Current through Register Vol. 35, No. 11, June 11, 2024
Section 11.1.2.17 - PROCEDURE FOR DISPOSITION OF APPEALSA. Purpose and scope: The regulations contained in this part set out the procedures by which appeals may be filed, and by which the labor and industrial commission, sitting as the appeals board, hears and decides appeals pursuant to Section 13-4-15 NMSA 1978. The intent of this part is to clarify and implement the responsibilities and rights of all interested parties as set out in the Public Works Minimum Wage Act, Sections 13-4-11 through 13-4-17 NMSA 1978B. Filing the appeal: (1) The notice of appeal shall, consistent with Subsection A of Section 13-4-15 NMSA 1978, be filed with the director within 15 days after a determination, finding, rule, or regulation has been issued or any other action taken, and notice of the action has been given pursuant to Section 16 of 11.1.2 NMAC of these rules and regulations or otherwise. (2) The appellant shall, within 10 days after filing the appeal, file with the labor and industrial commission, in care of the office of the director, a concise statement of all determinations, findings or actions of the director with which the appellant disagrees and from which the appeal is taken, and a brief setting forth the reasons and authorities on which the appeal is based(3) Within 10 days after the filing of the statement and brief, the director shall file a response setting forth the director's justification and authorities relied upon for the determination, findings, or action being appealed from which the appeal is being taken.(4) Any interested person other than the appellant, directly affected by the determination, finding or action of the director, such as, contractors, contracting agencies, labor organizations and contractors' associations, may intervene and file a statement and brief, and may participate in the hearing conducted by the labor and industrial commission.(5) The commission shall furnish copies of the statements, briefs, and answers filed in the appeal to the attorney general, and may request the attorney general to appoint independent counsel to represent it at the hearing.C. Conducting the hearing: (1) The hearing shall be conducted by the commission within 40 days after the filing of the appeal.(2) The commission shall decide all matters brought before it by a quorum which shall consist of two members. Prior to a hearing, the commission shall designate a chairman who shall conduct the meetings and rule on the admissibility of all evidence submitted by and objections of any participant.(3) The commission shall not be required to follow strict rules of evidence and shall have authority to admit any evidence which it concludes has probative value, but irrelevant, immaterial, or unduly repetitious evidence shall be excluded.(4) The commission shall make its decision as to the validity or invalidity of the determination, finding, or action of the director based on substantial evidence on the whole record made before it. The appellant shall present his case first, subject to opportunity to present evidence in rebuttal.(5) The appellant shall present evidence first, any interested party shall present its evidence next and after the director has presented evidence in support of the determination, findings or action that is the subject of the appeal, the appellant shall have the opportunity to present evidence in rebuttal of any evidence presented by the director or any interested person.(6) Each party shall be given an opportunity by the commission to make a closing statement in support of the position of the party regarding the determination, findings, or action that is the subject of the appeal.(7) The commission may adjourn, continue, or reschedule the hearing on the appeal as deemed necessary to afford all parties a fair and reasonable opportunity to be heard.D. Decision by the labor and industrial commission:(1) The commission shall, pursuant to Subsection C of Section 13-4-15 NMSA 1978, enter and file its decision, containing a concise statement of the principal reasons upon which the decision is based including findings of fact and conclusions of law within 10 days after the close of the hearing and promptly mail copies of the decision and statement to the participants of the hearing.(2) The effective date of a decision by the commission concerning violations of the Public Works Minimum Wage Act shall be stayed for 30 days from the date of the filing of the decision to allow any party the opportunity to file an appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.7/23/69, 8/4/69, 9/10/69, 9/30/69, 6/5/79, 3/25/85, 8/29/85, 9/3/85, 12/16/85, 11/4/88, 7/14/92, 2/14/92, 2/14/94, 3/3/94; 11.1.2.17 NMAC - Rn, 11 NMAC 1.1.17, 12/31/09; A, 3/15/12, Adopted by New Mexico Register, Volume XXVII, Issue 24, December 30, 2016, eff. 12/30/2016, Amended by New Mexico Register, Volume XXXI, Issue 21, November 10, 2020, eff. 11/10/2020, Amended by New Mexico Register, Volume XXXI, Issue 24, December 29, 2020, eff. 11/10/2020, Amended by New Mexico Register, Volume XXXIII, Issue 12, June 21, 2022, eff. 6/21/2022