dissenting.
I agree with the majority’s conclusion that the Arbitrator’s decision in this case was not binding on the ALJ or on the Commission. However, I dissent from its action in reversing the decision of the Commission. The basis for my disagreement with my colleagues stems from their approach, illustrated by the last paragraph of the majority opinion, where they state:
The record fully supports the conclusion that Pasula was not disciplined because he refused to work but rather because he exceeded the scope of his right to walk off the job under the Mine Act. The “real” reason for his dismissal was that he turned off the continuous miner, machine.
Majority opinion at 1221 (emphasis added). Whatever validity the majority’s view might have if we were reviewing a Commission “conclusion” that Pasula was ap*1222propriately discharged because he turned off the continuous miner machine and not because he complained or exercised his right to walk off the job under the Mine Act, that is not the conclusion that the Commission reached. Indeed the Commission made precisely the opposite finding.
The AU, who had the best opportunity to determine what actually happened because he heard the testimony of the witnesses first hand and could observe their demeanor, found:
There is no doubt in my mind that Mr. Pasula was discharged because he was complaining about the noisy machine and demanding that a noise level test be made....
I think management had had enough of Mr. Pasula and his health or safety complaints and decided to get rid of him.
Appendix at 35a. The ALJ considered and expressly rejected the employer’s contention that a dispositive factor in Pasula’s discharge was Pasula’s “refusal to allow anyone else to operate the continuous miner.”
On appeal, the Commission noted that the complaint filed by the Secretary of Labor did not allege that Pasula was fired for filing or making a safety complaint (as the AU had found) but instead alleged that Pasula was fired for engaging in the allegedly protected activity of refusing to work “in unsafe and unhealthful conditions.” Appendix at 59a, 56a. Thus the Commission undertook an inquiry into whether section 105(c)(1) of the 1977 Mine Act protects a miner’s refusal to work. After a comprehensive review of the various statutory provisions, the purpose of the Act, and the legislative history, the Commission unanimously decided that,
The successful enforcement of the 1977 Mine Act is therefore particularly dependent upon the voluntary efforts of miners to notify either MSHA officials or the operator of conditions or practices that require correction. The right to do so would be hollow indeed, however, if before the regular statutory enforcement mechanisms could at least be brought to bear, the condition complained of caused the very injury that the Act was intended to prevent. A holding that miners have some right to refuse work under the 1977 Mine Act therefore appears necessary to fully effectuate the congressional purpose.
Appendix at 60a. I agree with the majority that “the statutory scheme, in conjunction with the legislative history of the 1977 Mine Act, supports a right to refuse to work in the event that the miner possesses a reasonable, good faith belief that specific working conditions or practices threaten his safety or health.” Majority opinion at 1217 n.6.
Having decided the Act protects some right to refuse to work, the Commission, without setting forth the parameters of that right, undertook to ascertain whether Pasula’s action in this case fell within such protected activity. After considering the record, the Commission concluded that “in this case the miner’s refusal to work was protected under the 1977 Mine Act.” It explained its conclusions as follows:
Pasula refused to obey Consol’s order to work because he believed the work conditions to be unhealthful. He contacted Consol management officials to obtain corrective action, but this was unavailing. He requested an MSHA inspection. His good faith belief was reasonable, and was directed to a hazard that we consider sufficiently severe whether or not the right to refuse work is limited to hazards of some severity. Pasula was not merely speculating that he might in the future suffer from the effects of loud noise, but he was already so suffering when he stopped the machine. He was not equipped with personal hearing protectors, he had already been or would have shortly been exposed to more noise than permitted by the applicable mine health standard, and he was also operating a machine that requires substantial attention to its operation. In view of his actual suffering, his view that he was exposed to unhealthful and excessive noise levels *1223was reasonable and was supported by objective, ascertainable evidence.
Appendix at 63a.
The Commission then turned to the final question before it, the reason for Pasula’s discharge, and found that “Pasula’s firing was motivated at least in part by his engaging in a protected activity.” Appendix at 66a. In response to the employer’s contention that Pasula was fired for refusing “to permit anyone else to operate” the machine, the Commission found that even if it were to assume that Pasula was fired also in part for engaging in that presumably unprotected activity, “There is insufficient evidence to find that Pasula would have been fired for engaging only in the unprotected activity.” Id. In other words the Commission applied the now-accepted “but for” rule in “mixed motivation cases”, see, e. g., Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 671 (1st Cir. 1979), which has been accepted by this court. NLRB v. General Warehouse Corp., 643 F.2d 965, 972 (3d Cir. 1981); Gould Inc. v. NLRB, 612 F.2d 728, 734 (3d Cir. 1979), cert. denied, Moran v. Gould, 449 U.S. 890, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980); Edgewood Nursing Center, Inc. v. NLRB, 581. F.2d 363, 368 (3d Cir. 1978). Applying this rule, the Commission found that even if part of the motivation for the discharge was justifiable, Pasula would not have been discharged if he had not engaged in protected activity. Appendix at 66a, 71a.
I believe that the majority opinion reversing the Commission’s judgment contains serious errors of both law and fact. The legal error is its disregard of the appropriate standard of review. The factual error is its disregard of the substantial evidence in the record which amply supports the factual findings of both the AU and the Commission that Pasula was discharged for engaging in protected activity.
Section 106 of the 1977 Mine Act provides that “[t]he findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive” on the reviewing courts. 30 U.S.C. § 816(a)(1) (Supp. Ill 1979).
The Supreme Court has defined “substantial evidence” as “something less than the weight of the evidence,” noting that “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). We have frequently held that, “[a] court may not displace an administrative body’s ‘choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.’ ” Palmer v. Celebrezze, 334 F.2d 306, 308 (3d Cir. 1964) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). Accord, American Iron & Steel Institute v. OSHA, 577 F.2d 825, 831 (3d Cir. 1978), cert. denied, 448 U.S. 917, 101 S.Ct. 38, 65 L.Ed.2d 1180 (1980); see K.C. Davis, Administrative Law of the Seventies § 29.00 (1976 & Supp.1980). As Judge Hunter recently observed in a similar context:
We are limited in our review of National Labor Relations Board decisions. If the Board’s findings are supported by substantial evidence on the record, we are obliged to enforce them. We are also bound to respect the Board’s conclusions on credibility and conflicting evidence if they take into account all relevant factors and are sufficiently explained. . . .
Although we might make a different decision if we were to decide the case de novo, ... we must defer to the Board’s decision if it is substantially supported by the record.
NLRB v. General Warehouse Corp., 643 F.2d 965, 971, 972 (3d Cir. 1981) (Hunter, J.) (citations omitted).
In determining whether there was “substantial evidence” to support the administrative decision, a court must determine whether the record contains “ ‘such relevant evidence as a reasonable mind might accept *1224as adequate to support a conclusion,’ ” Con-solo v. Federal Maritime Commission, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). The majority’s misperception of its role in this case is evident. It never seeks to review the evidence in the record which supports the Commission’s finding that Pasula was discharged, at least in part, for engaging in protected activity. Instead it has undertaken to review the evidence to see whether there is any which would support findings or factual conclusions contrary to those reached by the Commission and, in doing so, has arrogated to itself the fact-finding function.
Significantly, the majority is itself simply wrong in making its key finding that “Pasula was discharged for engaging in the unprotected activity of shutting down the continuous miner machine”, majority opinion at 1216 (emphasis added). The parties do not dispute the fact that the continuous mining machine “was noisier than usual” because of the replacement of gears, and that “Pasula operated the machine for about an hour and a half, but stopped the machine because the noise gave him an ‘extreme headache’, made his ears hurt, and made him nervous.” Appendix at 56a, 57a. (emphasis added). After Pasula stopped the machine, he “told Consol about the noise and physical problems, and requested that a noise level reading be taken by Con-sol or by federal inspectors before he operated the machine any more.” Appendix at 57a. Consol refused to take a noise level reading, refused to call in the federal inspectors, and instead undertook only to follow the procedures established under its collective bargaining agreement for review of an allegedly dangerous condition by both management and union representatives. Consol even refused to let Pasula use a telephone on the premises to telephone the federal inspector.
Consol does not contend that Pasula’s action in turning off the continuous miner at the time when he did so was either unjustified or was the basis of the discharge. Instead, the Consol official who fired Pasula stated that he did so because “the safety committeeman and Consol management personnel had resolved the matter about which Pasula had complained, and that, despite the contractual provision that required Pasula to return to work once it was so resolved, Pasula refused to do so.” Appendix at 58a. He also stated that “in addition to refusing to work, Pasula also ‘refused to let anybody else work, too’, and that this also was a factor in his decision to fire Pasula.” Id. (emphasis added). Thus, it is beyond cavil that Pasula’s action in stopping the machine, i. e. turning it off, was not the basis of his discharge.
I agree with the Commission that Pasula had reasonable grounds to believe he was exposed to unhealthful and excessive noise levels. The operator of the machine immediately before Pasula found the machine to be so noisy that he followed the unusual procedure of turning the machine off rather than idle it to reduce the noise. Pasula tried to get a noise reading, but Consol refused. The committee evaluated the noise in Pasula’s absence under unrepresentative conditions, since they concluded the machine was not too loud to operate without hearing the machine running at the face with all motors running. Appendix at 30a. In fact, a subsequent inspection by the federal inspector, after the machine had been idling which reduced the noise of the new gears, found that with the pump motor running alone and with the machine not cutting coal, the noise level was 93 decibels; with the pump motor running, the conveyor running, and the machine mining coal, the level was 103 decibels. Appendix at 31a, 32a. Pasula had not been provided with hearing protectors, and under that condition, the noise standard applicable does not permit miners to be exposed to 90 decibels for more than an eight hour period or to 102 decibels for more than one and one-half hour. 30 C.F.R. § 70.510 (1979). Finally, Pasula requested that he be given alternate work which was refused. Appendix at 31a.
*1225The majority opinion is replete with internal inconsistencies. In the same paragraph where the majority states that the record “supports the conclusion that Pasula was discharged because he kept Fischer from working on the machine and thereby stopped the entire shift”, the majority also states that Pasula “was discharged for a combination of reasons, including (1) his refusal to continue operating the continuous miner machine after an independent determination had been made under the Wage Agreement that there was no health or safety hazard, and (2) his refusal to let anyone else operate the machine.” Majority opinion at 1220 (first emphasis added).
The majority, however, fails to consider whether Pasula’s action in refusing “to continue operating” the machine [actually resuming operation] fell within an employee’s statutory right to refuse to work. Thus although at one point in its opinion the majority appears to accept the view of the Commission that this may be considered as a case involving mixed motivation, the majority focuses only on the alleged “proper” motive and never on the improper motive for discharge.
What is there then in the record upon which the majority relies for its view that Pasula refused to let anyone else operate the machine? The record is bare of any evidence that Pasula told Fischer, the only other person who could operate the machine, not to do so. The majority itself refers to the record where Fischer testified that Pasula “didn’t threaten me.” Although the majority refers to a “directive” by Pasula “that no one was going to run the machine,” there is no support for that on the record. The only actions or statements of Pasula referred to by the majority are that Pasula “slapped the machine, cursed, and declared [either] ‘nobody’s going to operate it’”, or “the machine [is] down.” Majority opinion at 1214 & n.3.
The statement “nobody’s going to operate it” is at best equivocal. There is ample evidence in the record to support viewing this as an accurate factual statement, since the ALJ found that “it is a general longstanding mine custom that when one miner will not operate a piece of equipment, another one will not.” Appendix at 30a. It is conceivable that, with certain intonation, the statement might be understood as a threat, but the person to whom it would have been intended, Fischer, did not understand it as such, and, significantly, there was no such finding made by the fact finder. The majority, without any justification which I can find on the record, has simply substituted itself as the fact finder.
It is particularly unfortunate that the majority has chosen this case to do so. It appears that this was the first decision of the Commission under the 1977 Mine Act to consider whether a miner may refuse to work in conditions that the miner believes are unsafe or unhealthful. Thus it represented a significant milestone in the Commission’s interpretation of the statute. The majority’s interpretation eviscerates the very right which it declares. Furthermore, the factual context in which the case arose cannot be ignored. The day before the incident in question, Pasula had found that the methane monitor on the continuous miner was inoperative and refused to operate it until the monitor was repaired. Operation for the period of time requested by the foreman would have been illegal, but instead of repairing the monitor Consol sent Pasula and his crew home. The ALJ found that the crew was entitled to be paid for that entire shift, stating, “[t]he fact that management chose not to [repair the monitor] is a further factor indicating that they were punishing Mr. Pasula and his crew for his refusal to operate the continuous miner illegally for an 8-hour period.” Appendix at 34a. That portion of the ALJ order has apparently not been appealed. One may reasonably conclude from the record that Pasula was a vigorous advocate of mine safety. The ALJ and the Commission both concluded he was discharged by the employer for engaging in protected activity. The decision of this court overturning that factual finding will send vibrations to coal operators which may well thwart the congressional intent to pre*1226vent unsafe and unhealthful mine conditions and to involve miners actively in the enforcement of the Act.
Although I do not support the majority’s reversal of the Commission’s order neither could I vote to affirm on the present record. In determining that Pasula had a right to refuse work under the circumstances of this case, the Commission declined to decide the level of seriousness of the safety or health problem which justifies an employee’s refusal to work. Instead the Commission held only that Pasula’s concern was directed to “a hazard that we consider sufficiently severe whether or not the right to refuse work is limited to hazards of some severity.” Appendix at 63a.
I believe that before the Commission can rely on an employee’s right to walk off to sustain a reinstatement order, it must first articulate some standard as to the severity of the hazard which triggers that right. While the Commission may be entitled to reject the standard suggested by Consol that the only hazard justifying a walk off is one posing an “abnormal imminent danger,” Appendix at 64a, it cannot avoid enunciating some standard so that both mine operators and employees may be guided accordingly. Furthermore, unless the Commission informs the courts as to the standard which it is utilizing, we cannot effectively perform our 1 function of determining whether there is substantial evidence in the record to support the Commission’s finding of the right to walk off in a particular situation. Since the Commission is the agency with the primary responsibility for interpreting and enforcing the 1977 Mine Act, I believe it should have the opportunity to articulate and explicate the appropriate standard in the first instance. For that reason, I would vote for a remand to the Commission.