1. There is hereby created in the
department of labor a board, to be known as the industrial board of
appeals, which shall be composed of five members, at least one of whom
shall be a lawyer. Of the first members of the board, two shall be
designated by the governor from among the members of the board of
standards and appeals in office on the day preceding the effective date
of this act, who shall serve for terms expiring on December
thirty-first, nineteen hundred seventy-seven, and three shall be
appointed by the governor, with the advice and consent of the senate,
two of whom shall be appointed for terms expiring on December
thirty-first, nineteen hundred seventy-six, and one of whom shall be
appointed for a term expiring on December thirty-first, nineteen hundred
seventy-eight. Their successors shall be appointed by the governor, with
the advice and consent of the senate, for terms of six years, except
that if a vacancy occurs otherwise than by expiration of term, it shall
be filled for the unexpired term. The governor shall designate one
member to serve as chairman of the board. The governor may remove a
member of the board for inefficiency, neglect of duty or misconduct in
office after giving him a copy of the charges and an opportunity of
being publicly heard in person or by counsel on not less than ten days
notice. If a member of the board be removed the governor shall file with
the department of state a record of his proceedings in respect of such
removal and his findings therein.
2. The members of the board shall receive compensation as determined
by the governor within the limits of the appropriation made therefor.
The chairman shall devote his entire time to the duties of his office
and shall not hold any other public office nor engage in any other
business, vocation or employment. The reasonable and necessary traveling
and other expenses of the members of the board and other officers and
employees of the board, while actually engaged in the performance of
their duties shall be paid from the state treasury upon the audit and
warrant of the comptroller, upon vouchers approved by the chairman.
3. The industrial commissioner shall detail to the board such
employees as shall be reasonably necessary to perform the duties of the
board and shall fix their compensation within the limits of the
appropriation made therefor.
4. The principal office of the board shall be in the county of Albany,
but it may meet and exercise any or all of its powers at any other place
within the state.
5. (a) The board shall not be bound by technical rules of procedure
and evidence and shall conduct all hearings according to procedure
prescribed by the board.
(b) The board may designate one or more of its members or competent
employees to hold a hearing or investigation relating to any matter
pertaining to the execution of its functions, and to report to the
(c) The board by one or more members shall have the power:
(1) To administer oaths and take affidavits in matters relating to the
performance of its functions under this chapter;
(2) To issue subpoenas for and compel the attendance of witnesses and
the production of books, contracts, papers, documents and other
(3) To hear testimony and take or cause to be taken depositions of
witnesses residing within or without this state in the manner prescribed
by law for like depositions in civil actions in the supreme court.
Subpoenas and commissions to take testimony shall be issued under the
seal of the department.
8. Notwithstanding any other provision of this chapter or any other
law, neither the industrial commissioner nor any board or other agency
of the department of labor shall in any way direct, review, modify or
reverse any decision or finding of the board, nor shall the industrial
commissioner or any board or other agency of the department of labor
supervise or control the board in the exercise of any powers or in the
performance of its duties or functions under this chapter.
§ 101. Review by industrial board of appeals.
1. Except where
otherwise prescribed by law, any person in interest or his duly
authorized agent may petition the board for a review of the validity or
reasonableness of any rule, regulation or order made by the commissioner
under the provisions of this chapter. Such petition shall be filed with
the board no later than sixty days after the issuance of such rule,
regulation or order.
2. The petition shall be filed with the board in accordance with such
rules as the board shall prescribe, and shall state the rule,
regulation, or order proposed to be reviewed and in what respects it is
claimed to be invalid or unreasonable. Any objections to the rule,
regulation or order not raised in such appeal shall be deemed waived.
The board may join in one proceeding all petitions alleging invalidity
or unreasonableness of substantially similar rules, regulations or
orders. Except as otherwise prescribed by any provision of this chapter
or any other law, the filing of such petition may, in the discretion of
the board, operate to stay all proceedings against the petitioner under
such rule, regulation or order until the determination of such petition.
3. If the board finds that the rule, regulation or order, or any part
thereof, is invalid or unreasonable it shall revoke, amend or modify the
§ 102. Review by court.
1. The decision of the board in a proceeding
under section one hundred one of this chapter shall be final except that
such decision shall be subject to appeal by an aggrieved party in a
proceeding under article seventy-eight of the civil practice law and
rules for judicial review, if such proceeding is commenced within sixty
days after the decision is issued.
2. The commissioner shall be considered a party entitled, if
aggrieved, to seek judicial review under this section.
§ 103. Limited review of provisions of chapter and of rules,
regulations and orders.
1. Every provision of this chapter and of the
rules and regulations made in pursuance thereof, and every order
directing compliance therewith, shall be valid unless declared invalid
in a proceeding brought under the provisions of this chapter. Except as
otherwise provided in this chapter, no court shall have jurisdiction to
review or annul any such provision, rule, regulation or order or to
restrain or interfere with its enforcement.
2. Every such provision, rule, regulation or order shall in a
prosecution or action to impose a penalty for its violation be deemed
valid unless prior thereto such provision, rule, regulation or order has
been revoked or modified by the board or annulled by a court, or unless
a proceeding under this article is pending, in which case the
prosecution or action shall be stayed by the court pending the final
determination thereof. If any such prosecution or action is commenced
against a defendant who has not previously been served with an order to
comply with such provision, rule, regulation or order or who has been
served with such an order but has not had a reasonable opportunity to
comply therewith, and if within five days the defendant commences
proceedings under the provisions of this article, the prosecution or
action shall be stayed as if such proceeding were pending at the time it
was commenced. The provisions in this subdivision relating to court
stays shall be subject to any provision in any other section of this
chapter relating to stays of proceedings or actions.
§ 104. Corporate instruments; inquiry by board.
Whenever any corporate
instrument is submitted to the board for approval in accordance with the
requirements of any statute, the board shall make such inquiry as it may
deem advisable, and shall order a hearing, if necessary, in accordance
with such rules as it shall prescribe, to determine whether or not the
purposes of the proposed corporation are in all respects consistent with
public policy and the labor law, and whether the corporate name is in
all respects consistent with its purposes and activities or tends to be
misleading. Notice of the time and place of such hearing shall be given
to the applicant and to such other persons as the board may determine.