Nelson Quarries, Inc. (Commission decision, September 3, 2010)

Plain-English summary

The Secretary filed settlement motions for two Nelson Quarries citations, and the judge approved them the next day with $560 in penalties. Nelson then said it had not agreed to the filed terms and had told the Secretary's representative that approval was still pending. The representative's letters stated that silence for 10 days would be treated as consent. The Commission held that this approach conflicted with Rule 31, which requires certification that the opposing party reviewed and authorized the settlement motion. Because the record did not show a true meeting of the minds, the Commission vacated both approval decisions and remanded the cases.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.31(b)(1)
• Outcome: Both settlement approvals were vacated and the proceedings were remanded.
• Key point: Silence cannot substitute for the opposing party's actual review and authorization of a settlement motion.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 3, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

NELSON QUARRIES, INC.

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Docket No. CENT 2009-663-M

A.C. No. 14-01477-191032

Docket No. CENT 2009-664-M

A.C. No.14-01635-191033

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”).

On July 27, 2010, the Secretary of Labor filed two motions
to approve settlement in these proceedings. The motions to approve settlement involved Citation Nos. 6447701 and 6447705, which had been issued to Nelson Quarries, Inc. (“Nelson”) by the Department of Labor’s Mine Safety and Health Administration (“MSHA”). On July 28, 2010, Administrative Law Judge Priscilla Rae issued two decisions granting the motions and ordering Nelson to pay penalties in the sum of $560 in accordance with the terms of the settlement agreements.

On August 12, 2010, the Judge received from Nelson motions to vacate both decisions approving settlement.

In the motions, Nelson asserts that it did not agree to settle citations in the manner described in the settlement agreements filed by the Secretary and that its representative had informed the Secretary’s Conference and Litigation Representative (“CLR”) before the settlement motions were filed that Nelson had not yet approved of any proposed settlement.

The Judge’s jurisdiction over these proceedings terminated when she issued her decisions approving settlement on July 28, 2010. 29 C.F.R. § 2700.69(b). Relief from a Judge’s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem Nelson’s motions to vacate to constitute timely filed petitions for review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

The Commission has made clear that “[s]ettlement of contested issues is an integral part of dispute resolution under the Mine Act.” Tarmann v. Int’l Salt Co., 12 FMSHRC 1, 2 (Jan. 1990) (quoting Pontiki Coal Corp., 8 FMSHRC 668, 674 (May 1986)). In this respect, the Commission has observed that “the record must reflect and the Commission must be assured that a motion for settlement [approval], in fact, represents a genuine agreement between the parties, a true meeting of the minds as to its provisions.” Tarmann, 12 FMSHRC at 2 (quoting Peabody Coal Co., 8 FMSHRC 1265, 1266 (Sept. 1986)); see also Wake Stone Corp., 27 FMSHRC 289, 290 (Mar. 2005) (vacating decision approving settlement where it was “unclear whether the parties achieved a true meeting of the minds”).

The record in these proceedings includes two letters dated July 27, 2010, from the Secretary’s CLR to Nelson stating that the Secretary anticipates that the Judge would not rule on the motion to approve settlement for a 10-day period, and that if Nelson believes that the motion does not correctly state the operator’s intentions, Nelson must immediately notify the Judge and the Secretary. The CLR states that if Nelson does not file an objection within 10 days, the Secretary would assume that the motion correctly embodies the settlement agreement reached by the parties.

The July 27 letters indicate that the settlement agreements filed by the Secretary do not reflect a true meeting of the minds of the parties. Moreover, the representations made by the CLR are contrary to the provisions of interim Commission Procedural Rule 31, which became effective on May 27, 2010. See 75 Fed. Reg. 21,987 (Apr. 27, 2010). Commission Procedural Rule 31(b)(1) provides that the “party filing a motion must certify that the opposing party has reviewed the motion, and has authorized the filing party to represent that the opposing party consents to the granting of the motion and the entry of the proposed order approving settlement.”

Id. at 21,989.

Thus, it appears from the record that the Judge’s decisions granting the Secretary’s motions to approve settlement were based on proffered agreements that had not been ratified by both parties. See, e.g., Sec’y of Labor on behalf of Pendley v. Highland Mining Co, 29 FMSHRC 164, 165-66 (Apr. 2007). Accordingly, in the interests of justice, we vacate the Judge’s July 28 decisions and remand this matter to her for further proceedings as appropriate. See RBS, Inc., 26 FMSHRC 751 (Sept. 2004).

Mary Lu Jordan, Commissioner

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Paul M. Nelson

Representative for the Respondent

P.O. Box 334

Jasper, MO 64755

[email protected]

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Pricilla M. Rae

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021