RICHARD V. BACKLEY
1927 - 2003

On April 2, 2004, the Review Commission formally dedicated its hearing room in honor of Richard V. Backley, who served as Commissioner from the very beginning in 1978 until his retirement in 1994. Commissioner Backley passed away on October 27, 2003. Friends and colleagues dating back to Commissioner Backley's days in the Solicitor of Interior's Office as well as those who worked with him or appeared before him during his tenure on the Commission joined his wife Nathalie; their children, Martin, Kathleen, and Karen and their families in honoring Commissioner Backley's inimitable service to the Commission and his unwavering dedication to the safety and health of America's miners. As the plaque dedicating the Richard V. Backley hearing room so appropriately states, Dick Backley was the "indispensable Commissioner."

A transcript of the dedication ceremony is posted below.

HEARING ROOM DEDICATION CEREMONY

Chairman Duffy:

Good afternoon.

On behalf of the Commissioners, Judges and employees of the Federal Mine Safety and Health Review Commission, we welcome you to this dedication ceremony at which time we will dedicate the hearing room in honor of Richard V. Backley, former and long-time member of the Commission.

Before we get started with the program, I would like to acknowledge some special guests: former Commissioners Joyce Dole, James Lastowka, Al Lawson and James Reilly. Also with us today are David Lariski, Assistant Secretary of Labor for MSHA, National Labor Relations Board Member Ronald Meisberg, and Deputy Solicitor of Labor Robert Varnel.

We have some speakers to begin the program today, who go way back with Dick Backley in various capacities either as co-workers or as advocates who appeared before him in various cases, or even as adversaries on some occasions. And so, we will start the program with Dave Barbour, who is an Administrative Law Judge here at the Commission. Dave--

David Barbour

Thank you Mike. It's a daunting task to speak of Dick Backley because, lets face it, there's so much material, and Mike has only allotted me a few minutes. But to Dick's family, and especially, Nat, to you, I'd like you to know on behalf of our Chief Judge Bob Lesnick, the other judges, and, really all of us at the Commission's Office of Administrative Law Judges and the Commission's Docket Office, that we believe this is the most singularly appropriate thing the Commission has done since its inception-- to name this hearing room after Dick.

He exemplified for us nothing less than the very best in government service. And I'll tell you why. Because Dick was a pragmatist whose goal was a very American one, to find workable, fair answers to problems within the confines of the law. In spelling out the meaning of the Mine Act, this meant finding solutions that could be understood and implemented by miners, by inspectors, by operators, by lawyers, by judges--all of us alike. And as a result, concepts that we use every day, concepts such as "significant and substantial", "unwarrantable failure", the proof necessary to establish discrimination, were all developed on Dick's watch. Dick was literally present at their creation.

Did he agree with everything in the concepts? Of course not. But if you review the Commission's decisions, you will find very few dissents by him because he believed very strongly in a give and take theory of decision making. For him, it was preferable always for the Commission to speak with as much unanimity as possible, and he knew that this frequently required adjusting one's own interpretation to meet someone else's concern.

He -- I think it's also fair to say disliked and suspected dogma. It too easily got in the way of the workable result that was always his goal. And this, in turn, I think stemmed from something that also was quintessentially American about Dick. Because you have to remember, as all may know, that he grew up in Chicago, a city of rough and tumble politics, where results were achieved by horse trading, by giving and getting, where those with competing interests and ideas sat down and thrashed things out, where accommodation was a necessity. He brought these lessons to the Commission, and for many years they served this Commission very well.

On a personal level, he was very much a democrat, and I use that with a small "d." He treated everyone exactly the same. He knew everyone's name; he kept abreast of and inquired about every person's family situation. And of course, he spoke to everyone. Upon entering the K Street Office, the first person he'd see in the morning was Ella Waymer, who sat at the far end of the hall, and every morning we knew the day had begun when we'd hear his voice boom . . . "Good Morning Ella, how the hell are you!"

Subtle, he was not. If you came into his office and he was busy, it didn't matter if you were the Commission's driver (back then, we had a car or van) or a Commissioner. He was likely to greet you with "Don't bother to sit down, you won't be staying that long." Or, if he was a little less pressed, you might find his big arm wrapped around your shoulder and he'd say, "Walk with me," and before you realized it, you were out the door.

And, like all of us, he had his neuroses. Commissioners, as you know, are appointed to six-year terms, and Commissioner Nease reminded me that the day after his appointment was announced, his high anxiety about getting reappointed would begin.

Although he could be very direct (and I can't imagine anyone ever misunderstood him), at bottom he was a man with a beautiful, humane heart. This was best exemplified for me several years ago when my father, who was then in his late eighties, visited the office. As he aged, my Dad became increasingly garrulous and forgetful. He could remember events long, long past but he could never remember names. And I took him into Dick's office to introduce him to Dick. Dick was busy and I thought we would be there just a minute not enough time for my Dad to get started. But Dick had a map on the wall of his office, and the map showed the islands in the South Pacific. Dad had been in the Navy in World War II and had served in the Pacific. As I introduced the two, I saw Dad look over at the map, and he made a comment about one of the islands where he had been Tinian, I think, and Dick sensed that Dad wanted to talk. Dick pushed the papers on his desk back. He got up and closed the door. We left an hour later. And thanks to frequent questions from Dick, I learned more about my Dad's service during World War II than I had ever known before.

That hour meant everything to Dad, and from then on, until the day he died, he always asked me how the "Big Man" was. He would say to me, "Do you still work for the Big Man?"

And Dad really had it right, because Dick always was and will be, I think, as long as there is a Commission, the "Big Man" of this Commission. So yes, Dad, in a very real sense, when we go about our jobs here and we find pragmatic, fair ways to implement the policies of the Mine Act, and we treat others and those who come before us with equal respect, and when we remember there are times when we just need to listen, all of us still work for the "Big Man."

Chairman Duffy

My mom, if she were here today, would just be mortified at my manners. I welcomed the former Commissioners and other distinguished guests, but I want to officially welcome the Backley family, and I apologize for that oversight.

Next on the program is Joyce Dole, former Commissioner who served many, many years with Dick. Joyce--

Joyce Doyle

It's hard to even know where to start to talk about Dick, both as a fellow Commissioner and as a friend. I think we all acknowledge that he was sort of without parallel on the Commission. He was the person who I think really molded in many ways how the Commission developed, particularly as a collegial body. He obviously knew the Mine Act backwards and forwards, and was always ready to and willing to help you -- you know, some concept that you might be troubled with. But as much as he knew and as quick as he was, he always sort of let you reach your own decisions and helped you along.

He never tried to impose his view of the law on you. And I think that the thing that was really important in my view about Dick was that he really molded the Commission in terms of how it viewed cases, how it interacted, how the Commissioner's interacted with each other, and how there was so much give and take in deciding a case. And when the meeting was over, even if you had been on totally opposite sides of the question, it was always, "Do you want go have lunch?" As much as we might have been fighting, -- not really fighting, but disagreeing or taking different views -- that was all gone once the meeting was over. You went back to being really collegial Commission members, and none of those disagreements got dragged into personal relationships with Dick.

The other thing that I thought that was really wonderful about him, was that he never tried to compete with other Commissioners When someone new would be named to the Commission, he went so much out of his way to help us to sort of adjust to this new role we were taking on. I remember when I joined the Commission, it was almost like he took me in hand and tried to teach me how a Commissioner acted. On the day of the first meeting that I was going to attend, he just kind of ambled into my office in the morning in his very nonchalant way and just sort of laid out how this whole meeting was going to take place. Very casually he told me how the Chairman starts, and you go around the room, and you don't interrupt people and you always get your chance to say what you want to say. That was a very important thing, and I think it affected Commission meetings during his whole tenure. Everybody respected everybody else's opinions and was willing to listen to them even if they did not agree.

And as I said, once the meeting was over, none of that affected people's relationships. He was a valued friend, because he did try to take people in hand and help them adjust to this. He never needed to compete or show that he was so much smarter than you or knew more about the Mine Act, as someone else might. He really tried to make all the Commissioners look good. As Dave Barbour pointed out, he was also always willing to be a little flexible in what he might want to say so that he could accommodate the views of other Commissioners, who might want to say something slightly different.

He valued majority opinions to a great degree, and I think that it stood the Commission in good stead to have so many unanimous decisions rather than decisions with one person saying this and three people saying that and somebody else saying this. Unanimity was very important to him, and I think that it gave more value to the Commission's decisions, in fact, that so many were unanimous.

When Dick retired, he left a big hole on the Commission. I missed him then, and I still miss him now. I consider him a very important part of my professional life, and I think the other Commissioners pretty much feel the same way because he really was without parallel on the Commission. He rendered a great service. As Dave said, he epitomized what public service should be.

Chairman Duffy

Next, we'll hear from another former colleague of Dick's, former Commissioner Jim Lastowka, who is now a partner in the law firm of McDermott, Will & Emery. Jim--

James Lastowka

You know there is an awful lot going on in the world these days, a lot going on in all our lives at this moment. There's hustle, there's bustle, there's a lot of uncertainty. But I know this, and at least this much is certain in this crazy world, this is absolutely the right place to be at this moment in time. I'm sure you have seen those commercials that show the planet earth from outer space, and then the picture keeps zooming in until it focuses close up on an every day scene? If they were going to film one of those right now, I think they should zoom right up to the Mine Safety and Health Review Commission hearing room filled with all of Dick's family and friends gathered here to participate in this wonderful occasion. To be here dedicating this room to Dick Backley is just so right. This is perfect, and I commend Chairman Mike Duffy, all the Commissioners, and the entire Commission family for doing this, because that's what it is, this is the Commission family.

Seeing people here like Commissioner Lawson from the original group of Commissioners who worked with Dick, and also Bob Pleasure, the first general counsel to Commission, who I haven't seen since he left back in the late 70's, it is just great to know that Dick had those attachments to all these people and that he brings all of us back here together. Dick would get such a kick out of this. This Chicago Democrat is, now and forever, a part official Washington. You have the Dirksen Senate Office Building and the Rayburn House Office Buildings. And now there is the Richard V. Backley Hearing Room. Dick would just love it, wouldn't he? His name, and of real importance to him, his family's name is on an official U.S. Government plaque memorializing him and his legacy. Not only is this a testimonial to Dick's contributions to an agency and the law he gave so much of himself to, but it's also a testimonial to his unique contributions, his personal contributions, his professional contributions to the many of us who were so fortunate to work with Dick and to come to know, and yes, to love him.

If Dick were here, I can see him saying, "Ah gee, why did they go do that?" But a minute later, he'd walk up, adjust his glasses and take a close look at that plaque. He then would use one of his ties, or perhaps his shirt sleeve, to buff it up. Then he'd give a hearty laugh, step back, slap the back of the person standing closest to him -- probably too hard -- and then he would go ambling down the halls of the Commission. He'd be heading off to discuss a case, to tackle an agency budget issue, to deal with an agency personnel issue, or to talk politics or sports, or he is just going to search for some other mischief to get into.

And Dick was good at that. One of my finest recollections of Dick is during an oral argument in the former Commission hearing room -- which was not quite as auspicious as the Backley hearing room. Dick was sitting in the middle chair; he was the Chairman. I was the youngster and I was sitting in the chair on the far left. And there was an extended exchange going on between another Commissioner and one of the attorneys participating in the oral argument. Dick had wielded the gavel to start the oral argument, and one of our colleagues started asking a lot of questions -- kept going on and on -- and you could see that Dick was starting to get a little frustrated.

The next thing I know Dick has his shoe in his hand. I thought for a moment that he was going to do a Khrushchev and start using his shoe as the gavel to end the questioning. But combining his professionalism and his down to earthiness, Dick just held that shoe up, and began tapping on it, as if he was trying to get a pebble out of it, and I think he made the point that he thought this line of questioning should be wrapped up. And it was.

Dick is one of those people that you never forget once you meet them. He would not have needed a hearing room to be named after him for any of us to remember him. But even so, I am truly happy that there will be a visible and constant reminder of this wonderful person, this great lawyer, this true friend, every time someone enters the Backley Hearing Room. Dick, congratulations to you, to Nat, and to your entire family. Thank you.

Chairman Duffy

Next, will have Michael Heenan, partner in the law firm of Ogletree, Deakins, Nash, Smoak & Stewart. Smith and Heenan was so much easier, Mike. Mike used to work for Dick in the Solicitor's office and appeared before him here at the Commission. Mike--

Michael Heenan

Speaking of Smith and Heenan, Smith's here. There he is.

It's an honor to be able to say a few words about Dick. I think it's a great honor for Dick and his family that this hearing room is being dedicated to him. I knew that there would be great comments by people that preceded me, so I thought I would wait and see what they said and maybe I could say I agree with all of that, and I do. No dissent on my part either. They're people who knew Dick very well, as did Tom Mascolino, who will also talk.

When I think of Dick, I think of a great guy and a good friend. Somebody I knew for thirty years. In some ways I feel like I knew him for longer than thirty years, because I'd hear about his Chicago days. Natalie was there when we would have those big talks about the Catholic days and about the islands.

Mike Duffy gave different categories of people who knew Dick, and I forget what all the categories were, but I knew I clicked on three of them. I was a co-worker. I was a member of the bar that appeared before the Commission and the Commission Judges. Certainly, I was a friend. But there's one that Mike didn't mention: I was also a member of the hair cut group.

As a co-worker, I was in the Solicitor's office with other people that are here, and Dick was just a great down to earth guy. When we'd have some soap opera, as in any organization, Dick was always the guy who could say "Jeez," and just brush it off. I remember him being happy basically with every thing he did except he wanted to get out of the CAB. He wanted to leave the Civil Aeronautics Board where he was an administrative law judge. He wanted to get back to mining. That was his great thing. And so, I remember talking to Dick about it and told him that there were these jobs as Commissioners under this new Act, and so he was immediately a great candidate for that.

So I got a chance to see him a lot and enjoyed his company a lot. I liked those big bear hugs he'd give you. But then I had that very special time after he retired, which was the hair cut lunch bunch. It simply came down to when Dick needed a hair cut, when his hair was kind of long, he'd call one of us up, and Mike, or I or somebody else would get the pleasure of having lunch with Dick. That's how he kept track of everybody, and then we would talk about Joyce and Jim, and other people, and how everybody was doing.

So, this is a great honor, and it's nice to see this happen for Dick. Thank you.

Chairman Duffy

Thomas Mascolino

Thank you very much Mike. Before I begin, I want to say that Ed Clair, who is the Associate Solicitor for Mine Safety and Health, and who knew Dick as far back as I did, had to be away today, at parents weekend, so he could not be here I'm honored that you should ask me to speak here on behalf of the Office of the Solicitor. Dick and I did know a long, long history and in the early days the shoe was on the other foot. I was the special assistant to the Director of the Office of Hearing and Appeals, in the Department of Interior, and Dick, at first, was a senior trial attorney in the new division of safety and health. One of our biggest events in those days was the Sunshine Silver Mine disaster in which 92 people had died. The statute did not call for a public hearing investigatory phase, but the Secretary mandated that there be one. Dick became counsel for the Director of Bureau of Mines, and I was assisting then Director Jim Day with those hearings.

And so, Dick and I would bump into each other, in a good sense, on demands that we were making of the government, but we also became fast friends. As Joyce noted, Dick could easily after some sort of issue, turn around and say, "Hey, how are you doing, lets go to lunch." He was noted for the jingle of that change in his pocket. That went with the arm around you when he really wanted to be persuasive. I know that Dick held those Sunshine Mine hearings in high regard. When I was leaving 4015 Wilson Boulevard, closing up 30 years in the same office, I came across some of Dick's papers in the Sunshine case -- in his handwriting, the points he was raising. I sent them on to the Mine Safety Academy for their archives down there.

Times were tumultuous in mine safety back then. We had a very difficult time with case management, with some adverse rulings. Dick could be a charmer, and he and Jim Day convinced me to come over to the Office of Solicitor, to try and get our hands around this program, and we had great times doing that. It was tumultuous -- between Dick on the ceiling and coming back down at me. We had a wonderful time.

He had a terrific wit, and he could rally his troops. And between all the people we started pulling in the right direction and getting the cases resolved and the issues moving. When Dick left to join the CAB as an ALJ, I took his position as Assistant Solicitor for Trial Litigation. Looking back at all of Dick's friends in the Office of the Solicitor, I think that even though I may have been Assistant Solicitor, they still saw themselves as Dick's guys.

We were really tickled pink and honored so much that a government litigator, one of our people, would be named to the Commission. We were just so proud of that, and so pleased for him and for all that entailed. And who could imagine from that one appointment Dick was going to go on to be the longest serving member of the Commission, and twice its Chairman, and to mold it so much as all these people have spoken to today.

I know that I felt very comfortable that Dick, as a former litigator, always would have courtesy to litigants. He did have a cut-to-the-chase, trial litigator's position about things. He liked to get there quickly. He always wanted to have things that people could understand -- rules that could be implemented, that would protect the people under the statute and would tell the operators what was required of them. I think there is probably no better way to honor him in his role as a trial litigator, his role as a trial supervisor, his role as a government Commissioner, than to have this hearing room named after him. I second all the things that have been said about the Commission's wisdom in honoring him this way, and I join in good wishes to his Natalie and to the family, and I hope that you enjoy this with him and for him. Thank you very much.

Chairman Duffy

Thank each and every one of the speakers for their great remarks about Dick. I think it goes to show what a well-rounded individual and how widely respected he was. We now come to the moment when we will unveil the plaque, which will be installed on the wall just outside the door. I hope that all of you also saw the sign over the door, the "Backley Hearing Room." That went up yesterday. Now, Nat, if you will come forward, we will unveil the plaque, and then I will read the text:

Richard V. Backley
Commissioner 1978-1994
Chairman 1980-1982

Richard V. "Dick" Backley was the "indispensable Commissioner," whose sixteen years of service on the Commission during the terms of four Presidents from both parties bespoke his genuine respect for his colleagues and the parties and counsel who appeared before him.

Commissioner Backley was responsible for designing and fine-tuning the way the Commission operated from its inception. He stood at the forefront in fashioning those landmark cases that guide Commission law and policy to the present day.

These accomplishments were owing to his deep regard for the law, his dedication to the goals of the Mine Act, and his contagious optimism.

Above all, Dick's disarming sense of humor was ever the key to his ability to forge consensus and realize the Commission's promise.

The Richard V. Backley Hearing Room, dedicated this 2^nd day of April, 2004 serves as a fitting and constant reminder of Commissioner Backley's unstinting service to the cause of mine safety and health.

Uva uvam vivendo varia fit.

Chairman Duffy

Now about that Latin . . . It's taken from the novel, Lonesome Dove, by Larry McMurtry.

Lonesome Dove, as many will recall, is the story of two former Texas Rangers, Augustus McCrae and Woodrow F. Call , who run the Hat Creek Cattle Company, a ranch on the banks of the Rio Grande. The story follows their adventures in first stealing and then driving a herd of cattle north from Texas with the intention of setting up a cattle ranch in Montana. A weatherbeaten sign at the Hat Creek Cattle Company Ranch reads:

Hat Creek Cattle Company & Livery Emporium. Captain Augustus McCrae and Captain W. F. Call Proprietors. For Rent Horses -- For Sale Cattle. We Don't Rent Pigs -- Goats Neither. Uva Uvam Vivendo Varia Fit.

Some of my fondest memories of Dick Backley go back to when Lonesome Dove was produced as a highly acclaimed miniseries on television. As each episode aired, Dick, Ford B. Ford and I would sit in my office on K Street and meticulously dissect and extol the virtues of the previous evening's installment. The one thing that bothered Dick, though, was that Latin phrase carved into the Hat Creek sign. Gus McCrae had long since forgotten what it meant -- if he ever did -- and McMurtry never translated the phrase for the benefit of his readers.

"Duffy, you're an old altar boy, you took Latin in high school, what the hell does it mean?" Dick would ask, and back then I didn't have a clue.

In preparing for this dedication, I began a little internet research on the matter, and found that there's still a website devoted to all things relating to Lonesome Dove, including a replica of the Hat Creek sign that you can download as a screen saver. There is also a discussion among Latin scholars as to the meaning of "Uva uvam vivendo varia fit."

Well it seems that McMurtry -- accidentally or on purpose -- was misquoting an old proverb attributed to the Roman satirist Juvenal, who lived almost 2000 years ago. The original and correct adage was "Uva uvam videndo (not vivendo) varia fit," which, roughly translated, means "one grape causes another grape to ripen." It's sort of the metaphorical opposite of the old saying that one bad apple can spoil the whole barrel.

Learning that fact came as a revelation to me in light of Dick Backley's lasting influence on so many of us here and so many hundreds of others who had the honor and pleasure of knowing him. If ever there was a man who caused countless others to ripen, it was this lawyer, teacher, mentor and friend. And by causing us to ripen, Dick's legacy lives on in us and in those that we, following his extraordinary example, seek to teach and inspire.

The adage can also inspire the ideal of collegiality among Commissioners, an ideal that Dick strove mightily to achieve during his sixteen years of service.

So that's the story behind adding "Uva uvam vivendo varia fit" to this plaque. It is in the uncorrected form carved into the Hat Creek sign, and that drove Dick crazy. Sorry it took so long to translate, Dick, but we can be sure that as future visitors to the Commission puzzle over what the hell it means, a hearty Irish chuckle will be heard to emerge from those legions assembled on high.

Martin Backley

I'm speaking for my mom and my sisters and grandchildren and our wives and spouses. I would like to say thank you everyone for this wonderful honor for my dad. Thanks Mike for everything you have done for us, and keeping in touch with us. When I look around this room, a lot of you I don't know, but I know names and faces. I'm starting to put things together.

He would be embarrassed, and he would be saying, "I don't deserve it." Then he'd walk around the corner and say, "Yeah, damn right I deserve it!" And wait a minute, yes, I've got some change in my pocket, so there we go. So thank you again from our family to everyone. Thank you very much.