The Nacco Mining Company v. Secretary of Labor (MSHA) and United Mine Workers of America (Commission decision, November 13, 1985)

Plain-English summary

The Commission had sent Nacco Mining's case back to the presiding judge on October 17, 1985, for a final decision on the merits. That earlier order addressed a conversation between the judge and a witness, a proposed further hearing, and Nacco's request to assign a different judge. The judge then filed a statement saying he could not follow the Commission's remand instructions. In response, the Commission terminated his jurisdiction and assigned the case to the Chief Administrative Law Judge to complete the merits proceedings. This order did not resolve the underlying dispute.

Decision snapshot

• Cited standards: None in this order.
• Outcome: The presiding judge's jurisdiction was terminated, and the case was reassigned to the Chief Administrative Law Judge for merits proceedings.
• Key point: The Commission reassigned a case after the presiding judge expressly refused to follow its remand order.

Full text (FMSHRC public release)

CCASE:
NACCO MINING V. MSHA & UMWA
DDATE:
19851113
TTEXT:

FMSHRC-WDC
NOV 13, 1985

THE NACCO MINING COMPANY
v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 85-87-R
and

UNITED MINE WORKERS OF
AMERICA

BEFORE: Backley, Acting Chairman; Lastowka and Nelson, Commissioners

ORDER

BY THE COMMISSION:

On October 17, 1985, the Commission returned this proceeding to the administrative law judge with instructions to proceed to a final disposition on the merits. In this order the Commission explained why an off-the-record conversation between the presiding judge and a witness who had appeared before him, although ex parte, was not a prohibited ex parte communication. The Commission also explained why a further hearing ordered by the judge was unwarranted. Contrary to a request by the operator that the case be reassigned, the Commission further explained why the presiding judge should be given an opportunity to decide the case based on the record before him in accordance with governing procedures.

On November 5, 1985, the judge placed in the record a "Statement of Nonacquiescence". We attach the judge's statement to this order as a means of demonstrating its content that is preferable to any attempt to summarize it. In his statement the judge declares that he "cannot, in good conscience, become a party even tacitly to the Commission's suppression order or permit my silence to be so construed regardless of the consequences in terms of further political retaliation" (Statement at 2-3), and he states that he is "compelled to disassociate myself from the strictures on decisional autonomy implicit in the Commission's order of remand." Statement at 6.
~1734
In view of the judge's expressed refusal to follow the order of the Commission in this matter, his jurisdiction in this proceeding is hereby terminated. This case is reassigned to the Chief Administrative Law Judge for the completion of the proceedings on the merits that was previously ordered.

Richard V. Backley, Acting Chairman

James A. Lastowka, Commissioner

L. Clair Nelson, Commissioner