dissenting:
I dissent on two counts: (1) in my judgment the majority has misconstrued section 110(b)(1) of the Act; and (2) assuming that the majority rightly construes the Act, it is wrong in overturning the findings of the Board on the facts.
I.
The petitioner Phillips was a shuttle car operator at a coal mine, his duty being to transport coal in his shuttle car from a mechanized loader at the face of the mine to a conveyor belt. The loader was equipped with water sprays to wet down the coal and reduce dust. While on duty Phillips refused to continue his work because in his opinion the water sprays on the loader were not working properly. The foreman disagreed with the petitioner’s opinion and directed him to resume work. When Phillips refused to obey the foreman discharged him.
Pursuant to the contract between the petitioner’s Union, the United Mine Workers, and the company, the matter of the petitioner’s discharge was submitted to binding arbitration. The grievance submitted by the Union on behalf of the petitioner alleged that he had been wrongfully discharged. After hearing testimony from both company and Union witnesses the umpire rendered his final and binding decision. He held, in pertinent part:
Under the Management of Mines clause of the contract the management of the mine, the direction of the working force, is vested exclusively in the operator. The only justifiable reason • a miner would have to refuse to obey a direct order to continue to perform his normal duties, is that such an order would put him in danger of immediate personal injury of danger to his life. Such danger did not exist in this case.
The grievant in this case was not working continuously near the face of the coal where he complained of excessive dust. The only time he was there was when he was waiting to, have his buggy loaded or his buggy was actually being loaded. The men who were working on the equipment at the face of the coal were there continuously during their shift. They continued on with their work and did not walk off the job. There is no showing in this case that the grievant was in any immediate danger of great physical harm or danger to his life by continuing to carry out his duties as the other employees of this section continued to do.
It has in all cases known to this umpire been held that failure to carry *784out an order to perform duties assigned to a miner is a violation of the Management of Mines provision of the contract. If each miner can decide under what conditions he would work then the Management of Mine clause of the contract would have no meaning and management would have no control of the operation of the mines and the result would be chaos.
* * ■* * * *
In this case the grievant admits that he refused to work and obey a direct order of management to perform his duties and there is no showing he was in immediate danger of serious injury or loss of life. As unpleasant as it is the umpire must find that the management had the right under such circumstances to discharge the employee.
Phillips then complained to the National Labor Relations Board that his discharge was discriminatory. On December 17, 1971 the Regional Director refused to issue a complaint against the company. The Regional Director wrote:
The investigation has disclosed that there were no employees, other than Franklin Phillips, who had complained to their supervisor about the dust conditions in the mine on the date in question. Furthermore, the then current collective bargaining agreement contained an implied no-strike clause provision in the clause which provided for arbitration disputes. Therefore, under these circumstances it was deemed appropriate that Phillips was obligated to arbitrate his grievance and could not legally go on strike, unless there were abnormal working conditions in the mine on the date in question. Moreover, it has been concluded that the instant factual situation does not satisfy the requirements of “abnormal working conditions” as defined by the Board in Red Wing Carriers, Inc., 130 NLRB 1208.
Phillips next instituted the proceeding which is now before us under section 110(b)(2) of the Federal Coal Mine Health and Safety Act of 1969. (30 U. S.C. § 820(b)(2).) Seeking reinstatement, back pay and other damages he contended that his discharge was in violation of section 110(b)(1) of the Act which provides:
(b)(1) No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger, (B) has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or (C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.
After a hearing the Trial Examiner (now called Administrative Law Judge) concluded that the company had violated section 110(b)(1) “by discharging the Applicant . . . because he had notified his Mine Safety Committee of alleged safety violations and dangers in the No. 1 Section of Respondent’s mine.” The examiner ordered the company to reinstate Phillips, with back pay and the costs and expenses of the proceeding, including attorneys’ fees.
The Board of Mine Operations Appeals reversed the Hearing Examiner, holding that there was no substantial evidence in the record to justify the Examiner’s conclusion. On the contrary, the Board found the preponderance of the evidence established that the reason for the discharge was
the refusal of Phillips to obey the direct order of the foreman to haul coal. Although the foreman’s action may be looked upon as harsh or extreme, it is not within the province of the Judge or this Board to find that he had no authority to discharge any miner who disobeyed an order to work or otherwise acted in an unreasonable manner. We note that the umpire in the arbitration proceeding concluded, “As unpleasant as it is, the umpire must find that the management had the right under such circumstances to discharge *785the employee” . . . (Ex. 4(c), p. II). We are concerned here only with the question of whether the discharge was in violation of section 110(b) (1) (A) of the Act. The principal objective of that section is to preserve the integrity of the Act and not to provide a new forum for the litigation of management and labor grievances. [Emphasis supplied by the Board.]
II.
The majority concludes “that Phillips’ notification to the foreman of possible dangers is an essential preliminary stage in both the notification to the Secretary . . . and the institution of proceedings . . ., and consequently brings the protection of the Safety Act into play.” In other words the majority says that when Phillips complained to his foreman he “notified the Secretary or his authorized representative” of the alleged violation or danger, within the meaning of section 110(b) (1) of the Act. I cannot accept this construction of the statute.
In the first place it seems to me that the phrase “the Secretary or his authorized representative” on its face plainly does not mean a foreman or the mine employees serving on a safety committee. If Congress had intended the phrase to have such an inclusive meaning, so that any complaint by a miner concerning safety clothed him with the protection of section 110(b)(1), I think Congress would have said so. If the majority opinion were presented to a congressional committee considering amendments to the Act it might persuade the committee that section 110(b)(1) should be broadened to cover all safety complaints no matter to whom they are made; but this court is not a legislative committee.
My conclusion is reinforced when section 110(b)(1) is considered in the context of other sections of the Act. Thus the phrase “the Secretary or his authorized representative” appears elsewhere in the statute; it is not an isolated phrase used only in section 110(b)(1). Section 103(a), 30 U.S.C. § 813(a), requires that “Authorized representatives of the Secretary shall make frequent inspections and investigations in coal mines . . . .” Section 103(b)(1) gives the Secretary “or any authorized representative of the Secretary” a right of entry to any coal mine for the purpose of inspection or investigation. Section 103(e)’provides that in the event of an accident in a coal mine where rescue and recovery work is necessary “the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activity in such mine.” Section 103(f) empowers “an authorized representative of the Secretary” to issue safety orders in the event of any accident occurring in a coal mine. Section 103(g) provides: “Whenever a representative of the miners has reasonable grounds to believe that a violation of a mandatory health or safety standard exists, or an imminent danger exists, such representative shall have a right to obtain an immediate inspection by giving notice to the Secretary or his authorized representative of such violation or danger.” Section 103(h) directs that at the commencement of any inspection of a coal mine “by an authorized representative of the Secretary, the authorized representative of the miners at the mine at the time of such inspection shall be given an opportunity to accompany the authorized representative of the Secretary on such inspection.” Section 104, 30 U.S.C. § 814, deals in detail with the findings to be made and the actions to be taken by “an authorized representative of the Secretary”, with respect to dangers or violations of health or safety standards discovered upon an inspection of a coal mine.
From these numerous references to “authorized representative of the Secretary” in the statute it seems plain to me that when Congress used those words in section 110(b)(1) it meant a mine inspector or some other designated agent of the Secretary, and not some commit*786tee or other representative of the miners. I think the purpose of section 110(b)(1) is to protect the integrity of the agency’s investigative procedure by assuring that a miner who complained to the agency would not be penalized. To hold that the section applies to a miner who had never complained to the agency is I think to distort the statute.
My reading of the Act is confirmed by Senator Kennedy’s comments on the floor of the Senate at the time he offered the amendment which ultimately became section 110(b) (l)-(3). The Senator offered his amendment as an addition or amendment to section 301 (h) of the Senate bill. Section 301(h) of the Senate bill became section 103(g) of the statute as enacted. (See p. 785 supra.) The Kennedy amendment was added to the Senate bill as section 301(h)(2). The Senator said: “My proposed amendment would make it unlawful for any person to discharge or otherwise discriminate against a miner for bringing suspected violations of this act to the attention of authorities.” 115 Cong.Rec. 27948. (Emphasis added.) By thus referring to “authorities” and coupling his amendment to those sections of the bill which dealt with inspections by an authorized representative of the Secretary, the Senator made it clear that the authorities he had in mind were mine inspectors or other designated agents of the Secretary. See Legislative History of the Federal Coal Mine Health and Safety Act 540-41 (Comm.Print 1970).
In his remarks on the floor Senator Kennedy noted that his proposed amendment to section 301(h) “gives to miners the same protection against retaliation which we give employees under other Federal labor laws.” 115 Cong.Rec. 27948. Among the other Federal labor laws to which the Senator referred was the National Labor Relations Act. That act provides, 29 U.S.C. § 158(a) (4), that it shall be an unfair labor practice “to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter.” It has been held however that this section does not protect an employee who has not complained to the Board or one of its agents. Hoover Design Corp. v. NLRB, 402 F.2d 987 (6th Cir. 1968). See NLRB v. Scrivener, 405 U.S. 117, 125 n. 6, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972).
I am puzzled by the majority’s suggestion that Phillips came within the protection of section 110(b)(1) because he was “unfamiliar with the elaborate appeal and review procedure” established by the collective bargaining agreement. Neither do I understand the suggestion that the mine management was under a duty to explain matters to Phillips. I think the proper interpretation of the statute should not depend upon whether Phillips understood the collective bargaining grievance procedure. Moreover, I believe it was the function of the Union, which represented Phillips, and not the company, to explain the procedure to him if he was unable to understand it. In any event the record does not establish that Phillips was unfamiliar with the procedure; on the contrary he displayed considerable expertise in that field. He personally took his complaints to the Mine Safety Committee and he testified that he knew about this grievance procedure. (See addendum to Gov.Br. pp. la-3a.)
III.
The majority concludes that the “bare words of the Safety Act would be completely ineffective” unless “implemented by some procedure at the mine”. I think this argument fails when examined in the light of the true scope of section 110(b)(1) and the additional remedies available to a miner who is concerned about his safety in the mine.
A miner who is concerned about conditions in the mine which he considers dangerous is protected by both his collective bargaining agreement and by section 502 of the Labor Management Relations Act, 29 U.S.C. § 143. In this case Phillips asserted his rights under the collective bargaining agreement and lost, because the umpire found that his *787discharge did not violate the agreement. He then invoked his remedy under section 502 of the Labor Management Relations Act, and lost again, because the Regional Director of the NLRB held that conditions in the mine were not “abnormally dangerous” within the meaning of the statute. See Gateway Coal Co. v. UMW, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). Thus, before invoking the Mine Safety Act Phillips could and he did seek redress in two other forums, one provided by his contract, the other by statute. He was unsuccessful, not because procedures for redress were unavailable or defective, but because the evidence failed to support his claim.
Although the majority, citing a finding by the Examiner, suggests that Phillips’ discharge did violate the collective bargaining agreement (Op. p. 780) this matter is not relevant to the issue before us. We are not reviewing the decision of the umpire. The only issue before us is whether Phillips’ complaint to a fellow employee brought him within the protection of section 110(b)(1) of the Mine Safety Act; the question is not whether his discharge violated the collective bargaining agreement. Section 110(b)(1) forbids an employer to discharge a miner because he has notified the Secretary or his authorized representative of any alleged violation or danger; it is not directed at discharges for refusal to work or discharges in violation of a collective bargaining agreement.
The majority commends the Kencar Mine management and the Union for adopting “a procedure to bridge the gap between the miner in the pit and the Federal Bureau of Mines, the Secretary’s representative.” The majority then reasons that Phillips was protected against discharge because his complaint to his foreman was “the first prescribed step under the Kencar procedure to invoke the Mine Safety Act”. I do not understand how an “authorized representative” of the Secretary can be created, and the scope of the statute expanded, by an agreement between the company and the Union. Assuming that the hiatus perceived by the majority exists —an assumption I think unwarranted, given section 502 of the Labor Management Relations Act — the gap can be closed only by act of Congress. The statute cannot be amended by a collective bargaining agreement.
IV.
The decision of the Board of Mine Operations Appeals rested on two independent grounds. First, the Board found there was no substantial evidence to support the finding of the Trial Examiner that Phillips was discharged because of his safety complaints and safety activities. After reviewing the evidence the Board found, contrary to the Examiner’s conclusion, that the reason for the discharge was the refusal of Phillips to obey the direct order of his foreman to haul coal. Second, the Board found that even if the discharge were motivated by Phillips’ safety complaints to the foreman and the Mine Safety Committee, as a matter of law this would not bring him within the scope of section 110(b)(1).
Holding that the Board’s second independent ground was wrong, the majority is nevertheless bound by the Act to affirm the decision of the Board if the Board’s conclusions of fact are supported by substantial evidence. Section 106(b) of the Act, 30 U.S.C. § 816(b), relating to judicial review of any order or decision issued by the Secretary or the Panel, provides: “The findings of the Secretary or the Panel, if supported by substantial evidence on the record considered as a whole, shall be conclusive.”
Instead of examining the Board’s findings to determine whether they are supported by substantial evidence, the majority selectively credits testimony, and proceeds to “reject the Board’s suggestion that Phillips was discharged only for a simple refusal to work.” The majority then finds as a fact “that the effective cause of Phillips’ discharge was his complaint about hazardous working conditions in the mine”; and *788the majority orders Phillips to be reinstated with back pay, costs, expenses and attorneys’ fees.
In my judgment the majority opinion violates the standard of judicial review commanded by section 106(b). There was conflicting testimony in the record, but considering all the evidence introduced at the hearing, I cannot say there was no substantial evidence to support the Board’s conclusion. Although my colleagues have drawn a different conclusion from the same facts this does not authorize them to upset the Board’s findings and substitute their own. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
V.
The impact of this decision on mine operations will be substantial. Even more important and significant, in my opinion, is the determination of my colleagues to override a clear and unambiguous statutory provision and substitute the broader protection which they believe miners ought to have as a matter of policy. This is an intrusion into the legislative domain in which I cannot join.
I respectfully dissent.