Current through Register Vol. XLI, No. 25, June 21, 2024
Section 37-1-2 - Hearings2.1. Scope. -- Unless otherwise specified in these or other rules and regulations, the rules in this section shall govern and apply to hearings conducted by the Chairman or a Hearing Examiner pursuant to the authority provided in the laws of this State or Rules and Regulations pursuant thereto.2.2. Conduct of hearings. -- The Chairman or a Hearing Examiner appointed by the Board in those proceedings, as authorized by the Code, shall conduct every hearing.2.3. Powers of the Board and Hearing Examiners.(a) In all proceedings before the Board or during the time of reference of a proceedings to a Hearing Examiner in matters authorized by the Code, the Board or the Hearing Examiner in such respective matters shall have the authority and power to: (1) Administer oaths and affirmations;(2) Rule upon offers of proof and receive relevant evidence;(3) Take such action regarding discovery as required in any proceedings and as specified in these rules;(4) Regulate the course of the hearing;(5) Dispose of procedural requests or similar matters;(6) Hold conferences for the settlement or simplification of the issues with the consent of the affected parties;(7) Deny any continuance except for good cause shown;(8) Request the Director to investigate the charge filed in a decertification proceeding and report the results of the investigation within ten (10) days of his receipt of the request;(9) Adopt any other method for the gathering of sworn evidence which affords the Director and all parties due process of law and fair opportunity to present and make a record of evidence; and(10) Take any other action in connection with proceedings as authorized by law.(b) In all proceedings, whether before the Board of a Hearing Examiner, the Board shall be responsible to subpoena witnesses and require the production of any books, papers, records or other documents relevant or material to the proceedings.2.4. Notice of hearing: Contents of notice. (a) Unless otherwise specified in the rules, no hearing shall be conducted under the rules or otherwise unless the parties to the proceeding shall have received at least ten (10) days written notice.(b) Each written notice of the hearing, or notice of denial of the hearing for failure to state a charge, shall contain the date, time and place of the hearing; notice of the hearing and a copy of the charge shall be mailed by certified mail, return receipt requested, to the charging party, the charged party, the Director, the representative of the miner or miners affected and to any interested person of record, and, such notice shall contain the date, time and place of the hearing; and a short and plain statement of matters which are to be the subject of or asserted at the hearing. Such notice shall be provided in accordance with the provisions of W. Va. Code '29a-7-2.2.5. Date, time and place of hearing. -- The date, time and place of each hearing shall be determined by the Board or the Hearing Examiner who is to conduct the hearing. In assigning a hearing site, due regard shall be given to the convenience and necessity of the parties or their representatives and witnesses, the availability of suitable hearing facilities and other relevant factors.2.6. Representation at hearings. -- At hearings held pursuant to these rules, any party may represent himself or be represented by an attorney-at-law admitted to practice before the courts of any state or the District of Columbia. In addition, any party who is also an operator may be represented by a full-time employee, and any miner may be represented by the representative of miners.2.7. Burden of proof. -- In all proceedings before the Board, the party initiating the proceeding shall have the burden of proving his case by a preponderance of the evidence.2.8. Proposed findings, conclusions and orders; briefs.The Board or the Hearing Examiner to whom a matter is referred may request the parties to file proposed findings of fact, conclusions of law and orders, together with a supporting brief. Such proposals and briefs also shall be allowed to be filed at the request of a party. At the request of a party, the Board or the Hearing Examiner to whom a matter is referred shall allow reply briefs to be submitted within ten (10) days after the date of filing of an opposing party's proposals and briefs.
All such proposals and briefs shall be served upon all parties and shall contain references to the record and authorities relied upon.
2.9. Hearings to be public. -- All hearings conducted under these rules shall be open to the public; and hearings conducted to hear charges concerning withdrawal or suspension of certification pursuant to section one, article five, chapter twenty-two of the Code, shall have a transcript made of all evidence presented in any such hearing. A transcript shall not be made of a hearing conducted to hear charges concerning discrimination or miner's entitlements pursuant to section twenty, article one-a, chapter twenty-two-a of the Code, unless (a) a party to such proceedings requests that a transcript be made within thirty (30) days from the date of the receipt of a final order or decision by the Board, or (b) the Board orders a transcript prepared on its own motion, or (c) a court of record or other judicial body exercising jurisdiction over this proceeding or appeal orders that a transcript be prepared.