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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 office, 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 88 250.7 to 250.16 of this chapter shall be followed in any proceeding under this section.

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Sec.

320.1 Statutory provisions. 820.6 Initial determinations with respect

to claims. 820.8 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. 820.22 Notice of hearing. 820.25 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. 820.38 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. 320.46 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, 1958, 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 hearings, 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 review may designate one of its oficers or employees to receive evidence and to report to the Board thereon together with recommendations. In any such case the Board or the person so 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 fifteen 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 (1). (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 (1) 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 18 a member, or any other party

aggrieved by a final decision under subsec- for a review of the initial determination, tion (c) of this section, may, only after all the regional director or other oficial des. administrative remedies within the Board

ignated by the Director of Unemployment will have been avalled of and exhausted, obtain a review of any inal decision of the

and Sickness Insurance shall review the Board by Aling a petition for review within determination, shall take any further ninety days after the mailing of notice of action which may be required, and shall such decision to the claimant or other party, decide whether to sustain or reverse such or within such further time as the Board may determination. allow, in the United States court of appeals

(b) Notice of decision. Notice of the for the circuit in which the claimant or other

decision made upon review shall be comparty resides or will have had his principal

municated to the claimant in writing place of business or principal executive of fice, or in the United States Court of Appeals

within 15 days after such decision is for the Seventh Circuit or in the Court of made. If the effect of the decision is Appeals for the District of Columbia. •.. that the claim is still denied in whole or (Section 5 (1), Railroad Unemployment In in part, the claimant shall be notified in surance Act.)

the communication of his rights to appeal & 320.5 Initial determinations with re

as provided in 88 320.12 and 320.15. spect to claims.

[Board Order 66-84, 81 F.R. 10180, July 28, Each claim for benefits under the Act

1966) shall be adjudicated and the initial de

$ 320.12 Appeal from initial determinatermination with respect thereto shall

tion. be made by an adjudicating ofice upon

Any claimant may appeal from an ini. the basis of the application and claim,

tial determination denying his claim for and any statement or supplements Alled

benefits in whole or in part whether or in connection therewith, the evidence

not a review of such determination has submitted by the claimant, and evidence

been made under the provisions of otherwise available. Claims shall be adjudicated, and initial determinations

$ 320.10 An appeal shall be made by the shall be made, in accordance with in

claimant's filing, in the manner and structions issued by the Director of Un within the time hereinafter specified, an employment and sickness Insurance, appeal from initial determination on the That part of the benefits claimed which form provided by the Board. Unless an is initially determined to be payable may appeal from initial determination is filed be paid prior to a final decision with by the claimant in the manner and withregard to such claim.

in the time provided in § 320.15, all rights (Board Order 66–84, 81 F.R. 10180, July 28, to further review of the initial determi1966)

nation shall be forfeited. § 320.8 Notice of initial determination. [Board Order 66–84, 31 F.R. 10180, July 28, Notice of an initial determination

1966) which denies in whole or in part a claim & 320.15 Execution and filing of appeal for benefits shall contain a brief state

from initial determination. ment of the grounds for the denial and

(a) Execution. An appeal from intshall be communicated in writing to the

tial determination shall be filled on the claimant within 15 days after such initial determination is made. Such notice

form provided by the Board and shall be shall be deemed to have been communi

executed in accordance with the instruccated to the claimant when it will have

tions on the form. been mailed to him at the latest address (b) Filing. An appeal from initial furnished by him.

determination shall be considered to (Board Order 66–84, 31 F.R. 10180, July 28, have been filed when it will have been re1966]

ceived in an ofice of the Board. Such § 320.10 Review of initial determina appeal shall be filed within 1 year from

tion and notice of decision upon re- the date on which notice of an initial view.

determination is communicated to the (a) Review. If, within 1 year after no claimant or within 30 days from the date tice of an initial determination has been on which notice of the decision made communicated to a claimant, the claim- upon review is communicated to him, ant, without filing an appeal in the man whichever period ends later. ner and within the time provided in (Board Order 66-84, 81 FR. 10180, July 28, § 320.15, makes an oral or written request 1966]

& 320.18 Referee.

Within a reasonable time after a claimant has filed a properly executed appeal, the Director of Unemployment and Sickness Insurance shall appoint a referee to act in the appeal. Such referee shall not have any interest in the parties or in the outcome of the proceeding, shall not have directly participated in the initial determination from which the appeal is made, and shall not have any other interest in the matter which might prevent a fair and impartial hearing. In any case in which employee status or creditability of compensation is an issue, the referee shall receive evidence and report to the Board thereon with recommendations. In all other cases, the referee shall consider and decide the appeal; in each such case the claimant shall be granted an opportunity for a hearing. $ 320.20 Powers of referee.

In the development of an appeal, the referee shall have the power to hold hearings, require and compel the attendance of witnesses, administer oaths, take testimony, and make all necessary investigations. 8 320.22 Notice of hearing.

Promptly after being appointed, the referee shall notify all parties properly interested of their right to participate in the proceeding. Upon the scheduling of a hearing on an appeal, written notice of the hearing, specifying the place and time thereof, shall be given to the properly interested parties at least seven days before the date of the hearing, unless such notice is waived by the parties. Such notice may be mailed to the parties at the latest addresses furnished by them. & 320.25 Hearing of appeal.

(a) Manner of conducting hearing. The hearing shall be informal, fair, and impartial, and shall be conducted in such manner as to ascertain the substantial rights of the parties.

(b) Compilation of evidence. Any properly interested party, or his duly authorized representative, shall be afforded full opportunity to present further evidence upon any controversial question of fact, orally or in writing, or by means of exhibits; to examine and cross-examine witnesses, and to present argument. If, in the judgment of the referee, evidence not offered is available

and relevant, and is material to the merits of the appeal, the referee shall obtain such evidence upon his own intiative. The referee shall protect the record against scandal, impertinence and irrelevancies, but the technical rules of evidence shall not apply. § 320.28 Development of record.

All oral evidence presented at any hearing shall be reduced to writing. All evidence presented by any party or by his duly authorized representative, and all evidence developed by the referee, shall be preserved. Such evidence, together with a record of the arguments, oral or written, and the file previously made in the adjudication of the claim, shall constitute the record. After an appeal from an initial determination is filed, the compilation of the record shall be initiated by the inclusion therein of the file made in the adjudication of the claim; the compilation of the record shall be kept up to date by the prompt addition thereto of all parts of the record subsequently developed. The entire record at any time during the pendency of an appeal shall be available for examination by any properly interested party or by his duly authorized representative. § 320.30 Decision or report of referee.

As soon as practicable after the completion of the record, the referee shall render his decision, or submit his report to the Board, as may be appropriate in the case. The decision or report shall be based on the record and shall be in writing. Such decision shall contain a brief statement of (a) the issue or issues raised, (b) the evidence submitted, (c) findings of fact, (d) the decision made, and (e) the reasons therefor. 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, (5) recommendations as to the decision to be made by the Board, and (6) such discussion of the foregoing as the referee may desire to present to the Board. Within 15 days after rendition of the decision or submission of the report, a copy of the decision or report shall be mailed to each interested party at the last address of record. In the case of a report, a copy of the transcript of the hearing, if any was held, shall also be mailed to each interested party.

Board Order 66-84, 31 F.R. 10181, July 28, 1966]

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8 320.32 Effect of decision of referec.

A decision of the referee, subject to review as hereinafter provided, shall be binding upon any adjudicating office:

(a) With respect to the initial determination involved, and

(b) With respect to other initial determinations, irrespective of whether they have been appealed, which (1) denied in whole or in part claims made by the same claimant in the same benefit year and (2) were based on the same issue or issues determined in the decision of the referee. (Board Order 66–84, 31 F.R. 10181, July 28, 1966) 8 320.35 Review of decision of referee

on motion of Board. The Board may, on its own motion, review a decision of the referee on the basis of the evidence previously submitted in the case, and may designate any employee of the Board to take additional evidence and to report his findings to the Board 8 320.38 Appeal to Board from decision

of referee. Any claimant, or any railway labor organization organized in accordance with the provisions of the Railway Labor Act, of which the claimant is a member. or any other party aggrieved by a decision of the referee may appeal to the Board for review of the decision. & 320.39 Execution and filing of appeal

to Board from decision of referee. An appeal to the Board from a decision of a referee shall be filed on the form provided by the Board and shall be executed in accordance with the instructions on the form. Such appeal shall be filled within ninety days from the date upon which notice of the decision of the referee was mailed to the parties. $ 320.40 Procedure before Board on ap

peal from decision of referee. If an appeal to the Board from a decision of a referee is filed, the parties shall not have the right to submit additional evidence, except that (a) the Board may permit the submission of additional evidence upon a showing by any properly interested party that he has additional evidence to present which, for valid reasons, he was unable to present at any earlier stage; (b) the Board may request the submission of additional evi. dence; and (c) the Board may designate

any employee of the Board to take additional evidence, and to report his find. ings to the Board. “Any such additional evidence shall be submitted in such manner as the Board may indicate and shall be included in the record. & 320.41 Procedure before Board after

submission of report by referee. (a) After submission to the Board of & referee's report, in an appeal involving employee status or the creditability OI compensation, any party to the proceeding may, within twenty days after the mailing to him of a copy of the report, file with the Board and serve upon other parties by mailing to their last addresses of record such exceptions in writing as he desires to make to the referee'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 file 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 referee'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

(b) 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. § 320.42 Decision of Board.

The decision of the Board, whether on an appeal to the Board from a decision of a referee, or after submission of a report by a referee, shall be made upon the basis of the record established in accordance with the foregoing sections. Notice

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