<DOC>
[DOCID: f:roages.wais]

 
ROCK OF AGES CORPORATION
October 10, 1997
YORK 94-76-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                     WASHINGTON, D.C. 20006


                        October 10, 1997

SECRETARY OF LABOR,             :
    MINE SAFETY AND HEALTH      :
    ADMINISTRATION (MSHA)       :
                                :  Docket Nos. YORK 94-76-RM
          v.                    :      through YORK 94-83-RM
                                :
ROCK OF AGES CORPORATION        :


                              ORDER

BY THE COMMISSION:

     On October 9, 1997, counsel for Rock of Ages filed a Motion
to Participate in Oral Argument on behalf of David Gomo, and
Motion to Accept Late Request for Participation in the above-
captioned matter.  Upon review of the motions, Chairman Jordan
and Commissioner Marks vote to deny them.  Commissioner Riley and
Commissioner Verheggen would grant the motions.

     To grant the relief requested requires the affirmative vote
of a majority of participating Commissioners.  Jim Walter
Resources, Inc., 17 FMSHRC 1682 (October 1995).  Accordingly,
because there is no majority vote on this motion, the motion is
denied.

     The separate views of the Commissioners follow:

     Chairman Jordan and Commissioner Marks, in favor of denying
the motion:

     We vote to deny the Motion to Participate in Oral Argument
filed by counsel for Rock of Ages on behalf of David Gomo.
Our denial is based on the fact that David Gomo's prior
motion for amicus curiae status indicated that it was filed
on behalf of "[t]he employees of the Rock of Ages
Corporation, by and through their undersigned union
representative."  Mot. at 1.  The Commission subsequently
granted amicus curiae status to "the employees of Rock of
Ages, through their union representative."  Order of
December 29, 1995.  The motion filed by counsel for Rock of
Ages now makes clear that Mr. Gomo seeks to appear at oral
argument "on his own behalf."  Mot. at 1.  Our colleagues
urge us not to impose the "extraordinary reasons" for amici
participation in oral argument required by Fed. R. App. P.
29.  However, it is our colleagues who are prepared to take
the extraordinary step of allowing an individual to appear
before us who has not been granted status as a party or an
amici in this matter.  We note further that Mr. Gomo has
never filed a brief in this case.  It would be patently
unfair to the other participants at the oral argument (all
of whom have submitted briefs to the Commission) to permit
him to offer his views when they have not had the benefit of
being able to prepare a response by reviewing his brief.

     Although it is true, as our colleagues remind us, that the
Commission has usually granted participation to amici asking
to argue before the Commission, that right generally has
been granted only to organizations or unions representing
the views of industry or workers.  We recall no instance in
recent Commission history when an individual, in no
representative capacity, was permitted to share his thoughts
with the Commission during oral argument.  We also do not
remember an instance in which an amicus was permitted to
argue after failing to file a brief.

     Accordingly, after careful review of this motion on its own
merits, we have voted to deny it.  Because we review each
motion that comes before us based on the substance of its
own independent arguments, we fail to understand our
colleagues' position that the Commission's grant of the
USWA's motion to participate in oral argument necessitates
that we grant Mr. Gomo's motion.[1]  Under that rationale,
once an amicus has been permitted to argue on behalf of one
party, any person asking to argue for the opposing side must
be similarly entitled, simply in the name of equitable
considerations.

     True equity does not mean that the Commission must employ
a "tit-for-tat" rule requiring an equal number of amici on
both sides of a question.  Rather, true equity means that
the Commission must carefully evaluate the merits of each
motion, taking into account the procedural and substantive
issues raised, and any institutional concerns the motion
might generate.

                                   Mary Lu Jordan, Chairman

                                   Marc Lincoln Marks, Commissioner


**FOOTNOTES**

     [1]:   We  are  frankly puzzled by our colleagues' assertion
that "the USWA has come  before  us  after the fact to assume the
`representative'   role."   The  Commission's   previous   orders
permitted Mr. Gomo and  the  International  Union  to each play a
distinct representative role, and to submit separate arguments on
behalf   of  each  side.   The  key  phrase,  as  our  colleagues
recognize,   is   that   we  assumed  amici  would  appear  in  a
"representative role."  Since Mr. Gomo has now indicated he would
be appearing at argument "as  an  eyewitness  to  the  events  at
issue,"  Mot.  at  1, we disagree with our colleagues' claim that
"it is too late in the game to withdraw our invitation."

     Commissioner Verheggen and Commissioner Riley, in favor
of granting the motion:

     We write separately because we are deeply troubled by the
Commission's denial of Mr. Gomo's motion to participate
in the upcoming oral argument in this case.  Until today,
the Commission has routinely  accommodated amici wishing to
participate in oral argument. Clearly, the Commission has
never relied upon Rule 29 of  the Federal Rules of Appellate
Procedure, which states that motions by amici "to
participate in oral argument will be granted only for
extraordinary reasons."  Fed. R. App. P. 29.  Indeed, our
colleagues who now vote to deny Mr. Gomo's motion only
days ago voted in favor of granting a similar motion from
the amicus curiae United Steel Workers of America ("USWA").
That our colleagues now refuse to similarly accommodate Mr.
Gomo strikes us as inequitable.

     Mr. Gomo moved for amicus status, and his motion was
granted.  Although technically we did not grant amicus status
to Mr. Gomo personally, that the USWA has subsequently come
before us to assume the  "representative" role does not
alter the fact that a local  worker asked for and was
granted amicus status.  It is too late in the game to
withdraw our "invitation."  To quibble with exactly who he
represents, especially in light of the fact that the
Secretary does not oppose Mr. Gomo's motion ("on the
condition that [he] not be  allowed to testify . . . and
that his argument be otherwise proper in scope"),[2] is to
exalt form over substance at the expense of equity and a
balanced and open exchange of ideas.


                              James C. Riley, Commissioner
                               
                              Theodore F. Verheggen, Commissioner
                              
                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner


**FOOTNOTES**

     [2]:   The  Commission's   Office  of  General  Counsel  has
determined administratively that  the USWA has no position on Mr.
Gomo's motion.  We also note that our  colleagues  are  concerned
that "[i]t would be patently unfair" if Mr. Gomo were allowed  to
present  oral  argument because he chose not to file a brief, and
thus,  the Secretary  and  USWA  were  not  "able  to  prepare  a
response."   But the Commission never required Mr. Gomo to file a
brief.  Moreover,  the  Commission  is institutionally capable of
ensuring that any presentation given  by Mr. Gomo would not stray
beyond the evidentiary scope of our review.