U.S. Borax Incorporated

Plain-English summary

Louis W. Dykhoff, Jr. worked as a shipping operator at U.S. Borax's borax mine and processing facility in California. He claimed that a corrective notice for excessive absenteeism was motivated by his safety-related union activity and by his refusal to work while taking prescribed pain medication. Judge Jerold Feldman dismissed the discrimination complaint, finding that Dykhoff did not tell management about the medication when the corrective notice was prepared, and that a work refusal based only on a personal medical condition was not protected under the Mine Act. The judge also found no evidence that Dykhoff's earlier safety complaints motivated the discipline. The Commission later reviewed the docket.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2); 30 U.S.C. § 815(c)(3)
• Outcome: The discrimination complaint was dismissed.
• Subsequent review: The Commission later reviewed this docket in west-99-26-dm-commission.
• Key point: A work refusal must concern a mine hazard or condition controlled by the operator and must be communicated before discipline to qualify for Mine Act protection.

Full text (FMSHRC public release)

.
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.