1030. Occupational Safety and Health Board

CHAPTER 1030-1. GENERAL PROVISIONS

1030-1-1 REPEALED.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978. Repealed by Public Chapter 969; effective July 1, 1984.

1030-1-2 SCOPE OF RULES; APPLICABILITY OF TENNESSEE RULES OF CIVIL PROCEDURE.

(1) These rules shall govern all proceedings before the Commission and its Administrative Judge.

(2) In the absence of a specific provision, procedure shall be in accordance with the Tennessee Rules of Civil Procedure.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-1-3 USE OF GENDER AND NUMBER.

(1) Words importing the singular number may extend and be applied to the plural and vice versa.

(2) Words importing the masculine gender may be applied to the feminine gender.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-1-4 COMPUTATION OF TIME.

(1) In computing any period of time prescribed or allowed in these Rules, (Chapter 1030-1 through Chapter 1030-7) the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

(2) Where service of a pleading or document is by mail pursuant to Rule 1030-1-7, 3 days shall be added to the time allowed by these rules for the filing of a responsive pleading.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-1-5 EXTENSIONS OF TIME.

Requests for extensions of time for the filing of any pleading or document must be received in advance of the date on which the pleading or document is due to be filed.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-1-6 RECORD ADDRESS.

The initial pleading filed by any person shall contain his name, address, and telephone number. Any change in such information must be communicated promptly in writing to the Commission, and to all other parties and intervenors. A party or intervenor who fails to furnish such information shall be deemed to have waived his right to notice and service under these rules.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-1-7 SERVICE AND NOTICE.

(1) At the time of filing pleadings or other documents a copy thereof shall be served by the filing party or intervenor on every other party or intervenor.

(2) Service upon a party or intervenor who has appeared through a representative need be made only upon such representative.

(3) Unless otherwise ordered, service may be accomplished by postage pre-paid first class mail or by personal delivery. Service is deemed effected at the time of mailing (if by mail) or at the time of personal delivery (if by personal delivery).

(4) Proof of service shall be accomplished by a written statement of the same which sets forth the date and manner of service. Such statement shall be filed with the pleading or document.

(5) Where service is accomplished by posting, proof of such posting shall be filed not later than the first working day following the posting.

(6) Service and notice to employees represented by an authorized employee representative shall be deemed accomplished by serving the representative in the manner prescribed in paragraph (3) of this Rule.

(7) In the event that there are any affected employees who are not represented by an authorized employee representative, the employer shall, immediately upon receipt of notice of the docketing of the notice of contest or petition for modification of the abatement period, post, where the citation is required to be posted, a copy of the notice of contest or petition and a notice informing such affected employees of their right to party status and of the availability of all pleadings for inspection and copying at reasonable times. A notice in the following form shall be deemed to comply with this paragraph: (Name of employer) Your employer has been cited by the Commissioner of Labor for an alleged violation of the Occupational Safety and Health Act of 1972. The citation has been contested and is subject to a hearing before the OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION. Affected employees are entitled to participate in this hearing as parties under terms and conditions established by the OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION in its Rules of Procedure. Notice of intent to participate should be sent to: Occupational Safety and Health Review Commission Eleventh Floor, First American Center 326 Union Street Nashville, Tennessee 36238 All papers relevant to this matter may be inspected at: (Place reasonably convenient to employees, preferably at or near workplace.) Where appropriate, the second sentence of the above notice will be deleted and the following sentence will be substituted: "The reasonableness of the period prescribed by the Commissioner of Labor for abatement of the violation has been contested and is subject to a hearing before the Occupational Safety and Health Review Commission."

(8) The authorized employee representative, if any, shall be served with the notice set forth in paragraph (7) of this Rule and with a copy of the notice of contest.

(9) A copy of the notice of the hearing to be held before the Commission or Administrative Judge shall be served by the employer on affected employees who are not represented by an authorized employee representative by posting a copy of the notice of such hearing at or near the place or places where the citation or amended citation is required to be posted.

(10) A copy of the notice of the hearing to be held before the Commission or Administrative Judge shall be served by the employer on the authorized employee representative of affected employees in the manner prescribed in paragraph (3) of this Rule, if the employer has not been informed that the authorized employee representative has entered an appearance as of the date such notice is received by the employer.

(11) Where a notice of contest is filed by an affected employee who is not represented by an authorized employee representative and there are other affected employees who are represented by an authorized employee representative, the unrepresented employee shall, upon receipt of the statement filed in conformance with Rule 1030-3-7 hereof, serve a copy thereof on such authorized employee representative in the manner prescribed in paragraph (3) of this Rule and shall file a proof of such service.

(12) Where a notice of contest is filed by an affected employee or an authorized employee representative, a copy of the notice of contest and response filed in support thereof shall be provided to the employer for posting in the manner prescribed in paragraph (7) of this Rule.

(13) An authorized employee representative who files a notice of contest shall be responsible for serving any other authorized employee representative whose members are affected employees.

(14) Where posting is required by this section, such posting shall be maintained until the commencement of the hearing or until earlier disposition.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-1-8 FILING.

(1) A notice of contest under the provisions of Rules 1030-3-4 and 1030-3-7 or a petition for modification of the abatement period under Rule 1030-3-6 shall be filed with the Commissioner of Labor.

(2) Unless otherwise required by these rules, all other papers shall be filed with the Review Commission.

(3) Unless otherwise ordered, all filing may be accomplished by first class mail.

(4) Filing is deemed effected at the time of mailing.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-1-9 CONSOLIDATION.

Cases may be consolidated on the motion of any party, or on the Commission's or Administrative Judge's own motion where there exist common parties, common questions of law or fact, or both, or in such other circumstances as justice and the administration of the Act require.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-1-10 SEVERANCE.

Upon its own motion, or upon motion of any party or intervenor, the Commission or the Administrative Judge may, for good cause, order any proceeding severed with respect to some or all issues or parties.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-1-11 PROTECTION OF TRADE SECRETS AND OTHER CONFIDENTIAL INFORMATION.

(1) Upon application by any person, in a proceeding where trade secrets or other matters may be divulged, the confidentiality of which is protected by law, the Commission or Administrative Judge shall issue such orders as may be appropriate to protect the confidentiality of such matters.

(2) In appropriate instances, interlocutory appeal from an adverse ruling under this rule is authorized by T.C.A. Section 4-523(a).

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

CHAPTER 1030-2. PARTIES AND REPRESENTATIVES

1030-2-1 PARTY STATUS.

(1) Affected employees or their representative may elect to participate as parties at any time before the commencement of the hearing, unless, for good cause shown, the Commission or the Administrative Judge allows such election at a later time. See also Rule 1030-2-2.

(2) Where a notice of contest is filed by an employee, or by an authorized representative, the employer charged with the violation may elect party status at any time before the commencement of the hearing. See also Rule 1030-2-2.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-2-2 INTERVENTION: APPEARANCE BY NON-PARTIES.

(1) A petition for leave to intervene may be filed at any stage of a proceeding before commencement of the hearing.

(2) The petition shall set forth the interest of the petitioner in the proceeding and show that the participation of the petitioner will assist in the determination of the issues in question, and that the intervention will not unnecessarily delay the proceeding.

(3) The Commission or the Administrative Judge may grant a petition for intervention to such an extent and upon such terms as the Commission or the Hearing Examiner shall determine.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-2-3 REPRESENTATIVES OF PARTIES AND INTERVENORS.

Any party, or intervenor, may appear in person or through counsel.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

CHAPTER 1030-3. PLEADINGS AND MOTIONS

1030-3-1 FORM.

(1) Except as provided herein, there are no specific requirements as to the form of any pleading. A pleading is simply required to contain a caption sufficient to identify the parties in accordance with Rule 1030-3-2, which shall include the Commission's docket number, if assigned, and a clear and plain statement of the relief that is sought, together with the grounds therefor.

(2) Pleadings shall be signed by the party filing or by his representative. Such signing constitutes a representation by the signer that he has read the document or pleading, that to the best of his knowledge, information and belief the statements made therein are true, and that it is not interposed for delay.

(3) The Commission or Administrative Judge may refuse for filing any pleading or document which does not comply with the requirements of paragraphs (1) and (2) of this Rule.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-3-2 CAPTION; TITLES OF CASES.

(1) Cases initiated by a notice of contest shall be titled: Commissioner of Labor Complainant v. (Name of Contestant), Respondent.

(2) Cases initiated by a petition for modification of the abatement period shall be titled: (Name of Employer), Petitioner, v. Commissioner of Labor, Respondent.

(3) The titles listed in paragraph (1) of this Rule shall appear on the initial page of any pleading or document (other than exhibits) filed.

(4) The initial page of any pleading or document (other than exhibits) shall show the docket number, if known, assigned by the Commission.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-3-3 NOTICES OF CONTEST.

The Commissioner shall, within seven (7) days of receipt of a notice of contest, transmit the original to the Commission, together with copies of all relevant documents.

Authority: T.C.A. Section 50-544. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-3-4 EMPLOYER CONTESTS.

(1) Complaint

(a) The Commissioner shall file a complaint with the Commission no later than twenty (20) days after his receipt of the notice of contest.

(b) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:

1. The basis for jurisdiction;

2. The time, location, place, and circumstances of each such alleged violation; and

3. The considerations upon which the period for abatement and proposed penalty on each such alleged violation is based.

(c) Where the Commissioner seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

(2) Answer

(a) Within thirty (30) days after service of the complaint, the party against whom the complaint was issued shall file an answer with the Commission.

(b) The answer shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest. Any allegation not denied shall be deemed admitted.

Authority: T.C.A. Section 50-544. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-3-5 PETITIONS FOR MODIFICATION OF ABATEMENT PERIOD.

(1) A petition for modification of abatement period shall be addressed to the Commissioner of Labor pursuant to such rules and regulations as may be duly promulgated by the said Commissioner.

(2) In the event that objections are made to any such petition by the Commissioner of Labor, or by an affected employee, or authorized employee representative, the petition, citation and any objections shall be forwarded to the Review Commission within the time limits set forth in a rule or regulation pertaining to modification of abatement dates duly promulgated by the Commissioner of Labor. In the absence of such a rule or regulation the aforementioned items shall be forwarded to the Commission within three (3) working days after such objections are made, or received, by the said Commissioner.

(3) The Commission shall docket and process such petition in the same manner as any other contested case, except that all hearings on such petitions shall be handled in an expeditious fashion.

(4) Reserved.

(5) Within ten (10) working days after the receipt of the notice of the docketing by the Commission of any petition for modification of abatement date, each objecting party shall file a response setting forth the reasons for posing the granting of a modification date different from that requested in the petition.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Repealed and re-filed January 14, 1978; effective February 13, 1978. Amendment by Public Chapter 969; effective July 1, 1984.

1030-3-6 EMPLOYEE CONTESTS.

(1) An affected employee or authorized employee representative may at any time within twenty (20) days after the employer posts a citation, file with the Commissioner of Labor a notice of contest in which objections are made to the citation's terms and conditions. The Commissioner of Labor shall within ten (10) days from his receipt of the notice of contest file a clear and concise statement of the reasons the citation is not unreasonable.

(2) Not later than ten (10) days after receipt of the statement referred to in paragraph (1) of this rule, the objecting employee or authorized employee representative shall file a response. The Commission shall then afford an opportunity for a hearing.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-3-7 STATEMENT OF POSITION.

At any time prior to the commencement of the hearing, any person entitled to appear as a party, or any person who has been granted leave to intervene, may file a statement of position with respect to any or all issues to be heard.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-3-8 RESPONSE TO MOTIONS. Any party or intervenor upon whom a motion is served shall have ten (10) days from service of the motion to file a response.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-3-9 FAILURE TO FILE. Failure to file any pleading pursuant to these rules (Chapter 1030-1 through Chapter 1030-7) when due, may, in the discretion of the Commission or the Hearing Examiner, constitute a waiver of the right to further participation in the proceedings.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

CHAPTER 1030-4. PRE-HEARING PROCEDURES AND DISCOVERY

1030-4-1 REPEALED.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978. Repealed by Public Chapter 969; effective July 1, 1984.

1030-4-2 PRE-HEARING CONFERENCE.

(1) At any time before a hearing, the Commission or the Administrative Judge may, if the parties agree, direct the parties or their representatives to exchange information or to participate in a pre-hearing conference for the purpose of considering matters which will tend to simplify the issues or expedite the proceedings.

(2) The Commission or the Administrative Judge shall issue a pre-hearing order which recites the action taken at the conference. Such order shall be served on all parties and shall be part of the record.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-4-3 REQUESTS FOR ADMISSIONS.

(1) At any time after the filing of responsive pleadings, any party may request of any other party admissions of facts to be made under oath. Each admission requested shall be set forth separately. The matter shall be deemed admitted unless, within fifteen (15) days after service of the request, or within such shorter or longer time as the Commission or the Hearing Examiner may prescribe, the party to whom the request is directed serves upon the party requesting the admission a specific written response.

(2) Copies of all requests and responses shall be served on all parties in accordance with the provisions of Rule 1030-1-7(1) and filed with the Commission within the time allotted and shall be a part of the record.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-4-4 REPEALED.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978. Repealed by Public Chapter 969, effective July 1, 1984.

1030-4-5 REPEALED.

Authority: T.C.A. Section 50-554.

Administrative History: Original rule filed April 5, 1974; effective May 5, 1974. Repeal filed January 14, 1978; effective February 13, 1978.

1030-4-6 ISSUANCE OF SUBPOENAS; PETITIONS TO REVOKE OR MODIFY SUBPOENAS; RIGHT TO INSPECT OR COPY DATA.

(1) Any member of the Commission or the Administrative Judge shall, on the application of any party directed to the Commission, forthwith issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including relevant books, records, correspondence, or documents, in his possession or under his control. Applications for subpoenas may be made ex parte. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued.

(2) Any person served with a subpoena, whether ad testificandum or duces tecum, shall, within five (5) days after the date of service of the subpoena upon him, move in writing to revoke or modify the subpoena if he does not intend to comply. All motions to revoke or modify shall be served on the party at whose request the subpoena was issued. The Administrative Judge or the Commission, shall revoke or modify the subpoena if in its or his opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in Law the subpoena is otherwise invalid. The Commission or Administrative Judge shall make a simple statement of procedural or other grounds for the ruling on the motion to revoke or modify, any answer filed thereto, and any ruling thereon shall become a part of the record.

(3) Persons compelled to submit data or evidence at a public proceeding are entitled to retain, or on payment of lawfully prescribed costs, to procure copies of transcripts, of the data or evidence submitted by them.

(4) Upon the failure of any person to comply with a subpoena issued upon the request of a party, the Commission may initiate proceedings in the appropriate court for the enforcement thereof, if in its judgment the enforcement of such subpoena would be consistent with law and with policies of the Act. Neither the Commission nor its counsel shall be deemed thereby to have assumed responsibility for the effective prosecution of the same before the Court.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

CHAPTER 1030-5. HEARINGS

1030-5-1 NOTICE OF HEARING.

Notice of the time, place, and nature of a hearing shall be given to the parties and intervenors at least ten (10) days in advance of such hearing, except as otherwise provided in Rule 1030-7-2.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-5-2 POSTPONEMENT OF HEARING.

(1) Postponement of a hearing ordinarily will not be allowed.

(2) Except in the case of an extreme emergency or in unusual circumstances, no such request will be considered unless received in writing at least three (3) days in advance of the time set for the hearing.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-5-3 FAILURE TO APPEAR.

(1) Subject to the provisions of paragraph (3) of this Rule, the failure of a party to appear at a hearing shall be deemed to be a waiver of all rights except the right to be served with a copy of the decision of the Commission.

(2) Requests for reinstatement must be made, in the absence of extraordinary circumstances, within five (5) days after the scheduled hearing date.

(3) The Commission or the Administrative Judge, upon a showing of good cause, may excuse such failure to appear. In such event, the hearing may be rescheduled.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-4 PAYMENT OF WITNESS FEES AND MILEAGE; FEES OF PERSONS TAKING DEPOSITIONS.

Witnesses summoned before the Commission or Administrative Judge and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for witnesses in civil actions in the circuit court. Witness fees and mileage shall be paid by the party at whose instance the witness appears, and the person taking a deposition shall be paid by the party at whose instance the deposition is taken.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-5 REPORTER'S FEES. The basic reporter's fees shall be borne by the Commission, except as provided in Rule 1030-5-4. Parties or intervenors desiring copies of the transcript shall be responsible for the costs thereof.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-5-6 TRANSCRIPT OF TESTIMONY. Hearings shall be transcribed verbatim. The transcript of testimony taken at the hearing, duly certified by the reporter, shall be filed with the Commission.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-7 DUTIES AND POWERS OF COMMISSION AND ADMINISTRATIVE JUDGE.

It shall be the duty of the Commission or its Administrative Judge to conduct a fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate all issues and avoid delay. The Commission or Hearing Examiner shall have authority to:

(1) Administer oaths and affirmations;

(2) Issue authorized subpoenas;

(3) Rule upon petitions to revoke subpoenas;

(4) Rule upon offers of proof and receive relevant evidence;

(5) Make or cause depositions to be taken whenever the needs of justice would be served;

(6) Regulate the course of the hearing and, if appropriate or necessary, exclude persons or counsel from the hearing for contemptuous conduct and strike all related testimony of witnesses refusing to answer any proper questions;

(7) Hold conferences for the settlement of simplification of the issues;

(8) Dispose of procedural requests or similar matters, including motions to amend pleadings, to dismiss complaints or portions thereof, and to order hearings reopened or, upon motion, consolidated prior to issuance of the decision;

(9) Call and examine witnesses and to introduce into the record documentary or other evidence;

(10) Request the parties at any time during the hearing to state their respective positions concerning any issue in the case or theory in support thereof;

(11) Adjourn the hearing as the needs of justice and good administration require;

(12) Take any other action necessary under the foregoing and authorized by the published rules and regulations of the Commission.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-8 DISQUALIFICATION OF MEMBERS OF COMMISSION OR ADMINISTRATIVE JUDGE.

A member of the Commission or the Administrative Judge may withdraw from a proceeding whenever he deems himself disqualified.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-9 EXAMINATION OF WITNESSES.

Witnesses shall be examined under oath. Opposing parties shall have the right to cross-examine any witness whose testimony is introduced by an adverse party.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5,1974; effective May 5, 1974.

1030-5-10 AFFIDAVITS. An affidavit may be admitted as evidence in lieu of oral testimony if the matters therein contained are otherwise admissible and the parties agree to its admission.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-5-11 DEPOSITION IN LIEU OF ORAL TESTIMONY; APPLICATION; PROCEDURES; FORM; RULINGS.

(1) An application to take the deposition of a witness in lieu of oral testimony shall be in writing and shall set forth the reasons such deposition should be taken, the name and address of the witness, the matters concerning which it is expected he will testify and the time and place proposed for the taking of the deposition, together with the name and address of the person before whom it is desired that the deposition be taken (for purposes of this section, hereinafter referred to as "the officer"). Such application shall be filed with the Commission or the Administrative Judge and shall be served on all other parties and intervenors not less than 7 days prior to the time when it is desired that the deposition be taken. Where good cause has been shown, the Commission or the Administrative Judge shall make and serve on the parties and intervenors an order which specifies the name of the witness whose deposition is to be taken and the time, place, and designation of the officer before whom the witness is to testify. Such officer may or may not be the officer specified in the application.

(2) Such deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held. If the examination is held in a foreign country, it may be taken before any secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States.

(3) At the time and place specified in the order, the officer designated to take such deposition shall permit the witness to be examined and cross-examined under oath by all parties appearing, and the testimony of the witness shall be reduced to typewriting by the officer or under his direction. All objections to questions or evidence shall be deemed waived unless made at the examination. The officer shall not have power to rule upon any objection, but he shall note them upon the deposition. The testimony shall be subscribed by the witness in the presence of the officer who shall attach his certificate stating that the witness was duly sworn by him, that the deposition is a true record of the testimony and exhibits given by the witness, and that the officer is not of counsel or attorney to any of the parties not interested in the proceeding. If the deposition is not signed by the witness because he is ill, dead, cannot be found, or refuses to sign it, such fact shall be included in the certificate of the officer and the deposition may be used as fully as though signed. The officer shall immediately deliver one copy of the transcript, together with his certificate, in person or by registered mail to the Commission.

(4) The Commission or Administrative Judge shall rule upon the admissibility of the deposition or any part thereof.

(5) All errors or irregularities in compliance with the provisions of this section shall be deemed waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, discovered.

(6) If the parties so stipulate in writing, depositions may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used as other depositions.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-12 EXHIBITS.

(1) All exhibits offered in evidence shall be numbered and marked with a designation identifying the party or intervenor by whom the exhibit is offered.

(2) In the absence of objection by another party or intervenor, exhibits shall be admitted into evidence as a part of the record, unless excluded by the Commission or Administrative Judge pursuant to Rule 1030-5-.13.

(3) Unless the Commission or Administrative Judge finds it impractical, a copy of each such exhibit shall be given to the other parties and intervenors.

(4) All exhibits offered, but denied admission into evidence, shall be identified as in paragraph (1) of this Rule and shall be placed in a separate file designated for rejected exhibits.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-13 RULES OF EVIDENCE.

(1) The agency shall admit and give probative effect to evidence admissible in a court and may also admit evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs. The agency shall give effect to the rules of privilege recognized by law and shall exclude evidence which in its judgment is irrelevant, immaterial or unduly repetitious.

(2) Documentary evidence otherwise admissible may be received in the form of copies or excerpts, or by incorporation by reference to material already on file with the agency. Upon request, parties shall be given an opportunity to compare the copy with the original, if reasonably available.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-14 BURDEN OF PROOF.

(1) In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Commissioner.

(2) In proceedings under Rule 1030-3-6 for modification of the abatement period the burden of proof shall rest with the petitioner.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-5-15 OBJECTIONS.

(1) Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence or a ruling by the Commission or the Administrative Judge may be stated orally or in writing, accompanied by a short statement of the grounds for the objection, and shall be included in the record. No such objection shall be deemed waived by further participation in the hearing.

(2) Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record of the proceeding.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-5-16 REPEALED.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed January 14, 1978; effective February 13, 1978. Repealed by Public Chapter 969; effective July 1, 1984.

1030-5-17 FILING OF BRIEFS AND PROPOSED FINDINGS WITH THE COMMISSION OR HEARING EXAMINER; ORAL ARGUMENT AT THE HEARING.

Any party shall be entitled, upon request, to a reasonable period at the close of the hearing for oral argument, which shall be included in the record. Any party shall be entitled, upon request made before the close of the hearing, to file a brief, proposed findings of fact and conclusions of law, or both. The Commission or the Administrative Judge may fix a reasonable period of time for such filing, but such initial period may not exceed 20 days from the receipt by the party of the transcript of the hearing.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

CHAPTER 1030-6. POST HEARING PROCEDURES

Repealed

CHAPTER 1030-7. MISCELLANEOUS PROVISIONS

1030-7-1 SETTLEMENT.

(1) Settlement is encouraged at any stage of the proceedings where such settlement is consistent with the provisions and objectives of the Act.

(2) Settlement agreements submitted by the parties shall be accompanied by an appropriate proposed order.

(3) Where parties to settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees in the manner set forth in Rule 1030-1-7 hereof. Proof of such service shall accompany the proposed settlement when submitted to the Commission or the Administrative Judge.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-7-2 EXPEDITED PROCEEDING.

(1) Upon application of any party or intervenor, or upon his own motion, any member of the Commission or the Hearing Examiner may order an expedited proceeding.

(2) The Commissioner or Administrative Judge in an expedited proceeding shall make necessary rulings with respect to time for filing of pleadings and with respect to all other matters, without reference to times set forth in these Rules (Chapter 1030-1 through Chapter 1030-7), and shall do all other things necessary to complete the proceeding in the minimum time consistent with fairness.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-7-3 STANDARDS OF CONDUCT.

All persons appearing in any proceeding shall conform to the standards of ethical conduct required in the state courts.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-7-4 EX PARTE COMMUNICATION.

(1) There shall be no ex parte communication, with respect to the merits of any case not concluded, between the Commission, including any member, officer, employee, or agent of the Commission who is employed in the decisional process, and any of the parties or intervenors.

(2) In the event such ex parte communication occurs, the Commission or the Administrative Judge may make such orders or take such action as fairness requires. Upon notice and hearing, the Commission may take such disciplinary action as is appropriate in the circumstances against any person who knowingly and willfully makes or solicits the making of a prohibited ex parte communication.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-7-5 RESTRICTIONS AS TO PARTICIPATION BY INVESTIGATIVE OR PROSECUTING OFFICERS.

In any proceeding noticed pursuant to these Rules (Chapter 1030-1 through Chapter 1030-7), the Commissioner shall not participate or advise with respect to the Commission decision.

Authority: T.C.A. Section 50 -554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-7-6 INSPECTION AND REPRODUCTION OF DOCUMENTS.

(1) Subject to provisions of law restricting public disclosures of information, any person may, at the offices of the Commission, inspect and copy any document filed in any proceeding.

(2) Costs shall be borne by such person.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

1030-7-7 RESERVED.

1030-7-8 SPECIAL CIRCUMSTANCES; WAIVER OF RULES.

In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the Commission or the Administrative Judge may, upon application by any party or intervenor, or on its own motion, after due notice to all parties and intervenors, waive any rule or make such orders as justice or administration of the Act requires, when such waiver is not precluded by law.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.

Amendment filed January 14, 1978; effective February 13, 1978.

1030-7-9 PENALTIES.

(1) All penalties assessed by the Commission are Civil.

(2) The Commission has no jurisdiction under Section 12 of the Act and will conduct no proceedings thereunder.

Authority: T.C.A. Section 50-554. Administrative History: Original rule filed April 5, 1974; effective May 5, 1974.