ment 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 determination and notice of decision upon review.

(a) Review. If, within 1 year after notice of an initial determination has been communicated to a claimant, the claimant, 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 official 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 §§ 320.12 and 320.15. [Board Order 66-84, 31 F.R. 10180, July 28, 1966]

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]

§ 320.15 Execution and filing of appeal from initial determination.

(a) Execution. An appeal from initial 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 filed 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, 31 F.R. 10180, July 28, 1966]

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.

§ 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. 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.

In

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

§ 320.32 Effect of decision of referee.

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]

§ 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.

§ 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 filed 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 appeal 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 evidence; and (c) the Board may designate any employee of the Board to take additional evidence, and to report his findings 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 a referee's report, in an appeal involving employee status or the creditability of 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.

Notice

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. of such decision, together with the Board's findings of fact and conclusions of law in connection therewith, shall, within 15 days from the date on which the decision is made, be mailed to the parties at the latest addresses furnished by them. Subject only to judicial review in accordance with § 320.45, the decision of the Board shall be final and conclusive for all purposes:

(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

Upon being notified of a decision of the Board made (a) upon review, on the Board's own motion, of a decision of a referee, or (b) upon an appeal to the Board, the party may obtain judicial review of such final decision, by filing a petition for review within ninety days after the date on which notice of such decision was mailed to him, or within such further time as the Board may allow, 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. § 320.48 Representatives of parties.

In the event a party to any proceeding within the Board, under the preceding regulations in this part, desires to be represented by another person, he shall file with the Board prior to the time of such representation a power of attorney signed by him and naming such other person as the person authorized to represent him: Provided, however, That without requiring such power of attorney the Board may recognize as the duly authorized representative of the claimant the person designated by the claimant's railway labor organization to act in behalf of members of that organization on such matters whenever such representative acts or appears for such claimant. § 320.50 Adjudicating office.

As used in this part the term "adjudicating office" means any subordinate unit of the Board which may be authorized to make initial determinations with re

no

Subject to the provisions of section 4 of this act, (1) a day of unemployment, with respect to any employee, means a calendar day with respect to which * remuneration is payable or accrues to him * * *; and (2) a "day of sickness", with respect to any employee, means a calendar day * with respect to which * * * nộ remuneration is payable or accrues to him *** Provided, however, That "subsidiary remuneration", as hereinafter defined in this subsection, shall not be considered remuneration for the purpose of this subsection except with respect to an employee whose base-year compensation, exclusive of earnings from the position or occupation in which he earned such subsidiary remuneration, is less than $1,000 *

For the purpose of this subsection, the term "subsidiary remuneration" means, with respect to any employee, remuneration not in excess of an average of three dollars a day for the period with respect to which such remuneration is payable or accrues, if the work from which the remuneration is derived (1) requires substantially less than full time as determined by generally prevailing standards, and (ii) is susceptible of performance at such times and under such circumstances as not to be inconsistent with the holding of normal full-time employment in another occupation. (Section 1(k), Railroad Unemployment Insurance Act.)

The term "compensation” means any form of money remuneration, including pay for time lost but excluding tips, paid for serv

ices rendered as an employee to one or more employers, or as an employee representative ... A payment made by an employer to an individual through the employer's payroll shall be presumed, in the absence of evidence to the contrary, to be compensation for service rendered by such individual as an employee of the employer in the period with respect to which the payment is made. An employee shall be deemed to be paid, "for time lost" the amount he is paid by an employer with respect to an identifiable period of absence from the active service of the employer, including absence on account of personal injury, and the amount he is paid by the employer for loss of earnings resulting from his displacement to a less remunerative position or occupation. If a payment is made by an employer with respect to a personal injury and includes pay for time lost, the total payment shall be deemed to be paid for time lost unless, at the time of payment, a part of such payment is specifically apportioned to factors other than time lost, in which event only such part of the payment as is not so apportioned shall be deemed to be paid for time lost. (Section 1(1), Railroad Unemployment Insurance Act.)

The term "remuneration" means pay for services for hire, including pay for time lost, and tips, but pay for time lost shall be deemed earned on the day on which such time is lost. The term "remuneration" includes also earned income other than for services for hire if the accrual thereof in whole or in part is ascertainable with respect to a particular day or particular days. The term "remuneration" does not include (1) the voluntary payment by another, without deduction from the pay of an employee, of any tax or contribution now or hereafter imposed with respect to the remuneration of such employee, or (ii) any money payments received pursuant to any nongovernmental plan for unemployment insurance, maternity insurance, or sickness insurance. (Section 1(1), Railroad Unemployment Insurance Act.)

¡Board Order 59-73, 24 F.R. 2487, Mar. 31, 1959, as amended by Board Order 59-199, 24 F.R. 9478, Nov. 25, 1959; Board Order 68-72, 33 F.R. 11114, Aug. 6, 1968]

§ 322.2 General definition of "remuneration".

"Remuneration" includes all pay for services for hire and all other earned income payable or accruing with respect to any day. Income shall be deemed earned if it is payable or accrues in consideration of services and if such services were in turn rendered in consideration of the income payable or accruing.

"Remuneration" shall include income in the form of a commodity, service, or privilege if, before the performance of the service for which it is payment, the parties have agreed (a) upon the value of such commodity, service, or privilege, and (b) that such part of the amount agreed upon to be paid may be paid in the form of such commodity, service, or privilege.

§ 322.3

Determining the days with respect to which remuneration is payable or accrues.

(a) Payable or accrues. In determining whether remuneration is "payable" or "accrues" to an employee with respect to a claimed day or days, consideration shall be given to such factors as (1) the intention of the parties with respect to the remuneration as indicated in employment contracts, in any expressed or implied agreements between the parties, and by the actions of the parties; (2) any evidence, such as vouchers or agreement of the parties, relating the remuneration to a particular period of time or indicating that the remuneration accrued or became payable without reference to any particular period of time; (3) the measure by which the amount of remuneration was determined; (4) whether the amount of the remuneration is proportionate to the length of time needed to render the service for which it is payment; (5) whether the service for which the remuneration accrues is required to be rendered on any particular day or particular days; and (6) whether a specified amount of the remuneration is contingent upon a result accomplished on a particular day or particular days.

(b) Layover days. Remuneration shall not be regarded as payable or accruing with respect to "layover" days, solely because they are termed "layover" days.

(c) Guaranteed earnings. A payment under a plan which guarantees an amount of earnings or mileage in a specified period is remuneration with respect to each day in the specified period. § 322.4 Consideration of evidence.

(a) Initial proof. A claimant's certification or statement on a claim form provided by the Board to the effect that