<DOC>
[DOCID: f:wst9926cd.wais]

 
U.S. BORAX, INCORPORATED
October 31, 2000
WEST 99-26-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        October 31, 2000

LOUIS W. DYKHOFF, JR.            :
                                 :
          v.                     :    Docket No. WEST 99-26-DM
                                 :
U.S. BORAX, INCORPORATED         :


BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
        Commissioners

                             DECISION

BY: Riley and Verheggen, Commissioners

     In this discrimination proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"), Administrative Law Judge Jerold
Feldman concluded that Louis W. Dykhoff, Jr. failed to prove that
U.S. Borax, Inc. ("Borax") discriminated against him under
section 105(c)(1) of the Mine Act, 30 U.S.C. � 815(c)(1),[1] when
it issued a corrective notice to him for excessive absences.  21
FMSHRC 791, 792 (July 1999) (ALJ).  The Commission granted
Dykhoff's petition for discretionary review challenging the
judge's dismissal of his discrimination complaint.  For the
following reasons, we affirm the judge's decision in result.

                               I.

                Factual and Procedural Background

     Borax operates a borax mine and processing facility in
Boron, California.  21 FMSHRC at 792.  Borax administers
discipline for excessive absences on a case-by-case basis
pursuant to an unwritten absenteeism policy.  Id. at 793.  Borax
examines an employee's attendance record at random, or when it
notices that an employee has missed a lot of work, to determine
whether he or she is excessively absent.  Tr. 46, 132.  Borax's
general rule allows "an incident every other month . . . and [an]
average [of] a day a month."  Tr. 43.  For example, examining an
employee's attendance record for the preceding 12 months, more
than 6 incidents or 12 days of absence will warrant discipline
under Borax's policy.  21 FMSHRC at 793.  An incident is any
number of consecutive days of absence.  Id.  Borax's no-fault
policy counts bona fide absences due to illness, even if
certified by a physician, for disciplinary purposes, while
excluding absences exempt under the collective bargaining
agreement ("CBA"), such as vacation, jury duty, union business,
funeral leave, or leave under the Federal and Medical Leave Act
of 1993, 29 U.S.C. � 2601 et seq.  Id.  Under the CBA, Borax is 
permitted to consider an employee's absences during the preceding 
two years. Id.; Tr. 43; Ex. R-1. Once it determines that an 
employee has been excessively absent, Borax administers discipline 
under a five-step progressive system. 21 FMSHRC at 793. The first 
step is verbal counseling, the second is a corrective notice, the
third is a written warning, the fourth is disciplinary
suspension, and the fifth is termination. Id. Between June 1987
and January 1998, Borax discharged eleven employees for excessive
absences. Id.

     Dykhoff began his employment at Borax on January 2, 1979.
Id. During the time period at issue in this case, from early
1995 to March 6, 1998, Dykhoff was employed as a shipping
operator in Plant 9.  Id.  His responsibilities included
operating a fork lift for the purpose of loading packed product
into rail cars and trucks, lifting heavy objects, and climbing
stairs.  Id.  Following knee surgery in July 1994 due to a
deteriorating bilateral knee condition, Dykhoff had trouble
performing the duties of his position.  Id.  Pursuant to the
American with Disabilities Act ("ADA"), 42 U.S.C. � 12101 et seq.
(1994), upon his return to work in early 1995, Borax accommodated
Dykhoff by modifying the duties of his position, based on his
doctor's recommendations to reduce his amount of lifting and
climbing.  Id.  Also at this time, according to his doctor's
recommendation, Borax required Dykhoff to wear knee braces at all
times while working.  Id. at 794.  The knee braces were custom-
made for an exact fit and were provided by Borax's insurance
company.  Id.  The braces had to be replaced periodically.  Id.
Because the braces had to be specially ordered, they could take
up to a month to arrive.  Id.  Dykhoff did not work during these
times since neither Borax nor the insurance company would pay for
a spare brace, and Dykhoff asserted that he could not afford to
pay for a back-up.  Id.  During these absences, Dykhoff informed
Borax of his status and anticipated return to work.  Id.

     In December 1996, Dykhoff received a verbal warning for
excessive absences from his supervisor, Chuck Amento, who
requested that personnel manager Darryl Caillier get a copy of
Dykhoff's attendance record.  Id.  Dykhoff's attendance record
revealed that, as of December 6, 1996, he had been absent for 7
incidents totaling 21 days in the preceding 12 months.  Id.  On
or about October 20, 1997, Mike King, Dykhoff's shipping foreman
from January 1997 to January 1998, also gave Dykhoff a verbal
warning for his excessive absences.  Id.  King was aware of
Dykhoff's accommodations because of his knees, but was not aware
of any special exception concerning leave.  Id.

     On March 3, 1998, because of a jaw infection resulting from
major dental work, Dykhoff worked for only one hour and did not
report to work on March 4 through March 6.  Id.  Dykhoff told
David Leach, his shipping supervisor at the time, that he would
be out, but Leach did not remember having a conversation with
Dykhoff regarding the reason for his absence.  Id.  On March 6,
Leach reviewed Dykhoff's attendance records, which revealed that
in the previous 21 months, he had 10 incidents and missed 71 full
and 13 partial days.[2]  Id. at 794-95.  Of these 10 incidents,
two incidents involved absences related to Dykhoff's knee braces:
one incident of 46 days from January 29 to April 4, 1997, and the
second incident of nine days from July 2 to July 12, 1996. Tr.
61, 65-66, 230-31; Ex. R-5.  Leach and Caillier signed a
corrective notice on the same day and gave it to Dykhoff on March
12 at a step two meeting under the CBA's grievance procedure. 21
FMSHRC at 793, 794-95.  On June 18, at a step three grievance
meeting with the Human Resources Department, Dykhoff explained
that he was unable to work from March 3 through 6 because he had
taken Percodan as prescribed by his physician.  Id. at 795.
Percodan is a strong pain killer which made Dykhoff drowsy. Id.
Dykhoff also stated that he was fatigued from lack of sleep. Id.

     During his employment with Borax, Dykhoff was an active
union member, serving in his local union as the secretary-
treasurer and a shop steward for the shipping department. Id.
From 1994 through January 1998, Dykhoff was involved in a variety
of union related health and safety complaints.  Id. at 796. The
union's grievance regarding Dykhoff's corrective notice did not
contend that the notice was related to his health and safety
complaints.  Id.

     On July 20, 1998, Dykhoff filed a discrimination complaint
with MSHA pursuant to section 105(c)(2) of the Mine Act, 30
U.S.C. � 815(c)(2),[3] requesting that the corrective notice be
removed from his personnel record.  Id. at 795.  On September 9,
after its investigation of Dykhoff's claims, MSHA determined that
there was no basis for discrimination.  On October 19, Dykhoff
filed a complaint with the Commission pursuant to section
105(c)(3), 30 U.S.C.
� 815(c)(3).[4]

     In his decision, the judge analyzed the case as a work
refusal and concluded that Dykhoff's refusal was not protected
because he did not communicate the reason for his refusal to
Borax.  21 FMSHRC at 797.  In the alternative, the judge reasoned
that, even if the reason for Dykhoff's work refusal had been
communicated, it would still have been unprotected because the
basis of Dykhoff's refusal was his "idiosyncratic physical
impairment," which the Mine Act does not protect, and not
"hazardous mine practices or conditions over which the operator
has control."  Id. at 797-98.  Analyzing Borax's defense, the
judge found that the operator had a legitimate business
justification for disciplining Dykhoff because of his excessive
absences.  Id. at 798.  Finally, the judge concluded that the
alleged adverse action, the corrective notice, was in no part
motivated by Dykhoff's prior safety complaints as an active union
member.[5]  Id. at 799.  Based on his conclusions, the judge
dismissed Dykhoff's complaint.  Id.

                               II.

                           Disposition

     Dykhoff argues that he stayed home when he did not have his
knee braces because he was unable to safely work, was a danger to
himself and others, and that such conduct constituted a protected
work refusal.[6]  PDR at 1-2; D. Br. at 1-2, 7.  He contends that
there was no need to communicate to Borax the reason for his
refusal to work because Borax already knew the reasons for
Dykhoff's knee-related absences, as evidenced by the parties'
agreement.  D. Br. at 1-2, 7.  He asserts that Borax required him
to wear knee braces when working and agreed not to discipline him
for absences due to the unavailability of the knee braces through
no fault of his own.  Id.  Dykhoff also argues that the judge
committed a procedural error by failing to enter default against
the operator when it failed to comply with the judge's orders.
Mot. for Relief from Default and/or Reconsideration at 2 ("Mot.
for Relief") and attachs.; D. Br. at 5-6.  Dykhoff requests that
the Commission order Borax not to consider any absences based on
his knee condition for purposes of disciplinary action and to
remove from his personnel file all record of such instances.

     Borax responds that Dykhoff's work refusal was not protected
because he failed to communicate the hazardous condition to the
operator.  B. Br. at 4-5.  It also asserts that the Mine Act does
not protect work refusals based on "idiosyncratic physical
impairments."  Id. at 8-9.  Borax contends that it had a
legitimate business justification for issuing the corrective
notice to Dykhoff under its attendance policy and has the right
to exclude from the workplace miners who are unsafe.  Id. at 5-7.
Furthermore, Borax argues that Dykhoff's claim of procedural
error was not properly preserved for review because he did not
raise the issue before the judge below.
Id. at 10.  Alternatively, Borax contends that the judge's error
was harmless and cannot be a basis for reversal of the judge's
decision.  Id.  Borax requests that the Commission affirm the
judge's decision and dismiss Dykhoff's complaint.

     A.   Work Refusal

     A complainant alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity.
See Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Secretary of Labor on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d
Cir. 1981); Secretary of Labor on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).  The operator
may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
part motivated by protected activity.  See Robinette, 3 FMSHRC at
818 n.20.  If the operator cannot rebut the prima facie case in
this manner, it nevertheless may defend affirmatively by proving
that it also was motivated by the miner's unprotected activity
and would have taken the adverse action for the unprotected
activity alone.  See id. at 817-18; Pasula, 2 FMSHRC at 2799-800;
see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 
642-43 (4th Cir. 1987) (applying Pasula-Robinette test).

     The Mine Act grants miners the right to complain of a safety
or health danger or violation, but does not expressly state that
miners have the right to refuse to work under such circumstances.
Nevertheless, the Commission and the courts have recognized the
right to refuse to work in the face of such perceived danger.
See Price v. Monterey Coal Co., 12 FMSHRC 1505, 1514 (Aug. 1990);
Secretary of Labor on behalf of Cooley v. Ottawa Silica Co., 6
FMSHRC 516, 520 (Mar. 1984), aff'd mem., 780 F.2d 1022 (6th Cir.
1985).  A miner refusing work is not required to prove that a
hazard actually existed.  See Robinette, 3 FMSHRC at 810-12. In
order to be protected, work refusals must be based upon the
miner's "good faith, reasonable belief in a hazardous condition."
Id. at 812; accord Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C.
Cir. 1989).  The complaining miner has the burden of proving both
the good faith and the reasonableness of his belief that a hazard
existed.  See Robinette, 3 FMSHRC at 809-12; Secretary of Labor
on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993, 997 (June
1983).  A good faith belief "simply means honest belief that a
hazard exists."  Robinette, 3 FMSHRC at 810.

     The underpinning of Dykhoff's argument that he engaged in a
protected work refusal is that, by staying home from work when he
did not have the knee braces, he was in essence refusing to work
under unsafe conditions.  The judge did not address whether
Dykhoff's absences constituted refusals to work, and the parties
on review also ignore this issue.  However, we conclude this is
the dispositive question in this case.  The Commission has held
that a miner's absence due to a medical condition exacerbated by
the miner's job duties does not constitute a work refusal.
Perando v. Mettiki Coal Corp., 10 FMSHRC 491, 494-95 (Apr. 1988).
In Perando, an underground miner stayed at home on extended sick
leave upon receiving a diagnosis of industrial bronchitis from
her physicians, who recommended that she work in a less dusty
environment.[7]  Id. at 492-93.  Examining the miner's actions,
and the communications between her physicians and the operator,
the Commission concluded that the miner had never actually
refused to work underground.  Id. at 495.  Similarly, in Sammons
v. Mine Servs. Co., 6 FMSHRC 1391, 1397 (June 1984), the
Commission held that, to establish that a work refusal had taken
place, the miner must show "some form of conduct or communication
manifesting an actual refusal to work."

     Here, Dykhoff did not state that he was refusing to work nor
did he exhibit conduct manifesting a refusal to work.  Like the
miner in Perando, neither Dykhoff nor his doctor communicated
that he could not work, but only suggested that accommodations be
made.  Consistent with his doctor's prescription, Borax
instructed Dykhoff to wear braces while working and not to come
to work without them.  Thus, Dykhoff's absences due to the
unavailability of the braces were not refusals to work, but
efforts to comply with Borax's policy.  Dykhoff never refused to
comply with Borax's order to wear the braces, and Borax did not
order him to work when he did not have the braces.[8]  Under the
circumstances, we conclude that Dykhoff did not refuse to work by
staying home.

     We recognize that compliance with Borax's directive
incorporating his doctor's prescription for braces made it
difficult, if not impossible, for Dykhoff to comply with Borax's
general attendance policy.  Whether Dykhoff's predicament could
be successfully addressed in actions under the American with
Disabilities Act or the collective bargaining agreement is beyond
the scope of this proceeding.  However, that Dykhoff was the
subject of conflicting employer policies is not relevant to
determining whether he refused to work.  Indeed, under these
facts, it is difficult to say that Dykhoff "refused" to comply
with the attendance policy itself, much less an order to work.
Rather, it was application of the braces directive, in the
context of Dykhoff's not having temporary replacements, that
caused him to run afoul of the attendance rules.

     Even if Dykhoff's absences occasioned by his lack of knee
braces could be considered work refusals, his argument that his
medically-related absences were in fact work refusals in the face
of unsafe conditions stretches the work refusal doctrine far
beyond its contours as heretofore recognized by the Commission.
If the Commission were to construe Dykhoff's decision to stay
home as a work refusal, then it is difficult to see why every
absence for medical reasons would not be a work refusal.  Such an
expansion of the work refusal doctrine would make enforcement of
otherwise valid attendance policies difficult if not impossible.
This result would be at odds with Commission precedent, which
recognizes that operators may discipline employees who violate
non-discriminatory time and attendance policies.  See Mooney v.
Sohio Western Mining Co., 6 FMSHRC 510, 513-14 (Mar. 1984).[9]

     Dykhoff's submissions may also be understood as challenging
Borax's attendance policy as applied because, under the policy,
absences related to Dykhoff's knee condition are counted for
disciplinary purposes, in violation of his alleged agreement with
Borax not to be penalized for these absences.  PDR at 1-2; D. 
Br. at 1-2, 7.  Assuming arguendo the existence of such an
agreement,[10] its breach by Borax would not be per se a
violation of section 105(c).  Although we recognize, as Dykhoff
asserts, the difficulty in complying with both Borax's attendance
policy and its brace requirement, we do not find either policy,
considered separately or together, discriminatory, because they
do not interfere, on their face or as applied, with a protected
right under the Act.  See Secretary of Labor on behalf of Price &
Vacha v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1307 (Aug.
1987) ("the Commission does not sit as a super grievance board to
judge the industrial merits, fairness, reasonableness, or wisdom
of [the operator's] drug testing program apart from the scope and
focus appropriate to analysis under section 105(c) of the Mine
Act"); Secretary of Labor on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2516 (Nov. 1981) ("The Commission and its
judges have neither the statutory charter nor the specialized
expertise to sit as a super grievance or arbitration board meting
out industrial equity."), rev'd on other grounds, 709 F.2d 86
(D.C. Cir. 1983).  Similarly, to the extent Dykhoff challenges
Borax's non-discriminatory attendance policy, we find that
challenge inconsistent with Mooney.  See also Secretary of Labor
on behalf of Price & Vacha v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1532 (Aug. 1990) (holding that operator's facially-
neutral drug policy did not violate section 105(c)).

   Based on the foregoing, we find that Dykhoff's previous
decisions to stay at home when his braces were unavailable, prior
to the March 3-6 incident which triggered the disciplinary
corrective notice, were not work refusals.  Because the record
cannot support a contrary conclusion, we conclude that a remand
to the judge on the issue of whether a work refusal occurred is
unnecessary.  See American Mine Servs., Inc., 15 FMSHRC 1830,
1834 (Sept. 1993) (remand unnecessary where record supports only
one conclusion).  We therefore affirm in result the judge's
determination that Borax did not discriminate against Dykhoff in
violation of section 105(c) of the Act.

   In upholding the judge's dismissal of Dykhoff's complaint, we
decline to adopt the judge's rationale that a miner's physical
condition alone cannot serve as the basis for asserted protected
activity.  See 21 FMSHRC at 797-98.  The judge's conclusion is
contrary to Commission precedent.[11]  See Bjes v. Consolidation
Coal Co., 6 FMSHRC 1411, 1417 (June 1984) (holding that "under
appropriate circumstances . . . a miner may refuse to work on the
basis of a perceived hazard arising from his own physical
condition or limitations").[12]

   B.   Procedural Error

   On December 10, 1998, Chief Administrative Law Judge Paul
Merlin issued a show cause order to Borax for failure to file an
answer to Dykhoff's complaint and ordered Borax to file an answer
or show good reason for its failure to do so within 30 days.  On
February 12, 1999, Chief Judge Merlin assigned the case to Judge
Feldman, and on February 17, Judge Feldman issued a hearing
notice and pre-hearing order.  On February 19, Borax filed an
answer with Judge Feldman, more than one month after the deadline
in the show cause order had passed.  With its answer, Borax sent
a letter explaining that its answer was originally drafted in
response to the December 10 show cause order, but that it could
not determine whether the Commission received it and, pursuant to
a telephone conversation with Judge Feldman on February 19, Borax
was sending its answer directly to Judge Feldman.  Borax further
stated that there was no prejudice to Dykhoff from this delay
because he was still employed at Borax.  On April 27, 1999, a
hearing on the merits was held.  On appeal, Dykhoff argues that
the judge committed a procedural error by failing to enter
default against Borax when it failed to comply with the judge's
show cause order.  Mot. for Relief at 2 and attachs.; D. Br. at
5-6.

   We find persuasive Borax's argument that the issue of the
judge's procedural error is not properly before the Commission
because Dykhoff failed to raise it before the judge below.  B.
Br. at 10.  Under the Mine Act, except for good cause shown, a
party may not rely upon an assignment of error on any question 
of fact or law upon which the judge has not been afforded an
opportunity to pass.  30 U.S.C. � 823(d)(2)(A)(iii). Dykhoff 
did not raise the issue of the judge's failure to enter default 
upon Borax at the hearing or in his post-hearing brief. Nor 
did he show cause for his failure to raise the issue below.
Accordingly, we conclude that this issue was not properly 
raised and the Commission need not reach it.

   Even if Dykhoff had preserved this question, however, we would
reject Dykhoff's argument.  The Commission has held that default
is a harsh remedy which is not favored.  M.M. Sundt Construction
Co., 8 FMSHRC 1269, 1271 (Sept. 1986) and Kelley Trucking Co., 8
FMSHRC 1867, 1869 (Dec. 1986).  Also, the decision to enter
default against a party is within the judge's discretion. See 10
Wright, Miller & Kane, Federal Practice and Procedure, Civil 3d
� 2693 ("An application . . . to set aside a default . . . is
addressed to the sound discretion of the [judge].  The judge's
determination normally will not be disturbed on appeal unless he
has abused his discretion or the appellate court concludes that
he was clearly wrong.") (footnotes and internal quotation marks
omitted).  An "abuse of discretion may be found only if there is
no evidence to support the decision or if the decision is based
on an improper understanding of the law."  Utah Power & Light
Co., 13 FMSHRC 1617, 1623 n.6 (Oct. 1991) (quoting Bothyo v.
Moyer, 772 F.2d 353, 355 (7th Cir. 1985)).

   Based on the record evidence, we hold that Chief Judge
Merlin's failure to enter default against Borax for its late
filing does not amount to an abuse of discretion.  While Judge
Merlin's decision to assign the case before Borax responded to
the show cause order is unexplained, ultimately, Borax filed an
answer shortly after the deadline set in the show cause order.
There is no indication that Dykhoff suffered any prejudice as a
result of Borax's one-month delay in responding to the show cause
order.  Likewise, we conclude that Judge Feldman did not abuse
his discretion when he accepted Borax's late-filed answer and
allowed the case to proceed to a hearing on the merits.  Dykhoff
does not demonstrate any prejudice from Borax's failure to timely
file an answer.  By contrast, entry of default against Borax,
thereby denying it an opportunity to defend itself against claims
of discrimination, would have been highly prejudicial.  Because
the judges' decisions not to enter default against Borax are
consistent with Commission precedent disfavoring defaults, and
because no prejudice has been shown, we believe that there is no
basis for reversal on the ground of procedural error.

                              III.

                           Conclusion

     For the foregoing reasons, we affirm in result the judge's
decision dismissing Dykhoff's complaint.


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


**FOOTNOTES**

     [1]:  Section 105(c)(1) provides in pertinent part:

          No  person  shall  discharge or in any manner
          discriminate   against   or   cause   to   be
          discharged or cause discrimination against or
          otherwise interfere  with the exercise of the
          statutory  rights of any  miner...because  of
          the exercise  by  such  miner...on  behalf of
          himself  or  others  of  any  statutory right
          afforded by this Act.

     [2] Borax explained at the hearing and in its pre-hearing   
statement that during this period, Dykhoff, in actuality, had 23
incidents  because  each   partial  day  also  counted  as  one  
incident.  Tr.  12-14;  B. Preliminary  Statement at 7-8 &  n.3.   
Borax also  explained   that   it   considered  the preceding 21 
months for full days missed, but only  the  preceding  six months
for partial days missed. Tr. 12-14; B. Preliminary Statement  at  
7-8 & n.3. Darryl Caillier, Borax's personnel manager, testified 
that he ran an absentee check on the partial absences for the 
preceding six months only because the data on his computer screen  
did not go further back and could not print out that information. 
Tr. 59-60; Ex. R-5. At the hearing, Borax claimed that, in fact, 
in the preceding  21   months   from  the  time  the corrective 
notice was issued  in  March 1998, Dykhoff  had 55 incidents 
involving  71  full days and 46  partial  days.  Tr.  12-14;  B.
Preliminary Statement at 7-8  &  n.3. The judge did not make an
explicit finding on  whether  Borax's attendance policy treated 
partial absences as incidents, and the parties  have not argued
this issue to the Commission on review.

     [3] Section 105(c)(2) provides in pertinent part: "Any miner 
. . . who believes that he has  een discharged,  nterfered  ith,  
or otherwise discriminated against  . . . may, within  60 days 
after such violation occurs, file a complaint with the Secretary 
alleging such discrimination."

     [4] Section 105(c)(3) provides in pertinent part: "If the  
Secretary, upon investigation, determines that the provisions 
of this subsection have not been violated, the complainant shall  
have the right within 30 days  of  notice  of  the  Secretary's
determination,  to  file an action in his own
behalf before the Commission . . . ."

     [5] Dykhoff does not challenge the judge's finding with  
regard to his prior safety complaints.

     [6] Dykhoff does not challenge the judge's finding that 
his absences  related to his use of Percodan from  March 3 
through 6 are unprotected.

     [7] The miner was ultimately given a surface job at much 
lower pay, but was frequently absent and finally discharged 
for failing to report to work for a substantial period of time.  
10 FMSHRC at 493.

     [8] At the June 18 step three grievance meeting, in response 
to  Dykhoff's  questions whether Borax would want him to come to
work when he was physically unable, Kevin Long told Dykhoff that  
Borax  wanted him at work. 21 FMSHRC  at 795; Tr. 176-78, 195-96,  
215-16. We do not  understand Long's response to mean that Borax 
wanted Dykhoff to work when he was sick or otherwise unable to 
work. Rather, we read Long's  testimony  as  a statement that,
consistent with its attendance  policy, Borax generally wanted 
to see Dykhoff at work.

     [9] Similarly, if Dykhoff's absences were protected activity, 
as Commissioner Beatty concludes in his dissent (slip op. at 15),
every absence for an illness could also be considered protected 
activity. We are not prepared to stretch the meaning of protected
activity to such a point that every time a miner calls in sick, 
he or she is engaging in protected activity - which is essentially
what the dissent does. Such an approach would trivialize the 
concept of protected activity. It would also interfere with an
operator's ability to administer non-discriminatory time and 
attendance policies, if any action taken by the operator to
enforce its absenteeism policy against miners calling in sick 
was unlawful.

     We do not find persuasive Commissioner Beatty's argument 
that  Borax's  choice of 21 months, instead  of 12 months, to 
evaluate Dykhoff's attendance record is suspect. Slip op. at
16. The record shows that Borax has considered a variety of 
time periods, ranging from one  month to 24 months, when 
evaluating a miner's attendance  record for disciplinary
purposes. Ex. R-3. Further, the terms of the  collective  
bargaining agreement permit Borax to consider a miner's 
absences for up to the preceding two years. See Ex. R-1. 
In any case, even taking the preceding 12 months as the  
appropriate period for determining compliance with Borax's 
attendance policy, Dykhoff's absences, which  included 30
full days, still exceed the threshold of no more than 12 
days.

     [10] The judge did not directly address Dykhoff's argument
that the application of Borax's attendance policy breached an
agreement between Dykhoff and Borax not to count knee brace 
absences for attendance purposes. However, the judge's findings 
that Borax required Dykhoff to wear the braces, and that his 
supervisor was not aware of any exception to the attendance  
policy for absences related to the braces (21 FMSHRC at 794),  
implies that the judge rejected Dykhoff's contention that such 
an agreement existed. In addition, record evidence supports  
this conclusion since Dykhoff's witnesses, including at least
one union official,  could  not  corroborate  Dykhoff's
testimony  regarding  discussion  of such  an agreement with 
Borax.

   [11] In support of his conclusion that "idiosyncratic physical
impairments" cannot serve as  the  basis  for  a protected  work
refusal, the judge erroneously relied  on  a concurring  opinion 
and an unreviewed judge's decision. See 21 FMSHRC at 798 (citing
Price, 12 FMSHRC  at  1519-20 and Collette v. Boart Longyear Co., 
17 FMSHRC 1121, 1125-26 (July 1995) (ALJ). Neither  is  binding
precedent. 29 C.F.R. � 2700.72 ("an unreviewed decision  of  a  
judge is not a precedent binding upon the Commission").

   [12] In light of our disposition of the work refusal issue, 
we do not address the issue of Borax's affirmative defense.


Chairman Jordan, concurring:

     Although I concur with my colleagues' decision to affirm the
judge's dismissal of Dykhoff's complaint, I would characterize
the issue somewhat differently, and so have chosen to write
separately.  This case requires us to consider whether Dykhoff's
absences from work constituted protected activity under section
105(c) of the Mine Act, 30 U.S.C. � 815(c).  As my colleagues
have pointed out, the first element a miner must establish in
order to make out a case of prohibited discrimination under the
Mine Act is to present evidence sufficient to support a
conclusion that he or she engaged in some activity or conduct
that Congress sought to protect from adverse consequences.
Secretary of Labor on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary of Labor on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (Apr. 1981).  Dykhoff contends,
essentially, that his absences from work equate to protected
activity because the absences were necessary to ensure that he
did not injure himself or others.  However, the fact that the
absences may have served to avoid potential injury does not
transform them into protected activity, at least under the facts
of this case.

     It is important to bear in mind that Dykhoff's absences did
not result from any decision or choice in his part.  Dykhoff
concedes that his employer imposed a safety requirement that he
wear leg braces in order to work, PDR 2, and he does not disagree
with the wisdom or necessity of this mandate.  Tr. 24, 25.
Dykhoff's absences occured because he was unable to comply with
this safety rule.

     Dykhoff was not choosing to be absent from work on the days
his braces were unavailable.  He was absent because he did not
have the option of working on those occasions.  An absence from
work that does not result from any decision or choice on the part
of the miner, but occurs solely because the miner is unable to
comply with the employer's safety requirement, does not amount to
protected activity by the miner.  Indeed, I do not think one
would normally characterize that situation as involving any
particular type of conduct or activity (protected or otherwise)
on the part of a miner at all.

     By the same analysis, I agree with my colleagues' conclusion
that Dykhoff's absences cannot be considered a refusal to work
under unsafe conditions.  It seems axiomatic that before a miner
can refuse to work, the employer has to be at least willing to
let the miner come to work.  If a miner does not have the option
of going to work, I do not see how that miner can be said to be
engaged in a work refusal.

     Like my colleagues in the majority, I also decline to adopt
the judge's rationale that a miner's physical condition alone can
never serve as the basis for asserted protected activity.  As my
colleagues have pointed out, the Commission has previously held
that "under appropriate circumstances . . . a miner may refuse to
work on the basis of a perceived hazard arising from his own
physical condition or limitations," slip op. at 8-9, quoting Bjes
v. Consolidation Coal Co. 6 FMSHRC 1411, 1417 (June 1984).

     I also concur in my colleagues' determination that there is
no basis for reversal on the ground of procedural error, and I
agree with the analysis they have set forth to support that
conclusion.


                            Mary Lu Jordan, Chairman


Commissioner Beatty, dissenting:

     Applying the Commission's standard discrimination analysis,
I would find that Dykhoff established a prima facie case that
Borax's issuance of a disciplinary corrective notice to him was
discriminatorily motivated and that Borax failed to either rebut
the prima facie case of unlawful discrimination or establish an
affirmative defense that it would have taken the same action
against Dykhoff for his nonprotected conduct, specifically his
record of absences.  In my view,  substantial evidence[1] fails
to support the administrative law judge's findings that Borax's
issuance of the disciplinary corrective notice to Dykhoff was in
no part motivated by Dykhoff's protected activities and that
Borax had a legitimate business justification for issuing the
corrective notice to Dykhoff because of his excessive absences.
21 FMSHRC at 798-99.  I would instead find that Borax's claimed
business justification for the adverse action taken against
Dykhoff was pretextual.  Accordingly, I would reverse the judge's
decision to dismiss Dykhoff's complaint, and instead conclude
that Dykhoff was disciplined in violation of section 105(c) of
the Mine Act, 30 U.S.C. � 815(c).

     A complainant alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity.
See Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Secretary of Labor on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d
Cir. 1981); Secretary of Labor on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).  The operator
may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
part motivated by protected activity.  See Robinette, 3 FMSHRC at
818 n.20.  If the operator cannot rebut the prima facie case in
this manner, it nevertheless may defend affirmatively by proving
that it also was motivated by the miner's unprotected activity
and would have taken the adverse action for the unprotected
activity alone.  See id. at 817-18; Pasula, 2 FMSHRC at 2799-800;
see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-
43 (4th Cir. 1987) (applying Pasula-Robinette test).

     Unlike the judge and my colleagues in the majority, I do not
believe that this case is properly analyzed as one involving a
protected work refusal.[2]  Instead, I would apply the
Commission's standard discrimination analysis to evaluate the
issue of whether the adverse action taken by an operator against
a miner - the issuance of a disciplinary corrective notice - was
based on the miner's protected conduct.  I begin by considering
whether Dykhoff has made out a prima facie case sufficient to
support a conclusion that he "engaged in protected activity and
that the adverse action complained of was motivated in any part
by that activity."  Robinette, 3 FMSHRC 817-18, and cases cited
above.  As noted above, the record demonstrates that Dykhoff was
an active union member who served as secretary-treasurer and shop
steward for the local union, and was involved in a variety of
union-related health and safety complaints during the period from
1994 through January 1998.  21 FMSHRC at 795-96.  In addition, as
explained below, many of the work absences ostensibly relied upon
by Borax in issuing a corrective notice to Dykhoff may be
considered to be a form of protected conduct since they were
designed to avoid the risk of injury to Dykhoff and other miners.

     Dykhoff's extended absences during the period January-April
1997 and in July 1996, totaling 53 days, were directly
attributable to the unavailability of knee braces while
replacements were being made.  Ex. R-5; Tr. 65-67, 230-31.  As
the result of his deteriorating bilateral knee condition, and on
the recommendation of Dykhoff's physician, Borax required Dykhoff
to wear bilateral knee braces as a condition of his employment,
in order to avoid the possibility of an injury when he operated
the forklift.[3]  21 FMSHRC at 794.  Dykhoff's knee braces were
custom made in order to generate an exact fit based on a cast of
each leg.  Id.  A pair of braces cost approximately $1200, and
they were paid for, and replaced when necessary, by Borax's
insurance carrier.  Id.  When the braces had to be periodically
replaced, it took approximately one month to obtain a new pair.
Id.  During such periods, Dykhoff was prevented from working
without the braces.[4]  Id.  Dykhoff testified that Borax
specifically agreed not to discipline for absences taken on days
when the knee braces were not available.  Tr. 155.  Contrary to
the judge's finding,[5] the Commission has held that exposure to
hazards because of a miner's idiosyncratic physical impairment
may, at least under certain circumstances, give rise to protected
conduct.  See Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1417
(June 1984) (holding that "under appropriate circumstances . . .
a miner may refuse to work on the basis of a perceived hazard
arising from his own physical condition or limitations").

     Thus, the record clearly establishes that, in the period
preceding the adverse action, Dykhoff engaged in protected
conduct.  Moreover, since Borax's discipline of Dykhoff was
admittedly based on his record of absences, several of which were
clearly protected in nature, it is reasonable to conclude that
the adverse action was motivated at least in part by that
conduct.  Accordingly, I conclude that Dykhoff established a
prima facie case that Borax's issuance of a corrective notice was
discriminatorily motivated.  To rebut this prima facie case, or
establish an affirmative defense for the adverse action taken
against Dykhoff, Borax was therefore required to establish that
it was not motivated by Dykhoff's protected conduct or that it
would have disciplined him in any event for legitimate business
reasons - in this case, violation of its attendance policy.  I
conclude, on the basis of the present record, that Borax has
failed to either rebut Dykhoff's prima facie case or establish,
by a preponderance of evidence, an affirmative defense for the
adverse action taken against him.

       Because several of Dykhoff's absences were based upon
protected conduct - that is, the desire to avoid creating a
potentially unsafe situation for Dykhoff and other miners - it
follows that those absences cannot be considered in determining
whether Borax has established a legitimate basis for its issuance
of a corrective notice.  To do so would amount to an admission of
unlawful motivation.  Rather, to prevail, Borax must establish
that it would have discharged Dykhoff for his other, unprotected
absences alone.  On basis of the present record, I find that
Borax has not met this burden.

     Although Borax has no written attendance policy, Personnel
Manager Darryl Caillier testified that its general "rule of
thumb" is that 6 incidents[6], or 12 days of absence, within a
12- month period is considered "excessive" for disciplinary
purposes.  21 FMSHRC at 793; Tr. 43, 55.  The corrective notice
issued to Dykhoff was based on a 21 month review of his
attendance, and stated that during this time period he had been
absent for 71 days on 10 incidents.  Ex. R-6.  Further, it noted
that Dykhoff had missed 13 "partial" days over the prior 6
months.  Id.  Curiously, neither of the time periods referenced
in the corrective notice - 21 months for total absences, or 6
months for partial days off - corresponds to the 12-month period
that Caillier indicated was normally used by Borax to evaluate a
miner's attendance record.  I find Borax's failure to follow its
"rule of thumb" with respect to evaluating Dykhoff's attendance
record troubling.  By using a 21-month standard to review his
attendance, Borax was able to paint a harsher picture of
Dykhoff's record than would be the case under their 12-month
"rule of thumb" policy.  This decision calls into question the
validity of the business justification offered by Borax for the
discipline of Dykhoff, and requires a closer analysis of
Dykhoff's attendance record.

     The record reveals that when the absences based upon
Dykhoff's protected activity are excluded from consideration, 
the remaining absences do not meet Borax's "rule of thumb" for
excessive absences warranting disciplinary action.  For example,
in the 12 months preceding the issuance of the March 6, 1998
corrective notice, Dykhoff had been absent for a total of 30 days
on 5 incidents.  Ex. R-5.  Excluding the fifth incident, which
was based upon the unavailability of the knee braces (Tr. 65-67,
231-32), and the 21 days of absence attributable to the knee
braces in the prior calendar year,[7] leaves a total of 4
incidents and 9 days of unexcused absence in the previous 12
months.  Ex. R-5.  These "unprotected" absences by Dykhoff during
the applicable time period are well within Borax's self-
proclaimed "rule of thumb" standard of 6 incidents, or 12 days of
absence, within a 12- month period.[8]

     Even if Dykhoff's record of absences is evaluated with
respect to the 21-month period selected by Borax, rather than the
12-month "rule of thumb" period it normally used to evaluate
employee absenteeism, his absences do not meet Borax's standard
for taking disciplinary action if we exclude the protected
absences during the periods that knee braces were not available
to Dykhoff.  Of the 10 incidents and 71 days of absenteeism
referenced in the March 6, 1998 Corrective Notice, 2 incidents
involving 53 days were attributable to two periods (January 29-
April 4, 1997; July 2-10, 1996) when Dykhoff was unable to report
to work due to the availability of the knee braces.  Ex. R-5; Tr.
65-67, 230-31.  Thus, excluding these protected absences, Dykhoff
had a total of 8 incidents and 18 days of absences over a 21-
month period, which projects to about 4 incidents and 8� days
over a 12-month period.  Again, this is well within Borax's
established "rule of thumb" standard for determining when an
employee's absences are considered excessive for disciplinary
purposes.

     The majority attempts to construct a straw man by asserting
that under my approach "every absence for an illness" could be
considered protected activity.  Slip op. at 7 n.9.  My conclusion
that Dykhoff's knee brace-related absences were protected is
based on the particular circumstances of this case.
Specifically, record evidence indicated that Dykhoff would pose a
threat to the safety of other miners, as well as himself, if he
operated a forklift without the required knee braces.  Moreover,
the fact that Borax prohibited Dykhoff from reporting to work
when he did not have the knee braces indicates that it also
recognized this potential safety hazard.  Accordingly, my
position herein is entirely consistent with our holding in Bjes
that "under appropriate circumstances . . . a miner may refuse to
work on the basis of a perceived hazard arising from his own
physical condition or limitations."  6 FMSHRC at 1417 (emphasis
added).  While the majority attempts to pay lip service to our
holding in Bjes, their decision completely undermines the legal
efficacy of that decision.

     Based on the foregoing, I find that the record fails to
support Borax's asserted explanation for the issuance of a
disciplinary corrective notice to Dykhoff, and instead indicates
that its claimed justification is pretextual.  Accordingly, I
would conclude that Borax has failed to either rebut Dykhoff's
prima facie case that this disciplinary action was
discriminatory, or to establish an affirmative defense that it
would have taken the same action against Dykhoff for his
nonprotected conduct, namely his record of absences.  Based upon
my determination that the record compels this conclusion, I would
reverse the judge's dismissal of the discrimination complaint and
find that Dykhoff was disciplined in violation of section 105(c)
of the Mine Act.   See American Mine Svcs., Inc., 15 FMSHRC 1830,
1834 (Sept. 1993).

     For the foregoing reasons, I would reverse the judge, and
therefore I respectfully dissent.


                              Robert H. Beatty, Jr., Commissioner


Distribution

Timothy B. McCaffrey, Esq.
O'Melveny & Myers, LLP
400 South Hope Street
Los Angeles, CA 90071

Louis W. Dykoff
16786 Monterey Avenue
N. Edwards, CA 93523

Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1] When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the  
Mine Act to apply the substantial evidence test.  30 U.S.C.
�   823(d)(2)(A)(ii)(I). "Substantial  evidence" means "`such
relevant evidence as a reasonable mind might accept as adequate
to support [the judge's]  conclusion.'" Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison  Co. v. NLRB, 305 U.S. 197, 229 (1938)).  In reviewing the
whole record, an appellate tribunal must consider anything in the
record that  "fairly  detracts"  from  the weight of the evidence
that  supports a challenged finding.  Midwest  Material  Co.,  19
FMSHRC  30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).

     [2] In this regard, I agree with the following reasoning
set forth by Chairman Jordan in her concurring opinion:

          It seems  axiomatic  that  before a miner can
          refuse to work, the employer  has  to  be  at
          least  willing to let the miner come to work.
          If a miner  does not have the option of going
          to work, I do  not  see how that miner can be
          said to be engaged in a work refusal.

Slip op. at 11.

     [3] The record indicates that the requirement to wear knee
braces at work was imposed by Borax  as  a condition of Dykhoff's
continued  employment  following a request for  an  accommodation
under the Americans with  Disabilities  Act  ("ADA"), 42 U.S.C. 
� 12101 et seq. (1994).  Tr. 192, 194-95.

     [4]  Dykhoff  testified  that he asked his  supervisor  to
assign him to perform other, sedentary  work  during  the  period
that his knee braces were being replaced, and was told there  was
no such work available.  Tr. 243.

     [5]  The  cases  cited  by the judge (21 FMSHRC at 798) to
support  his  erroneous  legal conclusion  are  inapposite.   The
judge's citation to Paula  Price  v. Monterey Coal Co., 12 FMSHRC
1501, 1519-20 (Aug. 1990), refers to  the  concurring  opinion of
Commissioner  Doyle  in  a  case that is, in any event, factually
distinguishable from the instant case.  The other case cited, Sam
Collette v. Boart Longyear Co., 17 FMSHRC 1121 (July 1995) (ALJ),
is  a  judge's decision that is  not  precedent  binding  on  the
Commission.  29 C.F.R. � 2700.72.

     [6]  An  "incident"  is comprised of any number of days of
consecutive absences.  21 FMSHRC at 793.

     [7]  Although this incident  resulted  in  46 total days of
absence  by  Dykhoff, during the period from January  29  through
April 4, 1997,  only  21 of these days of absence occurred in the
12-month period preceding  the  March  6, 1998 corrective notice.
Ex. R-5.  Dykhoff testified that the knee  braces  took  twice as
long  as  normal  to  replace  on this occasion because they were
constructed improperly and therefore  had  to be sent back to the
manufacturer and rebuilt.  Tr. 239-40.

     [8] In the absence of any evidence that  partial  absences
were considered the same as full absences, or treated as separate
incidents,  under  Borax's  informal attendance policy, I do  not
believe  that the 13 "partials"  referred  to  by  Borax  in  the
corrective  notice would have been otherwise sufficient to render
Dykhoff's  record   of  absences  over  the  previous  12  months
excessive.  Notably,  Borax's own summary of prior discharges for
excessive absenteeism indicates  that  all  of  the 13 corrective
notices, and 9 of  the 11 terminations listed, made  no reference
to - and thus were presumably not based upon - partial  absences.
Ex.  R-3.   I also note that the majority of the partial absences
attributed to  Dykhoff were for periods of less than 2 hours, and
that the total time  lost  by  Dykhoff  as  a  result  of  the 13
"partials" was 30 hours.  Ex. R-5. One of these partial absences,
on March 3, 1998, which accounted for 7 of the 30 total hours, 
was related to Dykhoff's absence on March 4-6, 1998, while he was 
under the influence of Percodan  used  to  treat  a jaw infection 
resulting from  major dental  work.  21 FMSHRC  at 794;  Ex. R-5;
Tr. 232-33.