author: NICHOLS, Judge:

text:
    UNITED STATES of America v. FINANCE COMMITTEE TO REELECT THE PRESIDENT, Appellant.
    No. 73-1918.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 24, 1974.
    Decided Dec. 2, 1974.

      Leon T. Knauer and John M. Facciola, Washington, D. C., with whom Kenneth Wells Parkinson and Nicholas S. McConnell, Washington, D. C., were on the brief, for appellant.
    Craig C. Donsanto, Atty., Fraud Section, Crim. Div., Dept, of Justice, with whom Henry E. Petersen, Asst. Atty. Gen., Harold Titus, U. S. Atty. at the time the brief was filed and Richard S. Stolker, Atty., Crim. Div., Dept, of Justice, were on the brief, for appellee. Walter T. Barnes, Atty., Dept, of Justice, also entered an appearance for appellee.
    Before LEVENTHAL and ROBINSON, Circuit Judges, and NICHOLS, Judge, United States Court of Claims.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

   NICHOLS, Judge:

This Appeal concerns the conviction of Appellant Committee on a three-count Information under the Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-454 (Supp. II, 1972) (which repealed and replaced, effective April 7, 1972, the old Corrupt Practices Act of February 28, 1925, Ch. 368, Title 3, §§ 301-319, 43 Stat. 1070-1074; 2 U.S.C. §§ 241-256 (1970).)

Count One charged that the Committee Chairman, Mr. Maurice Stans, failed to report within 5 days to the Committee Treasurer, Mr. Hugh Sloan, a detailed account (including donor’s name, address, occupation, and business address) of a $200,000 cash contribution received by Mr. Stans on April 10, 1972, in Washington, D.C., from agents of Mr. Robert Vesco.

Count Two charged that Mr. Sloan, failed to keep a record of the information specified in Count One concerning the contribution of $200,000.

Count Three charged the Committee with failing to report the contribution described in Counts One and Two, on or after June 10, 1972, in reports filed with the GAO (General Accounting Office).

No individual was accused in any count. Certain facts were stipulated and others were put before the court with Appellant’s motion for a verdict of not guilty, which the court denied. The Appellant Committee waived jury trial and was convicted on all three counts and sentenced to a fine of $1,000 on each of the three counts. For the reasons given below, we affirm the conviction on all three counts.

The statute, cited supra, on and since April 7, 1972, has required that “Every person who receives a contribution in excess of $10 for a political committee shall * * * within five days after receipt of such contribution, render to the treasurer a detailed account thereof, including the amount, the name and address (occupation and principal place of business, if any) of the person making such contribution, and the date on which [it was] received * * *”, 2 U.S.C. § 432(b). Mr. Stans, having been promised a contribution of over $200,000 by Mr. Vesco, orally and not in writing, before April 7, received $200,000 from that source after April 7, on April 10. He did not inform the Treasurer Mr. Sloan, of the identity of the donor or the date of receipt. The statute further provides, in § 441, that “[a]ny person who violates any provision of this title shall be fined not more than $1,000 or imprisoned for not more than one year, or both.” These are the facts proved as to Count One.

The statute further requires the Treasurer “to keep a detailed and exact account” of all contributions over $10, and “the full name and mailing address” of every donor of such a contribution. 2 U.S.C. § 432(c). Mr. Sloan did not do this and this is the gravamen of Count Two. The statute further requires a report by the treasurer of a “political committee” the tenth day of each June, with the “appropriate supervisory office” in this case the GAO. The report had to show “the full name and mailing address” of anyone making a “contribution” in excess of $100, § 434(a) and (b)(2). The Treasurer did not do this respecting the Vesco contribution, and this is the gravamen of Count Three.

The statute also defines a “contribution” as “a gift, subscription, loan, advance, or deposit of money * * * ” (§ 431(e)(1)), and “a contract, promise, or agreement, whether or not legally enforceable, to make a contribution * * * ” (§ 431(e)(2)).

The Comptroller General being designated as the “supervisory officer” in the case of contributions to influence Presidential contests (§ 431(g)), the GAO was to be the recipient of the above reports and by regulation prescribe forms of reporting which will be dealt with hereinafter.

The Appellant raises five issues on appeal, four attacking the proceedings below and the fifth the constitutionality of the statute.

I

In challenging the sufficiency of the evidence, Appellant says,, as to Counts One and Two, that the stipulation on which the case was submitted contains no statements with respect to the alleged failure of defendant’s Chairman [Mr. Stans] to render a detailed account of the transaction to the Treasurer [Mr. Sloan] or the alleged failure of the Treasurer to maintain a complete record thereof.

There is no signed text of a stipulation in the appellate record. In the Government brief opposing the motion for a verdict of not guilty is a statement of facts ending with the words: “The United States hereby agrees to the stipulation of these facts as stated above.” This statement omits what Appellant says it omits. Appellant’s counsel made similar statements in oral argument before Judge Hart that might be called a stipulation. However, with Appellant’s memorandum in support of the motion, it submitted a Report by the Office of Federal Elections, General Accounting Office, which supplies the missing facts and a great deal more. Mr. Stans is quoted as saying no record was made of the Vesco transaction. Mr. Sloan, through his attorney, advised the GAO that the identity of the donor was not disclosed to him and he dealt with the funds as pre-April 7 contributions.

We are at a loss to explain why Appellant attached this report to its motion if it was not to inform the trial court what the conceded facts were, and direct that court’s attention to the legal issues which these conceded facts would raise, in Appellant’s opinion. Appellant said nothing to reserve any question as to whether the GAO report was factually correct. The trial judge found the facts as revealed in the GAO report, and in moving for rehearing, Appellant made no complaint of his having done so without support of evidence. Appellant never contended until the case came before us that proof of necessary factual elements was missing. In the circumstances, we conclude that the trial court treated the GAO report as evidence supplementing the stipulation. This was not a case where the Government had put in all its proof and rested, so that it could be subject to a motion that the Government’s proof was not sufficient to support a conviction. We see no basis for reversal.

Neither Mr. Sloan nor anyone else ever properly entered the $200,000 on the Committee Treasurer’s books.

On the Third Count, Mr. Stans himself swore that the $200,000 was reported as CASH ON HAND ON APRIL 7, 1972, in the June 10, 1972 report, even though physical delivery did not occur until April 10, 1972.

II

Appellant’s second contention is that there was no proof of its criminal intent and that proof was required.

Appellant admitted that its entire Committee organization was dissolved and re-established on paper, so that the pre-April 7 Committee would never legally exist under the new act (and be subject to reporting and discovery procedures). Committee personnel were encouraging all donations to be made during the pre-April 7 secrecy period. They were well aware that the donor’s right to secrecy ended April 7. Committee attorneys spent many, many hours reviewing each detail of the old and new laws. Delivery of the Vesco $200,000 cash was made in such a manner of secrecy that no records would exist. Only Mr. Vesco, his two agents, and Mr. Stans knew the details of the delivery. Mr. Stans admitted that he treated the $200,000 as a pre-April 7 contribution and he deceptively reported it as “CASH ON HAND” on April 7, even though physically received on April 10.

The former 1925 Corrupt Practices Act, 2 U.S.C. § 252, was the predecessor and starting point for the Act here to be construed. It had separate sections prescribing punishments for “willful” violations and for violations without that adjective. On conviction in the former category, punishments could be imposed more severe than for those in the latter, and the maximum for the latter, one year’s imprisonment or $10,000 fine, happen to be the same as those under the present Act. Since the present Act § 441, says nothing about “willful” violations, it is reasonable to suppose, given this background, that the Congress intended that the elements of a non-willful offense, whatever it might be, were all that was necessary for a conviction.

This, however, does not get us very far.' In Burroughs & Cannon v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934), the Supreme Court held that certain counts in an indictment, under the non-willful section of the 1925 Act, were invalid because they did not allege the defendants “knowingly” violated the law. Thus the mental state of the accused comes back into the case and the present § 441, given this background, does not assess absolute liability regardless of scienter. Still the Supreme Court cannot be said to have overridden the view expressed in the case below in this court, 62 U.S.App.D.C. 163, 65 F.2d 796 (1933), that the non-willful section would punish a failure to report as required because of carelessness, inadvertence, or neglect, or because of ignorance of the law. There may be exceptions, but the majority of offenders in those categories would have knowledge of facts putting them on notice that they had a legal duty in the premises, and thus could properly be indicted for a “knowing” violation. To construe the statute otherwise would leave one hard put to determine what difference the Congress intended to exist between willful and non-willful violations. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), Mr. Justice Jackson reads the requirement of scienter back into a wide variety of statutory criminal enactments that lack any such express provision, but he distinguishes as a matter of statutory construction offenses “ * * * in the nature of neglect where the law requires care, or inaction where it imposes a duty.” P. 255, 72 S.Ct. p. 246.

The Appellant’s officers in this case were well aware that the new statute existed. They or their counsel had spent hours reviewing it. They had urged those who desired non-publicity for large gifts to contribute before April 7. The secrecy Mr. Stans maintained as to the Vesco gift, concealing its date and source even from the Treasurer, Mr. Sloan, speaks for itself. So does the false reporting of the gift as “CASH ON HAND” on April 7. Secrecy or openness in the involved transaction are clear indicators of guilty intent or its absence. We are not concerned with the defense of ignorance Mr. Sloan might be able to interpose if he were personally prosecuted. Mr. Stans’ knowledge is imputable to the Appellant.

Appellant may have hoped— doubtless did — that the reporting requirement would ultimately be held not to cover the Vesco contribution. We deal below with the validity of that expectation. Appellant’s acts also suggest a hope that the full circumstances of the gift would never be known, precluding any need for a legal ruling. If, as a matter of statutory construction, we should read in a scienter requirement to the extent necessary to shield a case such as this, the statute could be nullified by those affected at their pleasure. Appellant, viewed in the kindest light, was guilty of negligence of the kind suggested in the Burroughs case, supra. It knew the facts which it had a duty to report, and it knew of the law under which the duty arose. We need not attempt to marshal the decisions to decide just where the line should be drawn, since the case demands no fine discrimination to select a side of the line to place it on. The Appellant was guilty of the violations by its own stipulations and other evidence submitted by its counsel. In the circumstances, error, if error there was, in the trial judge’s application of the scienter requirement, was harmless and not a proper basis for reversal.

Appellant urged that the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, Pub.L. 93-443, and its legislative history reflect a Congressional understanding that under the 1971 Act scienter was a necessary element of any crime punishable by § 441. The parties submitted exhaustive supplemental briefs on this point. We find nothing in the material in conflict with our conclusions herein.

Ill

Appellant also argues that its good faith reliance on counsel’s advice is a defense to criminal conviction. But as Appellant itself admits at p. 9 of its motion, advice of counsel is not an absolute defense. Shale v. United States, 388 F.2d 616, 618 (5th Cir. 1968), cert. denied, 393 U.S. 984, 89 S.Ct. 456, 21 L.Ed.2d 445; United States v. Painter, 314 F.2d 939, 943 (4th Cir. 1963), cert. denied, 374 U.S. 831, 83 S.Ct. 1873, 10 L.Ed.2d 1054.

Further Appellant does not meet the two conditions for this defense that it sets out at p. 9 of its motion for acquittal: (a) full disclosure to counsel, and (b) unbiased and competent counsel. As noted above, other than Mr. Stans, Mr. Vesco, and Mr. Vesco’s two agents, no one else knew of the full details of the transaction for which Appellant has been charged. The advice Mr. Stans received early in 1972 was not concerned with the exact situation that later arose. Mr. Stans later mistakenly regarded this case as analogous to the facts of another donation that Justice afterwards regarded as entirely different. Advice after the act is not relevant. The prosecution did not deny that Mr. Vesco orally promised the donation before April 7, and had the money ready. The legal sufficiency of this as a defense must now be considered.

IV

Appellant’s next challenge to the conviction is that the court should have adopted its position that the 1925 Corrupt Practices Act governed the transaction and that under the 1925 Act the contribution was completed at the time of the promise' — -and not at the time of the delivery, and thus was not reportable under the 1971 Act.

Appellant fails to explain how the 1925 Act, which was repealed on April 7, the effective date of the 1971 Act, would be legally operative on April 10, 1972, the date of the delivery. Conceding ar-guendo Appellant’s position that the 1925 Act did require, if at all, the contribution to be treated as having occurred when promised, Appellant still loses the argument because this rule of law was not in effect when the April 10 events occurred.

Examination of the 1971 Act discloses that the same contribution could be reportable as much as THREE times: (1) when promised, under 2 U.S.C. § 431(e)(2) and § 434(b)(12), (2) when physically delivered, if over $100, under 2 U.S.C. § 431(e)(1) and § 434(b)(2), and (3) when transferred from one recipient Committee to another Committee under 2 U.S.C. § 431(e)(3). This was the applicable law on April 10, 1972. This was the law Appellant is charged with violating — not the 1925 Corrupt Practices Act.

Moreover, the Congress expressly provided in § 436(d) that the regulations of the “supervisory officer”, the GAO, should require that contributions and promises to contribute should be reported in separate schedules. In determining aggregate amounts of contributions “amounts reported as provided in such regulations shall not be considered until actual payment is made”. Presumably a payment and a promise to pay should not be added together to make a figure exceeding $100 and thus triggering a duty to report the donor’s name.

The GAO on March 24, 1972, 37 Fed. Reg. 6165 and ff., published regulations under the new law, with reporting forms. § 16.4 of the regulation, 37 Fed. Reg. at 6166, tells how a Committee is to report debts, obligations, and promises prior to their realization as cash. Basically, by § 16.4(a) they are to be reported separately from actual contributions until actually paid, liquidated, or can-celled. The GAO prescribed use of a Schedule E for these, as against Schedule A for cash contributions. Under this scheme, a promise would reappear continuously on Schedule E’s filed quarterly until payment, and then it would show on Schedule A. However, § 16.4(a) by its terms only applies to promises after April 7. By § 16.4(b) promises under $100 or not in writing need not be reported before payment. By § 16.4(c), “such * * * promises” in existence prior to April 7 “are not required to be itemized as to date incurred or name of creditor or debtor, but any total outstanding amount may be shown.” Clearly § 16.4(c) does not say anything about how a cash payment is to be reported. It deals with the promise while it remains a promise only. The reporting of cash contributions over $100 is prescribed elsewhere in the regulation § 14.2(b)(2). Also it should be noted that in § 14.-2(b)(12), debts and obligations are again dealt with separately. Candidates, as distinguished from committees, are excused from reporting such debts and obligations.

Thus the statutory scheme, as interpreted by the GAO, was separate reporting for oral or written promises of payment, and for subsequent payment in cash, on separate schedules. The parties herein, have asserted an ambiguity in § 16.4(c) but, if it exists, it is in respect to reporting an oral promise to pay over $100, outstanding on April 7, and not fulfilled on the required reporting date. That is not this; case. Mr. Vesco had paid well before the first reporting date. No report on Schedule E was thus ever required, but instead Schedule A should have reflected Mr. Vesco’s name and address and the amount of his gift. The GAO interpretation stated in the above regulations is thus in no conflict with its position in this case, that an obligation to report the cash payment did exist. We so hold.

V

Appellant also urges here, as it did not do below, that the Federal Election Campaign Act of 1971 infringes the First Amendment by chilling the freedom of association of would-be contributors, who can contribute over $100 per candidate per year only at the cost of publicity that might be undesired.

No foundation in record or findings having been laid below, Appellant would have us hold the whole Title III structure unconstitutional, in gross and at large, without any factual showing that the legislation chills anyone, as actually applied to Appellant or any other group or person. In Pichler v. Jennings, 347 F.Supp. 1061 (S.D.N.Y.1972), District Judge Pollack held that a similarly unsupported challenge to Title III by the Conservative Party of New York did not raise a serious enough Constitutional issue to justify convening a 3-judge court.

Appellant says the allowance of secrecy only to gifts of $100 and under would chill many campaign gifts and present no conceivable menace to the integrity of the electoral process, presumably those over $100 and under some other unknown figure. In the absence of data, we are in no position to make a merely speculative determination as to the degree of chill to be expected from publicity on donations of any particular amount, nor as to how large a gift is necessary to undermine the integrity of a candidate. The $100 figure is, it would appear, high enough for a political campaign to enjoy substantial financial support from secret gifts alone. Appellee says that 96% of all political contributors contribute $100 or less; that in 1972 Nixon got 900,000 and McGovern 700,000 such gifts.

The 1971 Act adds no new “chill” not already in the Corrupt Practices Act of 1925, which required political committees to report contributions of $100 or more. Indeed, to the extent that contributors naturally tend to “round out” to a $100 figure, the new law lessens whatever “chill” may be speculated to have previously existed. In the landmark cases wherein claims of unconstitutional chill have met judicial acceptance, the impact of the challenged action has plainly appeared on the record. NAACP v. Alabama, 357 U.S. 449, 462-463, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Dombrowski v. Pfister, 380 U.S. 479, 487-488, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). See also Laird v. Tatum, 408 U.S. 1, 13-14 n. 7, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). No such conclusion emerges here.

In California Bankers Ass’n v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974), the Supreme Court dealt with statutory requirements for bank record keeping and reporting. The ACLU challenged the former under the First Amendment, saying they might be used to obtain the identities of its members and contributors. The Court answer was: “in the absence of a concrete fact situation in which competing associational and governmental interests can be weighed, [the Court] is simply not in a position to determine whether an effort to compel disclosure of such records would or would not be barred by cases such as NAACP v. Alabama, [357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)].” With respect to the reporting requirements, the Court observed that there was no allegation that the ACLU regularly engaged in the types of financial transactions that were subject to reporting. Therefore no concrete controversy was presented for adjudication. (416 U.S. at 56, 94 S.Ct. at 1515).

In light of this authority, the barren record in this case is not an appropriate medium for a challenge to the constitutionality of a statute whose general validity was established forty years ago in Burroughs & Cannon, supra, a decision cited with approval, as a pertinent comparison, in United States v. Harriss, 347 U.S. 612, 625, 74 S.Ct. 808, 98 L.Ed. 989 (1954). United Federation of Postal Clerks v. Blount, 325 F.Supp. 879, 886 (3-judge court, D.D.C.), aff’d, 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971), Judge J. Skelly Wright of this court, concurring, takes the view that an inferior court should leave to the Supreme Court the initiative in declaring a statute — in that case, the Federal employees anti-strike law — unconstitutional under the First Amendment, despite his own grave doubts, when it has been accepted and acted on as valid for a long time and legal attacks have failed, even in the absence of an on-point Supreme Court decision. He says: “If the right of public employees to strike — with all its political and social ramifications — is to be recognized and protected by the judiciary, it should be done by the Supreme Court which has the power to reject established jurisprudence and the authority to enforce a sweeping rule.”

So here with the right of large donors to secrecy. The 1925 legislation was sustained in Burroughs & Cannon. The attack was not on First Amendment grounds, but the compelling interest underlying the requirement of disclosure of substantial contributions to political committees was referred to in First Amendment context in Harriss.

The Harriss case upholds the validity of the Federal Regulation of Lobbying Act, 2 U.S.C. §§ 261-270, which requires publicity for money contributions for lobbying purposes. Lobbying is of course a pejorative term, but another name for it is petitioning for the redress of grievances. It is under the express protection of the First Amendment. In upholding the legislation as constitutional, Chief Justice Warren said, 347 U.S. at p. 625, 74 S.Ct. at p. 816:

Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much. It acted in the same spirit and for a similar purpose in passing the Federal Corrupt Practices Act — to maintain the integrity of a basic governmental process. See Burroughs and Cannon v. United States, 290 U.S. 534, 545, [54 S.Ct. 287, 290, 78 L.Ed. 484.]

The dissents in Harriss would demand more narrowly drawn and precisely stated legislation, to avoid unconstitutional chilling of petitioning' rights. They do not assert the topic is immune from statutory coverage. Chief Justice Warren addresses himself to the chilling contention, although without use of that particular word, 347 U.S. at p. 626, 74 S.Ct. at p. 816:

It is suggested, however, that the Lobbying Act, with respect to persons other than those defined in § 307, may as a practical matter act as a deterrent to their exercise of First Amendment rights. Hypothetical borderline situations are conjured up in which such persons choose to remain silent because of fear of possible prosecution for failure to comply with the Act. * * * The hazard of such restraint is too remote to require striking down a statute which on its face is otherwise plainly within the area of congressional power and is designed to safeguard a vital national interest.

In Attorney General v. Irish Northern Aid Committee, 346 F.Supp. 1384 (S.D.N.Y.), aff’d, 465 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1080, 93 S.Ct. 679, 34 L.Ed.2d 669 (1972), the court was faced with a First Amendment argument very similar to the one at bar, directed against inspection of books and records which would disclose names and addresses of contributors. The Government’s purpose was to enforce the Foreign Agent’s Registration Act, 22 U.S.C. § 611. The court held that in view of the “strong Governmental interest supporting the disclosure sought” (p. 1390), cases such as NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), “and its progeny” were not applicable. Too much dependence cannot be put on the case here in view of the distinction existing in many minds between the application of the Bill of Rights to agents of foreign principals, and other persons; however, it supports the decision of the court below so far as one may regard the public interest there involved as comparably compelling. There is a strong dissent to the denial of certiorari, partly on First Amendment grounds, by Mr. Justice Marshall and two other justices.

Recent cases dealing with other parts of the Federal Election Campaign Act of 1971 are not in point. American Civil Liberties Union v. Jennings, 366 F.Supp. 1041 (3-judge court, D.D.C. (1973)), addresses primarily Title I of the Act, with which we are not here concerned, and as to Title III, it declares that Title, properly construed, not to apply to the ACLU. Accord: United States v. National Committee For Impeachment, 469 F.2d 1135 (2d Cir. 1973).

We reject the attack on this statute on First Amendmént grounds on the present record — in the context of Bur roughs & Cannon and Harriss, and in the absence of a foundation in fact, as contrasted with speculation.

Affirmed.


source: Caselaw Access Project

author:
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
      MacKINNON, Circuit Judge,

license: Public Domain

text:
    Glen MUNSEY et al., Petitioners, v. Rogers C. B. MORTON, Secretary of the Interior, and the Board of Mine Operations Appeals of the Department of Interior, Respondents, Bituminous Coal Operators Association, Amicus Curiae.
    No. 72-2095.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 21, 1973.
    Decided Dec. 17, 1974.

      Steven B. Jacobson, Washington, D. C., for petitioners. Charles L. Widman, Washington, D. C., was on the brief for petitioners. Edward L. Carey, Willard P. Owens and J. Davitt McAteer, Washington, D. C., also entered appearances for petitioners.
    Judith S. Feigin, Atty., Dept, of Justice, with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and Walter H. Fleischer, Atty., Dept, of Justice, were on the brief for respondent. Thomas G. Wilson, Atty., Dept, of Justice, also entered an appearance for respondent.
    Guy Farmer,. Washington, D. C., filed a brief on behalf of Bituminous Coal Operators’ Assn, as. amicus curiae.
    Before WRIGHT, ROBINSON and MacKINNON, Circuit Judges.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Before us is a petition for review of a decision of the Board of Mine Operations Appeals of the Department of the Interi- or holding that a mine operator’s termination of the employment of three miners did not contravene the Federal Coal Mine Health and Safety Act of 1969. The specific complaint which petitioners advanced, and which the Board rejected, was that the operator, in terminating the employment, retaliated against them for reporting to federal authorities unsafe conditions in the mine, and thus discriminated against them in violation of Section 110(b)(1) of the Act. Finding the Board’s decision faulty on two counts, we remand the case to the Board for reconsideration of petitioners’ claim harmoniously with the principles set forth in this opinion.

I. BACKGROUND OF THE CASE

A. Factual Background

The petitioners are Glen Munsey, Arnold Scott and Earnest Scott. Two are experienced coal miners, and all are members of a local union of the United Mine Workers of America (UMWA). The involved employer is the Smitty Baker Coal Company, Inc., which operates a mine in St. Charles, Lee County, Virginia, under a collective bargaining agreement with UMWA. Munsey and Earnest Scott were employed by the company as jacksetters, and Arnold Scott as a designated helper though he too sometimes worked as a jacksetter. Their duties were performed conjunc-tively with the operations of one of the continuous mining machines utilized in the company’s mining process.

On March 30, 1970, the Act’s mandatory health and safety standards for underground coal mines went into effect. Thereafter, the Smitty Baker mine was often the concern of federal inspectors, and of petitioners as well. Munsey became a member of his union’s three-man safety committee, a post he held about two months, and both while a committeeman and afterwards he had occasion to speak to his supervisors about safety in the mine. Seemingly in collaboration with the Scotts, Munsey frequently contacted his union’s safety coordinator to complain of what he considered to be dangerous conditions.

On the morning of April 15, 1971, while petitioners performed their usual tasks as part of a team working one of two operating sections of the mine, a five-ton rock fell from the mine roof on top of the mining machine in use, causing the crew to retreat about 40 feet to a heavily timbered area. Clement Kempton, the crew foreman, and Fred Coeburn, foreman of the other section, inspected the roof and pronounced it safe, whereupon the crew went back to work.

Minutes later, the operator of the mining machine told the crew that he thought the roof was “dribbling” — emitting debris, an omen of a loose roof about to fall. Petitioners went back to the heavily timbered area while another inspection of the roof was made. Again it was concluded that the roof was safe, and part of the crew returned to work. Petitioners, protesting that the roof was unsafe, refused to do so unless precautions were taken. Foreman Coeburn told them that instead of their customary activities they could set timbers, and that petitioners also refused to do. Coeburn then sent them from the mine.

On the surface, petitioners discussed with Frank Cochran, the mine superintendent, the events transpiring in the mine. Cochran told them that they could reenter the mine to set timbers, but petitioners were unwilling to do so. Petitioners asked whether they could come back to work the next day, and to that Cochran demurred. Cochran told them that they could return to work that day but not on the next, believing that to do otherwise would be unfair to the men who had stayed on the job.

Petitioners then left the mine site and reported the incident, including their apparent discharge, to E. W. Gilbert, the union safety coordinator. On the afternoon of April 15, petitioners and Gilbert met with the manager and the superintendent of the mine, and Gilbert sought unsuccessfully to obtain petitioners’ reinstatement. Still later that afternoon, Gilbert reported the affair, including petitioners’ apparent discharge, to a representative of the Bureau of Mines. At another meeting on April 29, Gilbert again tried to persuade company officials to let petitioners return to their jobs. Though the only known instance of company dismissal of employees over a safety dispute, and despite the company’s invariable practice of reinstating aggrieved miners after settlement of their grievances, the Company persisted in its decision to terminate petitioners’ employment.

B. Administrative Background

Meanwhile, on April 21, petitioners had triggered the statutory mechanism for a review of their discharge by the Secretary. Their amended petition alleged that they had been discriminatorily discharged for making safety complaints to the Bureau of Mines through their union coordinator, and sought reinstatement, back pay and counsel fees. The hearing on the charge extended over three days, following which the hearing examiner ruled in their favor. The examiner found that the Smitty Baker management knew or had reason to believe that petitioners had frequently reported allegedly hazardous conditions to Safety Coordinator Gilbert, at least some of which Gilbert had transmitted to the Bureau of Mines, and that petitioners had similarly complained about the incident precipitating their discharge, which Gilbert had likewise sent to the Bureau, occasioning an inspection on the next day. The examiner also found that petitioners were twice discharged, once when Foreman Coeburn told them to leave the mine and again when Superintendent Cochran refused to reinstate them. On the basis of these findings, the examiner held that both times the company had violated Section 110(b)(1) of the Act “by reason of the fact that [petitioners] had notified an authorized representative of the Secretary of Interior of an alleged violation or danger at [the company’s] mine,” and .“because they notified their Union Safety Coordinator of alleged safety violations and dangers at [the] mine.”

The company then took an appeal to the Department of the Interior’s Board of Mine Operations Appeals, which reversed the trial examiner’s decision. To establish a violation of Section 110(b)(1), the Board said, it is ordinarily necessary for the complaining miner to carry the burden of proving “(1) that [the] miner has reported to the Secretary or an authorized representative of the Secretary an alleged violation or danger in a coal mine; (2) that after such reporting occurred, such miner was discharged from his employment; and (3) that such discharge was motivated by reason of such reporting and not for some other reason.” Rejecting the ex-airliner’s double-discharge analysis, the Board felt that petitioners were discharged, if at all, when on April 15, after conferring with Superintendent Cochran; they declined to reenter the mine, and that the evidence did not support a finding, that at that time company management knew or believed that petitioners had previously made safety complaints through Safety Coordinator Gilbert to federal mine inspectors. Therefore, the Board concluded, the reason for the discharge was nonretaliato-ry — simply petitioners’ refusal to return to work on that date — and the report which Gilbert made to the Bureau of Mines on the afternoon of April 15 was immaterial because petitioners had already been fired earlier that day. On petitioners’ application for reconsideration, the Board affirmed its original decision, and the petition for review by this court followed.

II. THE DISCHARGE

Petitioners urge us to set aside the Board’s finding that when, on April 15, they were released from employment by the company, its management was unaware of the role they had played in connection with reports of safety violations to federal authorities. Section 106(b) of the Act provides, however, that “[t]he findings of the Secretary, if supported by substantial evidence on the record considered as a whole, shall be conclusive.” Thus we may only consider whether the challenged finding is predicated on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” and by our assessment it is. The testimony of the company’s supervisory personnel was quite uniformly that they did not know or believe that petitioners were in any way associated with prior safety reports, and the circumstances upon which for a contrary inference petitioners rely, though impressive, were not compelling. It matters not how we might have resolved the issue; the question is whether the Board’s resolution was irrational or unsupported by substantial evidence, and we cannot say that it is.

But notwithstanding the Board’s conclusion that the company lacked knowledge or belief of petitioners’ involvement in the reports, the record reveals that on April 15, prior to any discharge, petitioners informed Foremen Kempton and Coeburn, and later Superintendent Cochran, that they feared the roof over their work area was unsafe. The Board’s decision does not reflect any consideration of the significance of those communications, ostensibly for the reason that the Board did not feel that reports to supervisory personnel of the company could be equated to reports to an “authorized representative” of the Secretary within the meaning of Section 110(b)(1). Our decision in Phillips v. Interior Board of Mine Operations Appeals, announced after the Board had exhausted its function in the instant case, makes clear that in that regard the Board was in error.

Over a period of several months, Franklin Phillips and fellow miners had complained to their foreman, to the members of their mine safety committee and to their district safety coordinator about health and safety hazards in their work area, including excessive coal dust. Thereafter, Phillips was fired when he refused to forego an ongoing cleanout of a clogged water spray — which, functioning, would have reduced the dust — in order to obey his foreman’s order to return to work. In a proceeding pursuant to Section 110(b), the Board was of the opinion, as it was here, that “complaints to the Mine Safety Committee would not make a prima facie case under the . Act, because the scope of protection of the Act is narrow. Complaints must be made to the Secretary or his authorized representative, not to fellow employees, supervisors, or the management of the mine.” We rejected that view; we held 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 . . . Act into play.” We cautioned that Section 110(b)(1) did not become operative “merely because a discharge originates in a disagreement between a foreman and a miner;” at the same time, we turned down the suggestion “that before a miner’s safety complaint is accorded the protection of the Act the coal miner must have instituted a formal proceeding with the Secretary of Interior or his representative.” We said that “[rjather, we look to: the overall remedial purpose of the statute . . . ; the practicalities of the situation in which government, management, and miner operate; and particularly to the procedure implementing the statute actually in effect at the . . . mine.” Measuring Phillips’ situation by those considerations, we concluded that Section 110(b)(1) had been violated.

Phillips dictates the course we must take here. The complaints petitioners lodged with the two foremen and the superintendent on April 15, before any discharge occurred gave rise to the possibility that Phillips may ultimately control the decision in this case. But while “the overall remedial purpose of the statute” is clear, the record in its present posture does not enable us to determine satisfactorily whether Phillips does govern. Unlike Phillips, we have here no findings either by the trial examiner or the Board as to “the practicalities of the situation in which government, management, and miner operate,” or “particularly [as] to the procedure implementing the statute actually in effect at the [Smitty Baker] mine.” Moreover, even if the facts in those respects equate petitioners’ complaint to company personnel to notification of an authorized representative of íhe Secretary, the Board must still ascertain whether petitioners were in fact discharged and, if so, whether their complaint was the precipitating cause of the discharge. In this milieu, we must remand the case to the Board for suitable determination of these matters, and, in consequence, a reappraisal of petitioners’ claim in light of Phillips.

III. THE REFUSAL TO REEMPLOY

There is yet another reason for which this case must be remanded to the Board for further proceedings. The Board addressed petitioners’ grievance solely as a matter of dismissal from ongoing employment, and took the pivotal inquiry to be whether their assumed discharge on April 15, 1971, was motivated by some previous notification of the Secretary or an authorized representative of some alleged hazardous or illegal condition in the Smitty Baker mine. We note, however, that not only was there the dismissal on April 15, but also the company’s refusals on that date and later on April 29 to reemploy petitioners after they had professed their willingness and desire to return to work. We note, too, that the April 29 refusal followed the April 15 report by Safety Coordinator Gilbert to federal mine inspectors of petitioners’ charge that the mine roof over the area they last worked was unsafe; and we cannot assume, absent any finding whatever by the Board on this subject, that Company officials did not know or have reason to believe that Gilbert did so. We think, then, that aside from the Phillips points, the Board erred in failing to consider whether the refusal to rehire petitioners rose to the level of a statutory violation.

Section 110(b)(1) provides, inter alia, that “[n]o person shall discharge or in any other way discriminate against . any miner ... by reason of the fact that such miner or [any authorized] representative [of miners] has notified the Secretary or his authorized representative of an alleged violation or danger. . . ” Either a “discharge” of a miner or another activity which “in any other way discriminate^] against” him for that reason is plainly within the statutory prohibition. We think the statutory language fairly contemplates a refusal to reemploy a miner because he has seen fit to complain to an authorized representative of the Secretary about working conditions in the employer’s mine.

In our Phillips opinion, we emphasized the Act’s remedial mission and its consequent entitlement to a liberal construction. We pointed out that Section 110(b)(1) “was introduced with the announced intention of giving to miners ‘the same protection against retaliation which we give employees under other Federal labor laws.’ ” We referred to NLRB v. Scrivener, wherein the Supreme Court held that a provision of the National Labor Relations Act making it an unfair labor practice for an employer “to discharge or otherwise discriminate against an employee because he has given testimony under this Act” was infringed by discharges of employees after they gave affidavits to a field examiner of the National Labor Relations Board. We quoted the language of Scrivener that “the presence of the preceding words ‘to discharge or otherwise discriminate’ reveals, we think, particularly by the word ‘otherwise,’ an intent on the part of Congress to afford broad rather than narrow protection to the employee.” We declared that “[i]n the Mine Safety Act the words ‘in any other way discriminate’ may be similarly construed.” The result we reached in Phillips was induced partly because, as we said, it “best comports with the remedial purpose of the legislation.” To be sure, our concern in Phillips was the meaning of Section 110(b)(l)’s reference to notification of the Secretary or his authorized representative of an alleged violation or danger as the reason for the employer action complained of. But obviously all operative parts of a remedial statute invoke the canon that such statutes are to be construed liberally to enable achievement of legislative objectives.

The end and aim of Section 110(b)(1) was the protection of miners against retaliation by mine operators prompted by a miner’s complaint to the Secretary or his representative of a dangerous or illegal condition in the mine. The retaliation the Section explicitly forbids is not limited to discharge, but extends to “discrimination” against a miner “in any other way” because of such a complaint. We believe it clear enough from the statutory language alone that a refusal for that reason to reemploy a previously discharged miner is a “discrimination” within the meaning of Section 110(b)(1). In any event, we are certain that the liberal construction which the statute merits must put to rest any lingering doubt on that score. ■

In the case at bar, the record discloses circumstances generating the possibility that the refusal of the Smitty Baker Company to rehire petitioners was motivated by the very consideration which Section 110(b)(1) proscribes. On the afternoon of April 15, 1971, after the meeting at which petitioners’ plea for reinstatement in their jobs was turned down, Safety Coordinator Gilbert requested the Bureau of Mines to investigate the condition of the roof of the area of the mine in which petitioners had worked. On April 16, a spot investigation was made by federal mine inspectors and, although the roof was found to be safe, the investigation uncovered ventilation problems in another area of the mine, on account of which the mine was shut down for two working days. On April 29, at a second meeting, company officials again refused to allow petitioners to return to their jobs, although petitioners offered to do so without back pay and although the company had never before dishonored a miner’s request for reinstatement.

These circumstances clearly called for an inquiry as to whether the company’s refusal on April 29 to rehire petitioners — a “discrimination” against them— was because they, through Gilbert as their authorized representative, had on April 15 notified the Bureau of Mines, as the Secretary’s authorized representative, of the allegedly unsafe and illegal conditions in the mine. The Board did not make that inquiry, notwithstanding petitioners’ invocation of Section 110(b)(1) as the basis for their claim that they were entitled to restoration to their jobs. It may be that the Board, having concluded that petitioners’ discharge on April 15 was attributable to their refusal earlier that day in the mine to return to work, felt that the matter was at an end. But surely, the Board’s finding on the reason for the firing on April 15, particularly in light of Gilbert’s subsequent report to the Bureau of Mines, cannot be accepted as a finding on the reason to rehire on April 29. And if indeed the Board felt that a retaliatory refusal to rehire, unlike a retaliatory discharge, is legally innocuous, we would reject that myopic view of the statute. The Board must now determine whether the Smitty Baker Company’s refusal on April 29 to rehire petitioners was motivated by the consideration which Section 110(b)(1) makes taboo.

The decision of the Board of Mine Operations Appeals is vacated, and the case is remanded to the Board for further proceedings in conformance with this opinion.

So ordered.

MacKINNON, Circuit Judge,

dissenting in part and concurring in part:

I dissent from the application to this case of the decision in Phillips v. Interior Board of Mine Operations Appeals, 163 U.S.App.D.C. 104, 500 F.2d 772 (1974). In my view Phillips is not applicable to this case on the facts and moreover I do not consider that Phillips correctly interprets the Mine Safety Act of 1969. My objection to Phillips is that it places an interpretation on the statute that is unsupported by the language of the statute and is overbroad. To apply Phillips to this case would be a further impermissible extension. A petition for certiorari is pending in Phillips. Petition for cert, filed sub nom. Kentucky Carbon Corp. v. Interior Board of Mine Operations Appeals, 43 U.S.L.W. 3318 (Nov. 21, 1974) (No. 74 — 623). When appellants sought reemployment or reconsideration of their discharge on April 29th, the report had been made to the authorized representative of the Secretary (the Bureau of Mines) so Phillips is clearly irrelevant at that time.

I thus concur in the remand of the case to the Board. In that hearing I would not concur in the application of Phillips principles. However, since appellants waived back pay, it is hard for me to understand why the men are not reemployed. That fact, if unexplained, may go further to proving appellants’ case than any other single item of evidence.

      . Act of Dec. 30, 1969, Pub.L. No. 91-173, 83 Stat. 742, 30 U.S.C. §§ 801 et seq. (1970).

      . “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.” Federal Coal Mine Health and Safety Act of 1969, tit. I, § 110(b)(1), 30 U.S.C. § 820(b)(1) (1970).

      . When discharged, Earnest Scott had 28 years and Munsey 12 years ^ of mining experience. Arnold Scott, son of Earnest Scott, had worked for the Smitty Baker Coal Company about nine months.

      . It is a bituminous coal mine which, when . the events in suit occurred, employed about 20 miners underground on two shifts per day, five days a week, and produced about 1,000 tons of coal a day. Then in operation about two and a half years, the mine was worked in two sections, each utilizing a double-auger coal-drilling machine.

      . The agreement is the Bituminous Wage Agreement of 1968, between the union and the mine operators.

      . The company’s mining operations followed the height of a coal seam about 40 to 42 inches thick, affording a maximum mine roof level of approximately 42 inches. In each of its two sections was a foreman and a normal' crew of seven men, whose functions were coordinated with those of the drilling machine. A jacksetter and two timbermen worked on each side of the machine, and the seventh crewman operated the machine.

        Jacksetters and timbermen must work on their hands and knees, and are equipped with knee and elbow pads for that purpose. Each jacksetter sets a jack on his side of the machine, and the jacks are then raised until they are pressed securely against the roof and the floor. Ropes are extended from the two jacks to the machine, which pulls along the ropes as it works laterally across the face of the coal seam. As the machine moves from left to right, the two timbermen on the left side install timbers between the floor and the roof while the timbermen on the right “knock down” their timbers ahead of the lateral motion of the machine. As the machine moves from right to left the process is reversed, the right timbermen installing timbers and the left timbermen knocking down their timbers. When the machine completes a cut into the working face, jacksetters take down their jacks and reset them in an advanced position on a line approximating the butt end of the machine augers. Between jacksetting and resetting, jacksetters shovel loose coal and coal dust against the working face to enable the machine to scoop it up as it makes its passes. While jacksetters work up to the working face, timbermen work somewhat behind jack-setters but still near the working face, in an area which is unprotected by permanent timbers.

      . See note 6, supra.

      . Act of Dec. 30, 1969, Pub.L. No. 91-173, § 509, 83 Stat. 803.

      . In the administrative proceeding which was to follow, the trial examiner found that during the eight-month period beginning October 19, 1970 — the period for which statistical data were presented in evidence — the mine was inspected 24 times by five inspectors who issued 32 notices of violations and two mine-closure orders for a variety of statutory violations.

      . The mine safety committee was established by the collective bargaining agreement. As provided by the agreement, the committee inspects mine developments and equipment used in producing coal. If the committee believes that conditions exist which imperil miners, it reports its findings and recommendations to management; if the committee deems the danger imminent, it may recommend immediate evacuation of all miners from the ' endangered area, and that the operator is obliged to do.
      Additionally, the committee may also assume a role as an informal grievance arbitrator. Safety problems may thus be brought to a member of the committee, who then' discusses it with a mine foreman. If there is no amicable resolution, the committee member then reports the problem to the union’s safety coordinator, who in turn may seek the aid of a federal mine inspector.

      . In each of its territorial districts, UMWA has created the position of safety coordinator to establish liaison between state and federal mine inspectors, and to deal more effectively with safety matters. The safety coordinator endeavors to resolve safety problems called to his attention by either a miner or a member of the safety committee. He first negotiates with the mine operator and, if necessary, contacts an inspector to arrange for a spot inspection. As a signatory to the collective bargaining agreement, the Smitty Baker Mine was given written notice of the establishment and function of the safety coordinator in its district.

      . See note 6, supra.

      . The rock apparently grazed Munsey’s arm and bruised it, but the bruise did not disable him.

      . See note 4, supra.

      . Since petitioners’ section of the mine could not operate unless Munsey and Earnest Scott continued to work as jacksetters, see note 6, supra, Foreman Coeburn thought that he would have to close down the section for the day. However, two other men offered to perform their jobs, and Coeburn then offered to let petitioners work as timberers. Timberset-ting would have placed petitioners in the area of the rock fall, and would have continued to expose them to what they deemed a dangerous mine roof.

      . After petitioners refused to return to work, Coeburn told them, “[i]f you ain’t going to work, get your buckets and go home.” Coe-bum warned them that if they left the mine, the superintendent might fire them.

      . See note 11, supra.

      . Gilbert expressed the view that petitioners’ discharge for making a safety complaint was unlawful, especially in light of the fact that no previous dispute over a safety matter had resulted in termination of a miner’s employment at the company’s mine.

      . On April 16, the day after the incident in the mine, the Bureau of Mines, in response to Gilbert’s request, made a spot inspection which revealed that the roof in the area of the rock fall was normal and safe. The in-, spection uncovered ventilation problems in another area, however, as a result of which the mine was closed for two working days.

      . Ralph Baker, manager of the mine, refused to allow petitioners to return to work. He felt that “my foremen were right by telling them that if they wasn’t going to work, to go on outside.” Baker indicated, however, that he might be able to use petitioners at some future date.

      . “Any miner or a representative of miners who believes that he has been discharged or otherwise discriminated against by any person in violation of paragraph (1) of this subsection may, within thirty days after such violation occurs, apply to the Secretary for a review of such alleged discharge or discrimination. A copy of the application shall be sent to such person who shall be the respondent. Upon receipt of such application, the Secretary shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing at the request of any party to enable the parties to present information relating to such violation. The parties shall be given written notice of the time and place of the hearing at least five days prior to the hearing. Any such hearing shall be of record and shall be subject to section 554 of Title 5. Upon receiving the report of such investigation, the Secretary shall make findings of fact. If he finds that such violation did occur, he shall issue a decision, incorporating an order therein, requiring the person committing such violation to take such affirmative action to abate the violation as the Secretary deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner or representative of miners to his former position with back pay. If he finds that there was no such violation, he shall issue an order denying the application. Such order shall incorporate the Secretary’s findings therein. Any order issued by the Secretary under this paragraph shall be subject to judicial review in accordance with section 816 of this title. . . . ” Federal Coal Mine Health and Safety Act of 1969, tit. I, § 110(b)(2), 30 U.S.C. § 820(b)(2), (1970).

      . See note 11, supra.

      . See note 21, supra.

      . In an exercise of the rulemaking power conferred by § 508 of the Act, 30 U.S.C. § 957 (1970), the Secretary has promulgated regulations implementing the statutory procedure, see note 21, supra, for consideration and disposition of applications for administrative review of action assertedly violative of § 110(b)(1). 30 C.F.R. §§ 301.1 et seq. (1971). The statutorily-mandated hearing is conducted by an administrative law judge (formerly trial examiner), who renders a decision incorporating findings of fact and conclusions of law. Id. §§ 301.60 to 301.74. Parties may appeal from that decision to the Board of Mining Operations Appeals, which renders the final administrative decision in the case. Id. §§ 301.80 to 301.83.

      . See Munsey v. Smitty Baker Coal Co., 79 Interior Dec. 501, 504 (1972).

      . See note 2, supra.

      . Munsey v. Smitty Baker Coal Co., supra note 25, 79 Interior Dec. at 504.

      . Munsey v. Smitty Baker Coal Co., supra note 25.

      . 30 C.F.R. § 301.68 (1971) allocates the burden of proof.

      . Munsey v. Smitty Baker Coal Co., supra note 25, 79 Interior Dec. at 505. The Board stated' that while these are the elements of proof in most factual situations, it realized that it might be necessary to refine them on a case-by-case basis. For example, said the Board, if a mine operator discharged a miner under the erroneous belief that the miner had reported alleged violations or dangers to the Secretary, and that belief motivated the discharge, a violation of § 110(b)(1) would occur. Id at 505 n.7. The Board stated further:
      Clause (A) of subsection 110(b)(1) is intended to protect the reporting by miners of alleged safety violations or dangers in coal mines. However, the plain language of clause (A) of subsection 110(b)(1) limits the protection to reporting alleged violations or dangers to the Secretary or his authorized representative. It does not protect the makings of general safety protests or the reporting of alleged violations or dangers to fellow employees, supervisors, or the management of a coal mine. On the other hand, the miner need not personally make the report directly to the Secretary or to the authorized representative of the Secretary. It is sufficient if he instigates or provides the initial impetus for the required report, provided he intends that the report ultimately will be made to the Secretary or his authorized representative by someone else, who will serve as the medium for communicating the report.

        Id. at 505-506.

      . The Board had “considerable doubt wheth- ■ er the . . . termination of [petitioners’] employmment was by discharge or voluntary quit. However, since the essence of our decision turns on the failure of proof as to the element of motivation, we assume, without deciding, that a discharge did, in fact, take place.” Id. at 507.

      . See text supra following note 16.

      . Manager Baker, Superintendent Cochran and Foreman Coeburn all denied any knowledge or belief as to reports by petitioners to Safety Coordinator Gilbert for relay to federal mine inspectors. Foreman Kempton, like Superintendent Cochran, testified that Munsey had complained about the quality of the air in the mine, but not that Munsey told him that he was going to report the condition to Gilbert. Petitioners introduced no direct evidence to the contrary, but relied instead upon the number and frequency of complaints to Gilbert as circumstantial evidence that company management either knew or had reason to believe that petitioners were involved. Munsey v. Smitty Baker Coal Co., supra note 25, 79 Interior Dec. at 507-10.

      . The Board stated that if Kempton, Coeburn or Cochran, all management personnel, had intended to retaliate they hardly would have offered to return petitioners to work in the mine as timbermen. Id. at 511.

      . See text supra at note 19.

      . Munsey v. Smitty Baker Coal Co., 79 Interior Dec. 676 (1972).

      . See 30 U.S.C. § 816(a) (1970).

      . For purposes of our review, we must accept the premise, assumed by the Board, that petitioners were discharged near the end of their conversation with Superintendent Cochran on April 15. See note 31, supra, and accompanying text.

      . 30 U.S.C. § 816(b) (1970).

      . Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).

      . See note 33, supra.

      . See SEC v. Chenery Corp., 332 U.S. 194, 207, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Columbia Broadcasting System v. FCC, 147 U.S. App.D.C. 175, 185, 454 F.2d 1018, 1028 (1971).

      . See text supra at notes 15-17.

      . Munsey v. Smitty Baker Coal Co., supra note 25, 79 Interior Dec. at 506. See text supra at note 29.

      . 163 U.S.App.D.C. 104, 500 F.2d 772 (1974), petition for cert, filed, 43 U.S.L.W. 3318 (U.S. Nov. 21, 1974) (No. 74-623).

      . Id. at 109, 500 F.2d at 777. See note 30, supra, and accompanying text.

      . Id. at 110-115, 500 F.2d at 778-783.

      . Id. at 111, 500 F.2d at 779.

      . Id.

      . Id.

      . Id.

      . Id. at 111-113, 500 F.2d at 779-781. It was conceded by the mine operator that, pending resolution of a safety or health complaint, the operator’s procedure indulged the miner the prerogative of refusing to work under conditions which he believed in good faith to be hazardous. Since Phillips felt that way about the dust in his work area, and was merely endeavoring to unclog the water spray before resuming work activities, we rejected the Board’s suggestion that Phillips was discharged only for a simple refusal to work. We said that Phillips was not required to accept his foreman’s evaluation of the danger; that plainly he had been discharged for not accepting the foreman’s safety determination; and that the effective cause of his discharge was his complaint about working conditions in the mine. Id.

      . Id. at 113, 500 F.2d at 781. We said that “to hold that only a miner’s discharge after he reaches the Bureau of Mines with his complaint is protected by the . . . Act, would nullify not only the protection against discharge but also the fundamental purpose of the Act to compel safety in the mines.” Id. (emphasis in original). We pointed out that unless § 110(b)(1) is construed as it was in Phillips, “it will be easy for management to avoid the prohibitions of the Act. If every miner who complained of safety device failures could be placed in Phillips’ situation, the Act would be a hollow promise of protection; a foreman’s determination of safety would become final.” Id. We added that “[t]o hold that only a discharge after a formal proceeding has been instituted is protected, but that a discharge after the miner has taken the first step in the complaint procedure by complaining to his foreman is not protected, would be to invite all employers to gut the Act by quick discharges of complaining employees.” Id. at 113 n.32, 500 F.2d at 781 n.32 (emphasis in original).

      . See text supra at note 51.

      . See text supra at note 51.

      . See text supra at note 51.

      . See note 31, supra.

      . The Board’s conclusion that the reason for the discharges was petitioners’ refusal to go back to work was predicated upon the view that the company’s management did not know or believe that petitioners had initiated safety complaints which reached federal mine inspectors, and consequently was not motivated by a desire to retaliate therefor. See text supra at notes 33-34 and note 34, supra. We think, however, that much more is involved. The evidence is clear that petitioners feared another rock fall from the roof, and our Phillips opinion makes plain that a miner may have the right to refuse to work under conditions believed in good faith to be dangerous. 163 U.S.App.D.C. at 111-112, 500 F.2d at 779-780. Like Phillips, the situation here was not, as the Board apparently thought, “a simple refusal to work." Id. at 780. It remains for the Board to reexamine its position on this aspect of the case.

      . See text supra at notes 15-20.

      . See text supra at notes 19-20.

      . An important fact in this regard is that a federal inspection followed on the very next day. See note 19, supra.

      . See Part II, supra.

      . See note 2, supra.

      . Phillips v. Interior Bd. of Mine Operations Appeals, supra note 45.

      . 163 U.S.App.D.C. at 113, 500 F.2d at 781-783.

      . Id. at 114, 500 F.2d at 782, quoting Senator Kennedy, who introduced the floor amendment which eventuated as § 110(b)(1) of the Act.

      . 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972).

      . 29 U.S.C. § 158(a)(4) (1970).

      . NLRB v. Scrivener, supra note 67, 405 U.S. at 120-125, 92 S.Ct. at 800-803.

      . Phillips v. Interior Bd. of Mine Operations Appeals, supra note 45, 163 U.S.App.D.C. at 114, 500 F.2d at 782-783.

      . Id. at 115, 500 F.2d at 783.

      . Id.

      . See Part II, supra.

      . Peyton v. Rowe, 391 U.S. 54, 65, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967); National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 291, 443 F.2d 689, 706 (1971); Jordan v. Acacia Mut. Life Ins. Co., 133 U.S.App.D.C. 224, 228, 409 F.2d 1141, 1145, cert. denied, 395 U.S. 959, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969).

      . 115 Cong.Rec. 27948 (1969) (remarks of Senator Kennedy).

      . See note 2, supra.

      . See text supra at notes 18-19.

      . See note 19, supra.

      . See text supra at note 20.

      . See text supra at notes 19-20.

      . See text supra at notes 31-33.

      . See text supra at notes 63-76.