By law, the Board must review and approve certain corporate instruments (documents) prior to their filing with the Department of State when:
- The purpose or purposes of a corporation are to form an organization of wage earners for their mutual benefit, protection or advancement
- If a proposed corporate name contains the word(s):
- Industrial Organization
Board approval must be obtained before corporate documents can be filed with the Office of the Secretary of State. In each circumstance, the Board will determine if a proposed corporate name is consistent with the corporation’s purposes and determine if the purposes of a proposed corporation are consistent with public policy and the Labor Law.
Examples of Corporate Instruments
Domestic and Foreign Not for Profit Corporations
- Certificate of incorporation
- Certificate of change and amendment
- Restated certificate of incorporation
- Certificate of consolidation
- Certificate of dissolution of a domestic not-for-profit (formerly membership) corporation
- Statement and designation of a foreign nonprofit corporation for authority to do business in New York and amendments
Domestic and Foreign Business Corporations
- Certificate of incorporation
- Certificate of change and amendment
- Restated certificate of incorporation
- Certificate of merger or consolidation of a business corporation
- Application of a foreign business corporation for authority to do business in New York
Note: Board approval of documents for dissolution of such corporations requires proof that dissolution is essential to preserve the interests of its members and will not harm the public.
How to Apply for a Board Review
To obtain Board review of a corporate instrument you must file an application with the Board’s principal office in Albany. A complete application consists of:
- A cover letter requesting approval. Please include the file number(s) of any previous related applications to the Board.
- The original and one conformed copy of all duly executed documents required to be filed with the Secretary of State.
- (a) Notification from the Office of the Secretary of State that the proposed name is available.
(b) A letter from a licensed attorney stating that name availability has been verified.
- Such other materials and information the applicant feels will facilitate the Board’s review.
There is no filing fee for an application.
Completed applications should be addressed to the Board’s principal office at:
Industrial Board of Appeals
Harriman Office Campus
Building 12, Room 183
Albany, NY 12240
Fax: (518) 473-7533
Phone: (518) 474-4785
Verification of Name Availability
The Board itself does not verify that a proposed corporate name is available. It is an applicant’s responsibility to do so. This is accomplished by obtaining from the Office of the Secretary of State written verification that a proposed name is available, or by having a licensed attorney confirm in writing, after searching the records of the Secretary of State, that a proposed corporate name is available.
The Department of State may be contacted at:
NYS Department of State
One Commerce Place
99 Washington Avenue
Albany, NY 12231-0001
Fax: (518) 474-4765
Phone: (518) 474-0050
The Board may, during review of an application, determine that a public hearing is necessary. If a hearing is held, any person or party affected, or likely to be affected, by the application may appear at the hearing and be heard in support or in opposition to the application. The Board also may direct that comments be filed in writing and adjourn the hearing to allow parties an opportunity to submit comments. At a hearing, applicants or others required by the Board to appear must show or provide:
- That the purpose or purposes set out in the proposed corporate document are the genuine aims of the applicant.
- A description of the proposed structure and internal management of the applicant corporate entity.
- If the proposed corporation is to function as a labor union or if it is likely to affect the activities of existing labor unions, a description of the labor-management conditions and relations in the industry in which the applicant will operate, its intended scope of activities; its geographical area; and the impact its operations may have on existing labor-management relations.
- Any other evidence that may establish that the Board's approval is consistent with public policy and the Labor Law.
At the end of a hearing, the applicant and any interested parties may be permitted to file post-hearing statements or briefs.
If the Board approves the proposed document, a resolution of approval is issued. The approval is sent to the applicant for filing in the Office of the Secretary of State.
Board Rule § 67.1 - Scope
The IBA's Rules of Procedure and Practice
Title 12 of the New York State Official Compilation of Codes Rules and Regulations,
Chapter 1, Subchapter B, Part 67.
PART 67. PROCEEDING FOR APPROVAL OF CERTAIN CORPORATE DOCUMENTS
Section § 67.1 Application.
(a) The provisions of this Part shall apply to the filing, processing, hearing, consideration and determination of an application for approval of corporate documents pursuant to section 104 of the Labor Law. See Part 65 of this Subchapter for general rules of procedure and practice not specified in this Part.
(b) If it is the purpose or one of the purposes of a corporation to form an organization of wage earners for their mutual betterment, protection and advancement; the regulation of hours of labor, working conditions or wages; or the performance, rendition or sale of services as labor consultant, or as an advisor on labor-management relations, arbitrator or negotiator in labor-management disputes; or if the corporate name contains certain words or phrases as set forth in section 404(j) of the Not-for-Profit Corporation Law or sections 201(b) and 301(a) (6) of the Business Corporation Law: the board's approval is required for the filing with the Department of State of the State of New York of any of the following instruments:
(1) any certificate of incorporation, certificate of change and amendment, restated certificate of incorporation, certificate of consolidation, certificate of dissolution of a domestic not-for-profit (formerly membership) corporation, or a statement and designation of a foreign nonprofit corporation for authority to do business in this State, and amendments thereof;
(2) Any certificate of incorporation, certificate of change and amendment, restated certificate of incorporation, certificate of merger or consolidation of a business corporation, or application of a foreign business corporation for authority to do business in this State.
NOTE: The Board's jurisdiction is provided for in:
i. Not-For-Profit Corporation Law, section 404(j).
ii. Business Corporation Law, sections 201(b), 301(a)
(c) Labor Law Section 104 states:
"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."
The board's statutory function is quasi-judicial rather than merely ministerial in nature. In discharging this function, the board investigates every application to determine whether the aims, structure and proposed internal management of the applicant are consistent with the public policy and Labor Law of the State. The phrase, "consistent with public policy and the Labor Law," in the above section of the law, denotes a legislative mandate to the board to approve incorporation only of those proposed corporate organizations whose activities and operations will not adversely affect or exert any prejudicial influence upon the State labor policy as expressed in the State and Federal laws, the decisions of the courts, and official administrative pronouncements.
(d) Every corporate document submitted for approval is examined by the board's legal staff to determine its legal sufficiency. Thereafter, an investigation is made to ascertain if a public hearing is necessary. If a public hearing is held, persons and organizations who may be interested in or affected by the granting of an approval are invited to submit written comments and to attend the hearing. At the conclusion of the hearing, the applicant and objectors, if any, may, at the discretion of the hearing officer or the board, be permitted to file briefs.
(e) If the board grants approval of the document, a resolution of approval is appended to the original document and returned to the applicant for filing in the Office of the Secretary of State of the State of New York.
(f) Board approval of documents for the dissolution of such corporations requires proof that dissolution of the corporation is essential to preserve the interests of its members and will not be injurious to the public. Such proof might include: evidence establishing that a corporation is inactive and the probability of its reactivation is remote; that the purpose or purposes for which the corporation was formed have become frustrated; that the corporate assets are in danger of being dissipated; that the corporation cannot continue to function because of a paralyzing failure of management and it is reasonably inferable that such condition cannot be remedied.
Board Rule § 67.2 - Marking a Corporate Instrument
§ 67.2 Applications; how and where made.
(a) Every application for approval of a corporate document shall be made by submitting to the board at its Albany office:
(1) a letter requesting approval;
(2) the original and one conformed copy of all of the duly executed documents which are required to be filed in the Office of the Secretary of State of the State of New York;
(3) notification from the Office of the Secretary of State that the proposed name is available, or the letter of a licensed attorney stating that name availability has been verified by a search of the records of the Secretary of State, except if the document refers to an existing New York corporation and does not involve a change of name; and
(4)such other materials and data pertinent to the application.
(b) If an individual, trade or corporate name or a part thereof forms a part of a proposed corporate title, the applicant shall also file a consent to the use of such corporate title. If the incorporation is of an existing unincorporated group or association, the applicant must also file or attach to the document the affidavit required by section 402(b), Not-for-Profit Corporation Law.
Board Rule § 67.3 - Corporate Instrument Hearings
§ 67.3 Evidence at hearings in support of applications for approval of certificates of incorporation or authority to do business in this State.
Such persons as the board may indicate in its notice of hearing must appear and must be prepared to show, by competent and reliable evidence:
(a) that the purposes set forth in the proposed corporate document are in fact the real aims of the subscribers to the instrument;
(b) a description of the proposed structure and internal management of the corporate entity;
(c) if the proposed corporation is to function as a labor union or if it is likely to affect the activities of existing labor unions, a sufficient description of the labor-management conditions and relations in the industry in which the proposed corporate organization is to operate; its intended scope of activities; its geographical area; and the impact which its operations will or are likely to have on existing labor-management relations in the field in which it seeks to operate;
(d) such other matters, if any, as may tend to establish that the granting of the board's approval is consistent with public policy and the Labor Law.
Board Rule § 67.4 - Intervention
§ 67.4 Intervention, objections; how raised; evidence thereon.
Any person or party affected or likely to be affected by an application for approval of a corporate document may appear and be heard in support or in opposition thereto. The board may, in its discretion, direct objections to be filed in writing and adjourn the proceeding to allow all parties a reasonable opportunity to submit evidence thereon.