might prevent a fair and im

evidence developed by the referee, shall partial hearing. In any case in which

be preserved. Such evidence, together employee status or creditability of com

with a record of the arguments, oral or pensation is an issue, the referee shall

written, and the file previously made in receive evidence and report to the Board

the adjudication of the claim, shall conthereon with recommendations. In all

stitute the record. After an appeal from other cases, the referee shall consider

an initial determination is filed, the comand decide the appeal; in each such case

pilation of the record shall be initiated the claimant shall be granted an oppor

by the inclusion therein of the file made tunity for a hearing.

in the adjudication of the claim; the § 320.20 Powers of referee.

compilation of the record shall be kept In the development of an appeal, the

up to date by the prompt addition thereto referee shall have the power to hold

of all parts of the record subsequently hearings, require and compel the at

developed. The entire record at any time tendance of witnesses, administer oaths,

during the pendency of an appeal shall

be available for examination by any take testimony, and make all necessary investigations.

properly interested party or by his duly

authorized representative. $ 320.22 Notice of hearing.

& 320.30 Decision or report of referee. Promptly after being appointed, the

As soon as practicable after the comreferee shall notify all parties properly

pletion of the record, the referee shall interested of their right to participate in

render his decision, or submit his report the proceeding. Upon the scheduling of

to the Board, as may be appropriate in a hearing on an appeal, written notice of

the case. The decision or report shall the hearing, specifying the place and

be based on the record and shall be in time thereof, shall be given to the prop

writing. Such decision shall contain a erly interested parties at least seven days

brief statement of (a) the issue or issues before the date of the hearing, unless

raised, (b) the evidence submitted, (c) such notice is waived by the parties. Such notice may be mailed to the parties

findings of fact, (d) the decision made,

and (e) the reasons therefor. Such reat the latest addresses furnished by them.

port shall contain a statement of (1) the

issue or issues raised, (2) the evidence § 320.25 Hearing of appeal.

submitted, (3) findings of fact, (4) con(a) Manner of conducting hearing.

clusions of law, (5) recommendations as The hearing shall be informal, fair, and

to the decision to be made by the Board, impartial, and shall be conducted in such

and (6) such discussion of the foregoing manner as to ascertain the substantial

as the referee may desire to present to rights of the parties.

the Board. Within 15 days after ren(b) Compilation of evidence. Any

dition of the decision or submission of properly interested party, or his duly

the report, a copy of the decision or reauthorized representative, shall be af

port shall be mailed to each interested forded full opportunity to present fur

party at the last address of record. In ther evidence upon any controversial the case of a report, a copy of the tranquestion of fact, orally or in writing, or script of the hearing, if any was held, by means of exhibits; to examine and shall also be mailed to each interested cross-examine witnesses, and to present party. argument. If, in the judgment of the (Board Order 66-84, 31 F.R. 10181, July 28, referee, evidence not offered is available 1966] 50-080 07110

285

8 320.32 Effect of decision of referec. any employee of the Board to take addiA decision of the referee, subject to

tional evidence, and to report his findreview as hereinafter provided, shall be

ings to the Board. Any such additional

evidence shall be submitted in such binding upon any adjudicating office: (a) With respect to the initial de

manner as the Board may indicate and

shall be included in the record. termination involved, and

(b) With respect to other initial de- § 320.41 Procedure before Board after terminations, irrespective of whether submission of report by referee. they have been appealed, which (1) de

(a) After submission to the Board of nied in whole or in part claims made by

a referee's report, in an appeal involving the same claimant in the same benefit

employee status or the creditability or year and (2) were based on the same is

compensation, any party to the proceedsue or issues determined in the decision

ing may, within twenty days after the of the referee.

mailing to him of a copy of the report, (Board Order 66–84, 31 F.R. 10181, July 28, file with the Board and serve upon other 1966)

parties by mailing to their last addresses $ 320.35 Review of decision of referee of record such exceptions in writing as on motion of Board.

he desires to make to the referee's find

ings of fact and conclusions of law. The Board may, on its own motion, review a decision of the referee on the

Each exception shall specifically desigbasis of the evidence previously sub

nate the particular finding of fact or mitted in the case, and may designate

conclusion of law to which exception is

taken, and shall set forth in detail the any employee of the Board to take additional evidence and to report his findings

grounds of the exception. General ex

ceptions and exceptions not specifically to the Board.

directed to particular findings of fact or § 320.38 Appeal to Board from decision conclusions of law will not be considered. of referee.

Each party shall have ten days after the Any claimant, or any railway labor or- receipt of exceptions taken by other ganization organized in accordance with parties in which to file with the Board the provisions of the Railway Labor Act,

replies to the exceptions. The Board of which the claimant is a member, or

may, upon the application of any party any other party aggrieved by a decision and for cause shown, extend the time for of the referee may appeal to the Board

filing and serving of exceptions or filing for review of the decision.

of replies thereto. The referee's report

shall be advisory but shall be presumed 8 320.39 Execution and filing of appeal

to be correct. Findings of fact to which to Board from decision of referee.

no exceptions are taken will, subject only An appeal to the Board from a decision to the power of the Board to reject or of a referee shall be filed on the form modify, stand confirmed. provided by the Board and shall be exe- (b) Further argument will not be percuted in accordance with the instruc- mitted except upon a showing by any tions on the form. Such appeal shall be party that he has arguments to present filed within ninety days from the date which for valid reasons he was unable upon which notice of the decision of the to present at an earlier stage, and in referee was mailed to the parties.

cases in which the Board requests further

elaboration of arguments. In such cases, § 320.40 Procedure before Board on ap

the further argument shall be submitted peal from decision of referee.

orally or in writing, as the Board may If an appeal to the Board from a de- indicate in each case, and shall be subcision of a referee is filled, the parties ject to such restrictions as to form, subshall not have the right to submit addi- ject matter, length, and time as the tional evidence, except that (a) the

Board may indicate. Board may permit the submission of additional evidence upon a showing by any

§ 320.42 Decision of Board. properly interested party that he has The decision of the Board, whether on additional evidence to present which, for an appeal to the Board from a decision of valid reasons, he was unable to present a referee, or after submission of a report at any earlier stage; (b) the Board may by a referee, shall be made upon the request the submission of additional evi. basis of the record established in accorddence; and (c) the Board may designate ance with the foregoing sections. Notice

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