Alaska Administrative Code › Title 8 - Labor and Workforce Development › Part 4 - Occupational Safety and Health Division › Chapter 61 - Occupational Safety and Health › Article 3 - Occupational Safety and Health Review Board › 8 AAC 61.205 - Hearings

Current through May 31, 2024
(a) The board shall schedule hearings on a
				  quarterly basis, unless upon a motion by a party or on its own motion, the
				  board schedules an expedited hearing.
(b) At least 30 days before the hearing, the
				  board shall notify all parties at their addresses of record of the date, time,
				  and place of hearing. In an expedited hearing or if an emergency exists, the
				  board shall notify the parties at least 10 days before the hearing
				  date.
(c) In determining the place
				  of hearing, the board shall consider the convenience and expense to the board,
				  the parties, and their witnesses.
(d) The board may postpone a hearing upon a
				  showing of good cause. A motion to postpone a hearing must be in writing and
				  must set out the reasons for the delay. A motion for postponement filed less
				  than 20 days before the hearing will be denied unless good cause is shown for
				  filing the motion after that time. A party's failure to obtain counsel or make
				  discovery in a timely fashion will not be considered good cause for
				  postponement.
(e) The board or its
				  authorized designee may issue subpoenas under
				  8 AAC 61.160 upon application by a party. An application
				  for a subpoena must be in writing and must state the name of each witness or
				  describe an item of evidence with sufficient detail so that the witness or item
				  of evidence can be readily identified. The preparation and service of a
				  subpoena, including the payment of applicable witness fees and expenses, are
				  governed by the rules of civil procedure and are the responsibility of the
				  party requesting issuance of the subpoena.
(f) Unless otherwise ordered by the board,
				  the department will present its case first at the hearing, followed by the
				  party filing the notice of contest, followed by any other parties. Each party
				  shall be permitted to make an opening statement, present evidence,
				  cross-examine witnesses, and make a closing argument.
(g) An unrepresented party may be permitted
				  to testify in a narrative fashion.
(h) Evidence shall be admitted in accordance
				  with AS
				  44.62.460-
				  44.62.480.
(i) The burden of proof for citations,
				  penalties, or abatement dates is on the department by a preponderance of the
				  evidence. The burden of proof for affirmative defenses is on the party
				  asserting those defenses by a preponderance of the evidence. "Preponderance of
				  the evidence" means that it is more likely than not that the asserted
				  proposition is true.
(j) At the
				  request of a party or on its own motion, the board may direct the parties to
				  file posthearing briefs and the board shall establish a schedule for the
				  submission of those briefs.
(k) The
				  board may allow a party, an attorney, a witness, or any other person to
				  participate telephonically in a board proceeding in the absence of a showing of
				  substantial prejudice to opposing parties. A request for telephonic
				  participation must be made at least 10 days before the hearing unless good
				  cause is shown for filing the request after that time. The party requesting
				  telephonic participation is responsible for arranging the call and paying the
				  associated costs.
(l) The board may
				  allow a board member or a hearing officer to participate telephonically in a
				  board proceeding in the absence of a showing of substantial prejudice to a
				  party to the proceeding.
(m) If a
				  party fails to appear at a hearing without a showing of good cause after
				  receiving proper notice of the hearing, the board may find that party to be in
				  default, may receive any evidence it deems appropriate, and may issue a final
				  decision against that party. In addition, if an employer fails to appear at a
				  hearing without a showing of good cause after receiving proper notice of the
				  hearing, the board may order the employer to pay all reasonable expenses
				  incurred by the board for holding the hearing, including the board's actual
				  travel expenses and per diem. Expenses will be apportioned according to the
				  number of board hearings actually held at the hearing location. A showing of
				  good cause shall be considered by the board if the nonappearing party, within
				  10 days of the hearing, files with the board a written statement giving the
				  reasons for failing to appear.
(n)
				  A hearing before the board shall be recorded. A person may obtain a duplicate
				  recording or a written transcript of a hearing by submitting a request in
				  writing to the board and paying the cost of the recording or
				  transcript.
Authority:
AS
						18.60.020
AS
						18.60.057
AS
						18.60.093