Clement had a number of disputes with route supervisors regarding his use of the flashers. He received verbal and written warnings for his disregard of MTS's flasher policy. T. at 131; CX 18, 24. Clement's interpretation of the regulation caused problems because MTS route supervisors understood the activation of four-way flashers as a request for assistance. T. at 317-318. At one point, the police department in West Allis, Wisconsin contacted Michael Vebber, MTS's Director of Operations, and told him that a bus had been traveling through West Allis on several occasions with its four-way flashers activated, but when the police responded, they found there were no emergencies. T. at 403. The police department informed MTS that, if such conduct continued, they would discontinue responding to buses driving through their municipality with their flashers activated. T. at 404.

   During his employment with MTS, Clement complained about other driver safety matters. On July 3, 1997, he sent letters to the Milwaukee County Board and local television stations alleging that MTS knowingly violated federal and state laws regarding safety issues. CX 10. On July 8, 1997, Clement contended that MTS assigned him overtime work in violation of the FMCSR's "hours of service" rules, specifically 49 C.F.R. § 395.3(a)(1). T. at 349, CX 25.

   Clement was scheduled to drive two routes on February 4, 1999. His morning route ended at 9:04 a.m., and he was scheduled for an afternoon route that would have begun at 1:27 p.m. T. at 68. Mullihan posted Clement's badge number behind the clerk's glass sometime between the end of his first shift and start of his second. This was MTS's standard procedure for informing operators that they needed to see a MTS supervisor. T. at 322-23, 357.

   Clement returned to the station at 1:27 p.m. to start his afternoon route. Chuck Ciardo, a station clerk, told Clement to see McGinty. T. at 51-52. Mullihan observed Clement walking past the window to McGinty's office and told Clement about the meeting and that a Union representative was on the way. RX A. Clement told Mullihan that he had work to perform and could not attend a meeting. McGinty overheard this comment and told Clement his work had been reassigned. Clement responded by stating, "[i]f I don't have any work, guess I'll go home." CX 2 at 20. Clement began walking away but was followed by McGinty who, while about five feet behind Clement, told him if he left he would charged with insubordination. RX I, J.

   Clement continued walking toward a table to retrieve items that he brought to work. McGinty went to the edge of the table and, facing Clement, told him "again if you leave, it'll be insubordination." T. at 431. Other MTS employees present in the area were engaged in conversation, but as soon as McGinty told Clement to come back, those people stopped talking. T. at 326. Clement turned around without saying anything and walked out into a hallway leading to an exit door. T. at 371. Clement then went to the Union office. T. at 207.

   McGinty told the front counter clerk to instruct the person working Clement's afternoon route to finish it. McGinty then went into the board room and informed another clerk to place Clement "on suspension to my office for insubordination and not to assign any work until further notice." RX G. McGinty returned to his office where Mullihan and Bassler were waiting; Bassler indicated that he was waiting for Clement. McGinty and Mullihan told Bassler about Clement's departure and stated that Clement's actions were insubordinate. RX G.

   Bassler went to the Union office, where he encountered Clement. Bassler called McGinty and told him that Clement was in the Union office and they both wanted to return to McGinty's office. McGinty indicated that he would receive them. T. at 280.

   Clement and Bassler returned to the station and met with McGinty and Mullihan. Bassler stated that they should discuss Clement's decision to leave the station, but McGinty informed them that they needed to first discuss the flasher reprimand. T. at 247-48. Mullihan then proceeded to inform Clement that MTS would no longer tolerate his improper use of four-way flashers and that progressive discipline would apply to future violations. Clement admitted that Mullihan stated: "You don't use your flashers when you're driving. You only use them when you've got a problem on the bus. They're only for when we've got a fight or a fare dispute. You don't use them when you're making stops." T. at 160. Mullihan then handed Clement a written warning. T. at 328-330.

   McGinty then proceeded to discuss "the chain of events that occurred earlier in the station." T. 330. Bassler stated that Clement should not be suspended for insubordination because he eventually returned to the station. T. at 249. McGinty nevertheless terminated Clement's employment for insubordination. McGinty prepared a Record of Disciplinary Action form in which he wrote, "[i]n view of your overall work record, including disregard for Company policy, disregard for management authority and insubordination, you are hereby notified that you are discharged, effective February 4, 1999." RX A.

   Clement grieved the three-day suspension and his discharge under the grievance procedure provided by MTS's Labor Agreement with the Union. RX N-P, T. at 250-251. MTS denied Clement's grievances, and the Union declined to take either grievance to arbitration. T. at 399, 402.

   Case history

   On August 4, 1999, Clement filed the complaint that is the subject of this case. In his complaint and accompanying documents, Clement alleged that the termination of his employment was the result of his compliance with the FMCSR and state laws pertaining to motor carrier safety. After an investigation, OSHA concluded on September 29, 2000 that MTS did not violate the STAA. Clement appealed the determination and requested a hearing before an ALJ. An ALJ conducted a hearing on February 13-14 and March 13, 2001.

   On November 29, 2001, the ALJ issued a Recommended Decision and Order (R. D. & O.) recommending that Clement's case be dismissed. The ALJ found that Clement failed to "establish by a preponderance of the evidence that either the final warning on the use of the flashers, or his termination for insubordination, was for reasons protected by the STAA." R. D. & O. at 44-45.

   The Secretary of Labor's jurisdiction to decide this matter by authority of 49 U.S.C. § 31105(b)(2)(C) has been delegated to the ARB. See Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. § 1978.109(c)(2002).

   When reviewing STAA cases, the ARB is bound by the factual findings of the ALJ if those findings are supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3). See BSP Trans, Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995). Substantial evidence is that which is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

   In reviewing the ALJ's conclusions of law, the Board, as the designee of the Secretary, acts with "all the powers [the Secretary] would have in making the initial decision . . . ." 5 U.S.C. § 557(b). Therefore, the Board reviews the ALJ's conclusions of law de novo. See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).

   1. Governing Law

   The STAA protects operators of commercial motor vehicles and provides, in pertinent part:

(a) Prohibitions. (1) A person may not discharge an employee or discipline or discriminate against an employee regarding pay, terms, or privileges of employment because –

(A) the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding; or

(B) the employee refuses to operate a vehicle because –

(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or

(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.

49 U.S.C. §31105(a). Subsections (1)(A) and (1)(B) of the foregoing provision are referred to as the "complaint" clause and the "refusal to drive" clause, respectively. See LaRosa v. Barcelo Plant Growers, Inc., ARB No. 96-089, ALJ No. 96-STA-10, slip op. at 1-3 (ARB Aug. 6, 1996). At issue here is subsection (1)(A), since it is not alleged that Clement refused to drive.

   Under the burdens of proof and production in STAA proceedings, a complainant must first make a prima facie showing that protected activity motivated the respondent's decision to subject the complainant to adverse employment action. The respondent may rebut this showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. See, e.g., Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 98-STA-8, slip op. at 7 (ARB July 28, 1999) citing Clean Harbors Envtl. Svcs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) and Moon v. Transp. Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).

   When the respondent presents evidence of a nondiscriminatory reason for adverse employment action, the burden shifts to the complainant to prove, by a preponderance of the evidence, that the legitimate reason proffered by the employer is a pretext for discrimination. Calhoun v. United Parcel Serv., ARB No. 00-026, ALJ No. 99-STA-7, slip op. at 5 (ARB Nov. 27, 2002), citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In proving that a respondent's asserted reason for adverse action is pretextual, the employee must prove not only that the respondent's asserted reason is false, but also that discrimination was the true reason for the adverse action. At all times the complainant bears the ultimate burden of persuading the trier of fact that the employer discriminated against him. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993).

   2. Protected Activity

   Clement engaged in protected activity pursuant to subsection (1)(A) of the STAA when he filed his July 30, 1997 complaint with OSHA. 49 U.S.C. §31105(a)(1)(A); see R. D. & O. at 6, n.6. He also engaged in protected activity when he complained to MTS and county officials about alleged hours of service violations. CX 10, 25. See, e.g., Moravec v. HC & M Transp., Inc., 1990-STA-44 (Sec'y July 11, 1991).

   We make no finding with respect to whether Clement's complaints about MTS's four-way flasher policy constituted protected activity. However, even assuming that Clement's complaints are protected under the STAA, we conclude that MTS terminated Clement for a legitimate, non-discriminatory reason, namely ignoring his supervisor's commands on November 20, 1998, and December 4, 1999.

   3. Termination for Insubordination

   We also conclude that Clement has not met his burden of proving that MTS's explanation for his termination was pretextual. In his grievance proceeding Clement presented the names of ten MTS employees whom he alleges were insubordinate but not subjected to discipline. RX P. However, he has not provided any evidence in these proceedings to support this list. Clement offered only the testimony of Ramon Rivera, another MTS driver, to prove that other MTS employees engaged in insubordinate behavior but were not reprimanded for their actions. T. at 75-98. Rivera testified about his displeasure with a vacation selection process and a related outburst, but his actions were not insubordinate. We therefore conclude that Clement has not met his burden of proving that MTS's explanation for his termination is pretextual.

   After a thorough review of the record, we conclude that MTS did not terminate Clement's employment because he engaged in protected activity. Although Clement engaged in protected activity while he was employed by MTS, termination of his employment was the result of his insubordinate actions on November 20, 1998 and February 4, 1999. He has therefore failed to meet his burden of establishing that MTS discriminated against him because he engaged in protected activity.

   We accept the ALJ's recommendation and therefore DENY the complaint.

   SO ORDERED.

      WAYNE C. BEYER
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge