.
U.S. BORAX INCORPORATED
July 7, 1999
WEST 99-26-DM

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                          July 7, 1999

LOUIS W. DYKHOFF, JR.,         : DISCRIMINATION PROCEEDING
               Complainant     :
          v.                   : Docket No. WEST 99-26-DM
                               : MSHA Case No. WE MD 98-17
U.S. BORAX INCORPORATED,       :
               Respondent      : Mine ID No. 04-00743
                               : Boron Operations

                            DECISION

Appearances: Louis W. Dykhoff, Jr., pro  se, North Edwards, 
             California, for the Complainant;
             Neil M. Herring,  Esq.,  on the brief, Sebastopol,
             California, for the Complainant;
             Andrew T. Kugler, Esq., O'Melveny & Myers LLP,
             Los Angeles, California, for the Respondent.

Before: Judge Feldman

     This case is before me based upon a discrimination complaint
filed  on  October  19,  1998,  with  this Commission pursuant to
section 105(c)(3) of the Federal Mine Safety  and  Health  Act of
1977,  30  U.S.C.  815(c)(3) (the Act).  The complaint was filed
by Louis W.  Dykhoff,  Jr.,  against  the  respondent, U.S. Borax
Incorporated (Borax).  This matter concerns  Dykhoff's claim that
the March 6, 1998, disciplinary notice for excessive absenteeism,
given  to  him  by  Borax on March 12, 1998, violated  the  anti-
discriminatory provisions  of  section  105(c) of the Act because
the  disciplinary action was motivated by  his  concern  for  his
personal  safety.[1]   Consequently,  the  relief  sought in this
matter  is the removal of the disciplinary action from  Dykhoff's
personnel records.

     Section 105(c) of the Act provides, in pertinent part:

     No person  shall  discharge  or  in  any manner discriminate
     against . . .  any miner . . . because such miner . . .  has
     filed  or  made a complaint under or related  to  this  Act,
     including  a   complaint   notifying  the  operator  or  the
     operator's agent . . . of an  alleged  danger  or  safety or
     health violation in a coal or other mine . . . .

     This  case  was  heard on April 27, 1999, in San Bernardino,
California.  Dykhoff appeared  in  his  own  behalf.  Dykhoff was
assisted  at  the hearing by Ray Panter, the Business  Agent  for
Local 30 of the  International  Longshoremen's and Warehousemen's
Union (the ILWU).
Neil  M.  Herring, as Dykhoff's counsel,  filed  Dykhoff's  post-
hearing brief  on  June 15, 1999.  Borax's post-hearing brief was
filed on June 16, 1999.

      Dykhoff's discrimination  complaint  primarily  is based on
his allegation that the March 6, 1998, Corrective Notice issued 
to him by Borax  on March 12,   1998,  for  excessive absenteeism
was motivated by his protected refusal to come to work during the 
period March 3 through  March  6, 1998.  Specifically, Dykhoff  
asserts he was absent from work  during  this  period  because he 
was under the influence of Percodan, a narcotic pain reliever 
prescribed for a jawbone infection. Consequently, Dykhoff contends 
he would have been a danger to himself or others at his job as a 
shipping fork-lift operator  because  he  was  heavily medicated.  
In addition, while not specifically advanced in his initial 
complaint, Dykhoff now claims Borax's disciplinary action concerning
his absenteeism was also motivated by his history  of a variety of
periodic union related safety and health complaints that he  made 
from 1994 to 1998.

     For  the  reasons  discussed below, Dykhoff's discrimination
complaint is dismissed because  it  is undisputed that his reason
for  not reporting to work, i.e., because  he  was  incapacitated
because he was taking a narcotic medication, was not communicated
to Borax  prior  Borax's  decision  to  issue  the March 6, 1998,
Corrective  Notice.  Moreover, even Dykhoff had communicated  his
reported inability  to  work due to his dental treatment prior to
his written discipline, his  work  refusal is not protected under
the Mine Act because it concerns his  personal  condition, rather
than  his  exposure  to  a  hazardous  condition  of  employment.
Finally,  given  Dykhoff's history of excessive absenteeism,  the
issuance  of  the Corrective  Notice  immediately  following  his
latest period of  absenteeism,  and  the  lack of any evidence of
disparate  treatment,  there  is  no  basis for  concluding  that
Dykhoff's long history of union related  safety  activities was a
motivating  factor  in  the  March  6, 1998, disciplinary  action
complained of.

     Preliminary Findings Of Fact

     U.S. Borax Incorporated is a publicly-held corporation 
that operates a borax  mine and processing facility in Boron,
California.    For  purposes   of   collective   bargaining,
nonmanagement personnel working at the plant are represented
by the ILWU.

     Borax employees accrue 80 hours of sick leave a year and 
can carry over up to  one  week of unused sick leave into the
following year until they accrue a  maximum  of  nine  weeks.
After  nine  weeks  are  accrued  employees  can  accrue  an
additional one week of sick leave per year.  Adding one week
of  accrued  sick  leave  each  year  to  the base nine week
maximum, an employee can accrue an unlimited  amount of sick
leave.

     Borax  has  no written excessive absenteeism policy and
administers  disciplinary  action  on  a case-by-case  basis
because  there  are too many variables to  establish  a  set
policy.   (Tr. 55).   The  collective  bargaining  agreement
provides that  absences  more  than two years old may not be
the basis for disciplinary action.  Absences necessitated by
bona fide illness, even if certified  by  a  physician,  are
considered  for excessive absenteeism disciplinary purposes,
while absences due to vacation, union business, funeral leave,
industrial injury, or leave granted under the Family Medical 
Leave Act, are not counted. Personnel Manager Darryl Caillier
testified, as "a rule of thumb," six "incidents", or 12 days 
of absence, within  a  12  month  period,  could  be  deemed
excessive.  (Tr. 43).   An  "incident"  is  comprised of any
number  of  days  of  consecutive  absences.   Although  the
company uses this threshold standard to initiate checking an
employee's  attendance  record, Caillier conceded  employees
are not generally familiar  with  any set company sick leave
abuse policy or standard.

     Borax has a progressive system of disciplining employees
with  excessive  absenteeism.   The  first  step  is  verbal
counseling.  The second step is a Corrective Notice.  If the
problem persists,  the  third step is a written warning.  If
the problem is not corrected, the next steps are disciplinary 
time off and ultimately discharge. During the period June 1987 
through January 1998, eleven employees were discharged for 
excessive absenteeism.  The discharged employees had received
Corrective Notices  and  a series of additional disciplinary
warnings prior to their discharge.   (Tr. 48-50; Resp.'s Ex.
3).

     There  are four steps in the union's grievance procedure.
Step One is a verbal  meeting  with the employee's immediate
supervisor.  Step Two is meeting with the supervisor after a
verbal and written warning.  Step  Three  is  a meeting with
the  company's  Human  Resources  Department.  Step  Four  is 
arbitration.

     Dykhoff has been employed by Borax since January 2, 1979.
He is currently  employed as a shipping operator in  Plant 9.
Dykhoff's responsibilities  as  a  shipping operator include
operating  a  fork-lift for the purpose  of  loading  packed
product into railcars and trucks.  Dykhoff's duties also had
included  lifting   heavy   objects   and  climbing  stairs.
However, since undergoing knee surgery in July 1994, Dykhoff
has experienced increasing difficulties  performing the full
range  of his duties due to a deteriorating  bilateral  knee
condition.  To  accommodate  Dykhoff's physical limitations,
pursuant  to  the  recommendations   of   Dykhoff's  private
physician,  Borax  modified  Dykhoff's  shipping  duties  to
reduce the amount of lifting and climbing  required  of him.
The  accommodations  apparently  were  accorded  to  Dykhoff
consistent   with  the  provisions  of  The  Americans  With
Disabilities Act.

     In addition, since 1995, consistent with the recommendation
of Dykhoff's physician, in order to avoid the  possibility  of
Dykhoff  sustaining  an   injury   due   to   his  bilateral
instability,  Borax required Dykhoff to  wear  bilateral  knee
braces as a condition  of  his  employment.   Dykhoff's knee
braces  were custom made in order to generate an  exact  fit
based on  a  cast  of  each  leg.   A  pair  of  braces cost
approximately  $1,200  and  they were paid for, and replaced
when necessary, by Borax's insurance  carrier.   The  braces
had  to be replaced periodically.  In such circumstances  it
took approximately  one  month to obtain a new pair.  During
such periods, Dykhoff was prevented from working without the
braces.  Dykhoff stated the  insurance company would not pay
for, and he could not afford,  a back-up pair of braces that
would prevent his absence from work  for extended periods of
time.  Dykhoff kept the company informed during periods when
he  could  not  report  to  work  because  his  braces  were
unavailable.

     In December 1996, Dykhoff's  supervisor, Chuck  Amento,
requested  Personnel  Manager  Caillier to obtain a copy  of
Dykhoff's attendance record.  On December 6, 1996, Dykhoff's
personnel record reflected Dykhoff  had  been  absent  for 7
incidents totaling 21 days in the preceding 12 month period.
(Resp.'s  Ex.  4).   Although Caillier believed a Corrective
Notice was warranted,  Amento  verbally warned Dykhoff about
his absenteeism.  (Tr. 52-55).

     Mike King was Borax's shipping foreman from January 1997
until he  was  replaced  by  David  Leach  in  January  1998.
During this time, King was responsible for keeping Dykhoff's
attendance    records.    Although   King   was   aware   of
accommodations  that  were  made for Dykhoff due to his knee
impairments, King was not aware  of  any  special exceptions
that had been granted to Dykhoff concerning  leave.   On  or
about  October  20, 1997, King verbally warned Dykhoff about
excessive absenteeism.   (  Tr.  120-24; Resp.'s Exs. 8, 9).
King testified it was his decision  to verbally warn Dykhoff
about his absenteeism, and that he had not been requested to
do so by any other company official.   (Tr.  124).   At  the
time  of  the  warning,  Dykhoff  told King that the company
could not count his absenteeism that  was caused by his knee
problems.   King told Dykhoff he was not  aware  of  such  a
company policy.  (Tr. 120-24).

     On March 3, 1998,  Dykhoff reported  to work  and worked 
one hour. He then advised his supervisor, David Leach, that he
was taking sick leave due to a dental problem.  Dykhoff  also
did  not report for work on March 4,  March  5  or  March  6.
Although  Dykhoff  stated  he  told Leach he was taking sick
leave because of dental problems,  Leach  did  not  remember
such  a  conversation.   However,  Borax  does  not question
Dykhoff's reported dental treatment and it does not  contend
that Dykhoff's March 3 through March 6, 1998, sick leave was
not approved.

     Leach was aware that Dykhoff had frequently been absent 
from work.  Consequently,  on March 6, 1998, Leach requested
Borax's Personnel Department to check Dykhoff's  absenteeism
record.   The  Personnel  Department determined Dykhoff  had
missed 71 full days of work and 13  partial  days  of  work  
in the previous 21 months. Consequently, a Corrective Notice 
was written for Dykhoff on March 6, 1998.  The Notice was 
signed by Leach and Caillier. It stated:

     Corrective  Notice for excessive absenteeism.   In  the
     last 21 months  you have missed 71 days on 10 incidents
     plus 13 partial days  over  the  past  6  months.  This
     record   is   not  acceptable  and  must  be  corrected
     immediately or stronger action will be taken.  (Resp.'s
     Ex. 6).

     The Corrective Notice was given to Dykhoff by Leach during a
March 12, 1998, meeting.   The meeting was also attended by Union
Shop Steward Gary Baxter.  Baxter  testified  that  he  could not
recall Dykhoff providing any reasons for his latest absences from
March  3 through March 6, 1998.  (Tr. 173).  The March 12,  1998,
meeting apparently was Step Two in the union grievance procedure.

     Step  Three of the grievance process was conducted in a June
18, 1998, meeting  with Human Resources.  The personnel relations
official representing  the  company  was Kevin Long.  Dykhoff was
accompanied  by  James Bates, a Borax warehouseman  who  was  the
Secretary-Treasurer  of  the  union.   Bates  testified  that  he
recalled  Dykhoff  asking Long if Long wanted him to come to work
even if he was under  the  influence  of  Percodan.  Bates stated
Long responded that he wanted Dykhoff at work.   Consistent  with
Bates  testimony,  Dykhoff  stated  that  he initially raised the
issue of working under the influence of Percodan  in the June 18,
1998, Step 3 grievance meeting with union and company  officials.
(Tr. 176-83).

     Dykhoff  filed  his  initial  discrimination complaint  that
serves as the basis for this proceeding  on  July  20,  1998.  He
requested  that  the  disciplinary  notice  be  removed  from his
record.  His complaint, in pertinent part, states:

          On March 12, 1998, I was disciplined for excessive
     absenteeism.  On at least three of the incidents, I had
     major dental work done and a massive jawbone infection.
     The  Dentist had prescribed Percodan, which is a triple
     form,  highly controlled narcotic for pain.  Due to the
     fact that I could not function safely while taking this
     prescribed  medication,  and  on two of the occasions I
     had only slept
     3 hours out of 72 hours, I stayed  home.  The grievance
     meeting  was  not  scheduled until June  18,  1998  for
     reasons beyond my control.  At the meeting, I explained
     to  Mr.  Kevin Long (Manager/Human  Resources),  why  I
     missed time  on  these  specific  dates.  I referred to
     page 175, Sec.20001 of 30 CFR/56/57/58,  and  asked him
     if he wanted me working in the plant in that condition.
     His response was, `we want you at work'.  I then  asked
     him if I came to work in that condition and got hurt or
     hurt  somebody,  would I be in trouble.  His answer was
     the same.  I also  asked  him if I came to work in that
     condition and had an accident and was drug tested under
     the Company's Drug Testing  Policy,  would I have to go
     through the 5 year Rehab period or worse, be terminated.  
     Again his only response  was, `we want  you to  come to 
     work'.

     Dykhoff has been an active union member,  previously serving
as the Secretary-Treasurer of Local 30 of the ILWU,  as well as a
shop steward in the shipping department.  During the period  1994
through  January 1998, Dykhoff was involved in a variety of union
related health  and safety complaints.  With the exception of the
subject March 6,  1998,  Corrective  Notice,  it has neither been
contended nor shown that Dykhoff has ever experienced any adverse
action  as a result of his union activities.  In  fact,  although
the ILWU  filed  a  union  grievance  alleging the March 6, 1998,
Corrective  Notice was issued without just  cause,  there  is  no
evidence that  the  union contended Dykhoff's disciplinary notice
was in any way related  to  his  union safety related activities.
Moreover, after Borax denied the union's  grievance  at Step 3 of
the grievance process, the union decided not to pursue the matter
further   by   electing   not  to  take  Dykhoff's  grievance  to
arbitration.

     Further Findings and Conclusions

     Dykhoff, as the complainant  in this case, has the burden of
proving a prima facie case of discrimination under section 105(c)
of  the  Mine Act.  In order to establish  a  prima  facie  case,
Dykhoff must  establish  that  his  failure  to come to work from
March  3  through  March 6, 1998,  constituted a  protected  work
refusal, and, that the adverse action complained of, in this case
the March 6, 1998, Corrective  Notice,  was  motivated,  in  some
part, by that protected activity. See  Secretary  on  behalf  of 
David Pasula v. Consolidation Coal Co.,  2 FMSHRC 2786, 2797-2800  
(October  1980)  rev'd  on  other grounds sub nom. Consolidation 
Coal Co. v. Marshall, 663 F.2d  1211  (3d  Cir.  1981); Secretary
on behalf of Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 
803, 817-18 (April 1981).

     Borax may rebut a prima facie case by demonstrating,  either
that  no protected activity occurred, or, that the adverse action
was not  motivated in any part by protected activity.  Robinette,
3 FMSHRC at  818  n.20.   The  respondent  may also affirmatively
defend  against a prima facie case by establishing  that  it  was
also motivated  by  unprotected  activity  and that it would have
taken the adverse action for the unprotected activity alone.  See
also Jim Walter Resources, 920 F.2d at 750,  citing with approval
Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d  639,  642 (4th
Cir.  1987); Donovan v. Stafford Construction Co., 732 F.2d  954,
958-59  (D.C.  Cir.  1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically  approving the Commission's Pasula-
Robinette test).

     The gravamen of Dykhoff's discrimination  complaint  is that
Borax's   disciplinary   action    was   motivated  by  Dykhoff's
protective  work  refusal.  Although the Act  grants  miners  the
right to express safety  and health related concerns, it does not
expressly  grant  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  perceived
dangers.   See  Secretary  of Labor on behalf of Cooley v. Ottawa
Silica Co., 6 FMSHRC 516, 519-21  (March  1984),  aff'd mem., 780
F.2d 1022 (6th Cir. 1985); Price v. Monterey Coal Co.,  12 FMSHRC
1505,  1514  (August  1990) (citations omitted).  In order to  be
protected, work refusals  must  be  based  upon the miner's "good
faith, reasonable belief in a hazardous condition."  Id.; 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.  Robinette,  
3 FMSHRC at 807-12; Secretary of Labor on behalf of Bush v. Union 
Carbide  Corp,  5 FMSHRC 993, 997 (June 1983).

     Assuming,  solely  for the sake of argument, that  Dykhoff's
refusal to report to work  from  March  3  through March 6, 1998,
because  he  was  under  the  influence of a prescribed  narcotic
medication is entitled to Mine  Act protection, it is fundamental
that,  for a work refusal to be protected,  a  miner  must  first
communicate  his  safety  concerns  to some representative of the
operator.  Secretary of Labor on behalf  of  Dunmire  v. Northern
Coal Co., 4 FMSHRC 126, 133 (February 1982).  In this regard, the
Commission has held that, "[p]roper communication of a  perceived
hazard is an integral component of a protected work refusal,  and
responsibility  for  the  communication  of  a belief in a hazard
underlying  a  work refusal lies with the miner."   Conatser,  11
FMSHRC AT 17, citing  Dillard  Smith v. Reco, Inc., 9 FMSHRC 992,
995-96 (1987).  "[T]he communication  requirement  is intended to
avoid situations in which the operator at the time of  a  refusal
is  forced  to divine the miner's motivations for refusing work."
Smith, 9 FMSHRC  995.   The  miner's  failure  to communicate his
safety concern denies the operator an opportunity  to address the
perceived  danger  and,  if  permitted, would have the effect  of
requiring the Commission to presume  that the operator would have
done  nothing  to  address  the miner's concern.   Id.   Thus,  a
failure to meet the communication  requirement  may  strip a work
refusal of its protection under the Act.

     Consequently,  before addressing whether the reasons  for  a
work refusal are protected, we must consider, as  a threshold 
matter, whether the reasons for refusing to work were communicated
to the operator. Here, union steward Baxter, called  as a witness 
for Dykhoff, testified Dykhoff did not communicate to Leach during
the March 12, 1998, Step 2 grievance meeting that Dykhoff's absence
was necessitated by his use of a narcotic drug. In fact, Dykhoff 
concedes the issue of his use  of Percodan  as the reason for his 
absence was not communicated to company officials until the June 
18, 1998, Step Three grievance meeting.  As a consequence, the 
issue of the protected nature of Dykhoff's work refusal based on 
his use of Percodan is  not  material  because Dykhoff's Percodan 
use was unknown to management when the  Corrective  Notice  was 
prepared on March 6, 1998.   Thus,  it  could not have motivated,  
in any part, the adverse action complained of by Dykhoff.

     Notwithstanding  the  communication  issue,  a  work refusal
based on illness or physical impairment is not protected  by  the
Mine  Act.   The  parameters  for  a  protected work refusal were
initially addressed in the report of the  Senate  committee  that
primarily  was  responsible for drafting the 1977 Mine Act.  That
report states, "[section  105(c)  of the Mine Act] is intended to
give miners, their representatives,  and applicants, the right to
refuse  to  work  in  conditions they believe  to  be  unsafe  or
unhealthful and to refuse to comply if their employers order them
to violate a safety and  health  standard  promulgated  under the
law."   (Emphasis  added).   S. Rep. No. 95-181, 95th Cong.,  1st
Sess.,  at  35-36 (1977), reprinted  in  Senate  Subcommittee  on
Labor, Committee  on  Human  Resources,  95th  Cong.,  2nd Sess.,
Legislative History of the Federal Mine Safety and Health  Act of
1977, at 623-24 (1978).

     Thus,  even  if  the nature and extent of Dykhoff's physical
impairment had been communicated  to  Borax  as the basis for his
refusal to come to work, exposure to hazards because of a miner's 
idiosyncratic physical impairment, where the working  conditions  
and practices of the mine operator are otherwise  safe, does not 
give rise to a protected work refusal. See Paula Price v. Monterey 
Coal Company, 12 FMSHRC 1505, 1519-20 (August 1990)  (concurring  
opinion);  see  also  Sam Collette v. Boart  Longyear  Company,  
17  FMSHRC  1121, 1125-26 (July  1995) (ALJ).  While it is true 
that miners have  an  absolute  right to make  good  faith safety  
or  health  related  complaints,  this absolute   right  applies 
to complaints  about hazardous mine practices or conditions over 
which the operator has control.[2] Pasula, 2 FMSHRC at 2793; 
Robinette  3  FMSHRC  at 807.  Dykhoff does not contend that the 
fork lift he was operating  was unsafe, or, that the  generic  
performance  of  his  job  duties  was   hazardous. Accordingly,  
the  reasons  for  Dykhoff's  work refusal are  not protected 
even if they had been communicated to mine management.

     In  the  final analysis, this Commission's  jurisdiction  is
limited to ensuring  that  miners'  rights under the Mine Act are
protected.  The Commission's role is not to pass on the wisdom or
fairness of the asserted justifications for a particular business
decision, but rather to determine if such business justifications 
are credible  and  would  have motivated the operator as claimed.  
See Lonnie Ross and Charles  Gilbert v.  Shamrock  Coal  Company, 
Inc., 15 FMSHRC 972, 975 (June 1993) citing Bradley v. Belva Coal 
Company, 4 FMSHRC 982, 993 (June 1982). In this regard, "the 
Commission and its judges  have neither the statutory charter nor 
the  specialized  expertise  to  sit a s  a  super  grievance  or  
arbitration  board  meting  out  industrial  equity."  Marvin E. 
Carmichael v. Jim Walter Resources, 20 FMSHRC 479, 486-87, n.13 
(May 1998) (citations omitted).

     The  credibility  and  reasonableness  of  Borax's  asserted
business  justification for disciplining  Dykhoff  for  excessive
absenteeism, despite  Dykhoff's  physical  impairments, are  self 
evident.  In  fact,  the  Commission  has  recently  rejected  a 
discrimination  claim  filed  by  a  complainant  with  a  back  
impairment, noting that actions taken  by  an  operator because a 
miner cannot meet the physical requirements of a job are legitimate 
business decisions that are not subject to Mine Act  intervention.
Secretary  of  Labor  o.b.h. William Kaczmarczyk, 21  FMSHRC      , 
slip op. at 10 (June 15, 1999). Any recourse Dykhoff may have under
the Americans With Disabilities Act is beyond the scope of this 
mine safety proceeding.

     Finally, Dykhoff asserts, despite his total 71 days of absence 
preceding the Corrective Notice, that the Corrective  Notice  was  
motivated by his  safety related union activities.  As noted above,  
even  the union   grievance  did  not  allege that Dykhoff's March  
1998 disciplinary notice was motivated by his union activities that
date  back  to  1994.  Nor is there  any  evidence  of  disparate
treatment that would warrant a finding that the Corrective Notice
was a subterfuge  that  was  actually  motivated  by a desire for
retaliation  because  of Dykhoff's safety complaints.   In  fact,
several of the employees  previously  discharged  for absenteeism
had significantly fewer absences than Dykhoff.  (See  Resp.'s  Ex
3).   Thus,  there  is  no  credible evidence that Dykhoff's past
safety complaints played any part in his discipline for excessive
absenteeism.

     In summary, as previously  noted,  "the  Commission  has  no
responsibility  to  assure fairness in employment relations or to
determine whether an  employee was discharged for cause, but only
to protect miners exercising  their rights under the Act."  Jimmy
Sizemore and David Rife v. Dollar  Branch  Coal Company, 5 FMSHRC
1251,  1255  (July 1983) (ALJ).  Dykhoff's history  of  protected
safety complaints made in his capacity as a union official cannot
insulate him from  conduct that is not protected by the Mine Act,
i.e., a poor attendance record, that, in the exercise of business
judgment, provides a reasonable basis for disciplinary action.

                              ORDER

     In view of the  above,  Louis W. Dykhoff, Jr., has failed to
carry his burden of proving that  the  March  6, 1998, Corrective
Notice for excessive absenteeism was motivated,  in  any part, by
any activity that is protected under section 105(c) of  the  Mine
Act.    Accordingly,   Dykhoff's   discrimination   complaint  IS
DISMISSED.

                                   Jerold Feldman
                                   Administrative Law Judge

Distribution:

Mr. Louis W. Dykhoff, Jr., 16796 Monterey Avenue, North Edwards, 
CA 93523 (Certified Mail)

Neil M. Herring, Esq., 503 Sandretto Drive, Sebastopol, CA 95472 
(Certified Mail)

Andrew T. Kugler, Esq., O'Melveny & Myers, LLP, 400 South Hope    
Street, Los Angeles, CA 90071 (Certified Mail)

  
\mh

**FOOTNOTES**

     [1]: Dykhoff's complaint which serves as  the jurisdictional
basis for this case was filed with the Secretary of Labor on July
20,  1998, in accordance with section 105(c)(2) of  the  Act,  30
U.S.C.   815(c)(2).  Dykhoff's complaint was investigated by the
Mine Safety  and  Health  Administration (MSHA).  On September 9,
1998,  MSHA  advised  Dykhoff  that  its  investigation  did  not
disclose any section 105(c)  violations.   On  October  19, 1998,
Dykhoff  filed  his discrimination complaint with this Commission
which is the subject of this proceeding.

     [2]: There may  be  circumstances  where a mine condition or
practice  contributes  to  a miner's physical  limitations.   For
instance, fatigue caused by an operator's insistence that a miner
work extended periods of overtime  may  give  rise to a protected
work refusal.  In such circumstances it is the  mine condition or
practice  that  creates  the  hazard.  Secretary of Labor  o.b.o.
Lonnie Bowling and Darrell Ball  v.  Mountain  Top  Trucking Co.,
Inc., et al., 19 FMSHRC 166, 196 (January 1997) (ALJ)  (citations
omitted); rev'd on other grounds, 21  FMSHRC  265  (March  1999).  
However, such circumstances are not applicable in the present case.