Respondent introduced 51 exhibits which were admitted including driver vehicle inspection reports and driver daily work sheets filled out by Mason, together with disciplinary action taken against Mason for infractions of company rules (RX-1 through 21, and RX-24 through 27); disciplinary action taken against other ready mix-drivers (RX-28 through 45); Respondent's drivers manual (RX-46); collective bargaining agreement between Respondent and Teamsters Local 53 (RX-47); material data safety sheet on superplasticizer (RX-48); OSHA's notice to Respondent about Mason's complaint, together with their finding, and Mason's objections to said findings. (RX-49 through 51).

   1. Whether Respondent warned, suspended, discharged, or otherwise discriminated against Mason in violation of section 31105 (a)(1) the Act, because of Mason's activity in raising internal safety complaints with Respondent concerning: (a) an inability to safely deliver concrete on April 28, 1999; (b) inadequate time to prepare pre or post-trip inspection reports as required by Federal Motor Carrier Safety Regulations, 49 C.F.R. § 393.13; (c) dangerous delivery conditions to a customer located off highway 80 on May 1, 2001; or (d) excess fatigue on June 27, 2001.

   2. Whether Respondent warned, suspended, discharged or otherwise discriminated against Mason in violation of Section 31105 (a)(1)(B)(i)(ii) of the Act, because of Mason's action in refusing to: (a) deliver concrete on April 28, 1999; (b) transport a water control substance known as "superplasticizer" on November 22, 2000; and (c) drive on April 25, May 1, 28, 29, June 28, and 29, 2001.

A. Background

   Respondent is a person and a commercial motor carrier within the meaning of Sections 31101 and 31105 of the Act. Respondent is owned by Granite Construction and engaged in the manufacture and transportation of concrete by commercial motor vehicles, ready-mix cement trucks, with a ready-mix plant located in Sparks, Nevada. Respondent employs about 60 truck drivers utilizing 60 trucks in its operations delivering concrete to various commercial and residential job sites within a 50 mile radius of Sparks. On occasion, Respondent delivers concrete for Capital City Concrete which has a ready mix facility in Carson City, Nevada, and is also owned by Granite Construction. (Tr. 482, 483 ).

Section 3: Any disciplinary notice shall not remain in effect for a period of more than twelve (12) months from the date of occurrence which gave rise to such disciplinary notice. In this Article, "days" shall mean Monday through Friday, excluding Saturdays, Sundays or Holidays. To be valid, discipline must be issued within five (5) calendar days of an infraction and/or when the Company becomes aware of an infraction. Failure to act within the specified five (5) days, shall waive the Company's right for discipline or discharge over said employee. Disciplinary notices, to be considered as valid, must be issued by the Company and signed by the employee, with a copy to employee, and a copy to Union, by certified mail. If the employee refuses to sign, the notice must indicate. Suspension and discharges to be mailed by certified mail. Notice letters shall be specific, not general in nature, as to the alleged violation (i.e. time, date, place, and nature of violation).

Section 4: Disciplinary notices signed by any employee shall not constitute an admission of guilt, but shall only indicate the employee is aware of the alleged violation. Letters of reprimand to Employees shall be considered as automatically protested and shall not be heard until such time as they are used as a basis for suspension or discharge. In no case, however, shall letters of reprimand be kept on file over a twelve (12) month period from date of issue.

   Grievances were handled pursuant to Article 14 of the Ready Mix Agreement entitled "Grievance Procedure and Settlement of Disputes." The grievance procedure involved a 4 step process with the employee first attempting to resolve the dispute with his immediate supervisor followed by the aggrieved employee taking his grievance to the Union, who in turn with the employee, presents it to management followed by a presentation of the matter to a Board of Adjustment consisting of two members appointed by the Employer and Union. In the event that a majority of Board members cannot resolve the dispute, either party may refer the matter to binding arbitration. (RX-47, pp. 8-11).

   Under Article 12 of the Ready Mix Agreement entitled "Elimination of Restrictions on Production" the Employer reserved the exclusive right to manage the business and direct its work force including the right to hire, suspend, transfer, promote, demote or discharge for just cause, relieve employees from duty because of lack or work and determine the number and schedule of shift. Further, Employer reserved the right to establish reasonable company rules provided such rule did not conflict with the union agreement.

   Pursuant to its right to establish work rules, Respondent provided its drivers with a company manual notifying drivers of its commitment to safety, requiring compliance with safety rules including the attendance at safety meetings and notifying supervisors of unsafe conditions. (RX-46). Further, Respondent told its drivers that: (1) tardiness for work would not be tolerated and was cause for discipline; (2) pre and post-trip inspections reports had to filled out to insure truck safety; (3) loading procedure had to be followed including attendance by the driver while his truck is being loaded under the plant with the mixer drum fixed in the charge position. The manual further advised drivers of rules for operation on the road and on the job site; use of stand by time in the year for cleaning truck, taking on fuel and checking tires; use of truck radios for company business with avoidance of profanity; and completion of time cards on a daily basis. Driver were also advised at the end of the days to wash up and fuel their trucks and complete the post trip inspection for which they would be allowed 30 minutes. (RX-46, p.10).

   In practice, Layton and other supervisors exercised discretion when imposing discipline taking into consideration the workers background and related circumstances, such as attitude and timing of events, preferring to retain rather than discharge drivers especially if they were making progress acting on the belief that it was better to keep known entity rather than hiring someone completely new off the street. (Tr.171-173).

B. Mason's Work History

   Concerning the warnings of January 25, and February 21, 2001, Mason contends that Layton issued those warnings because he had filed internal safety complaints about having insufficient time to perform either pre or post-trip safety inspections. Smith testified that drivers on going to work were expected to do a pre-trip inspection where they would walk around and check the truck. This would normally take about 15 minutes after which the truck pulled under the plant and was loaded and then washed off. The driver then went to the job site, unloaded, and washed off his truck and returned to the plant for additional loads. (Tr. 73-77). At the end of the day, the driver had a half hour to wash out and fuel his truck and do paper work. According to Smith, this process took about 30 to 45 minutes. If there was not enough time at the end of the day to do this, the driver could use free time the following day to finish washing and if necessary could use a hammer to chip away excess concrete. Further, drivers did not always have sufficient time in the morning to always do a pre-trip inspection. (Tr. 80-87).

   After reviewing the entire record, the Court is convinced that Layton issued the January 25, 2001, warning because Mason charged excessive time (1 hour and 15 minutes) to allegedly clean his truck without providing any explanation for such action. Regarding the February 21, 2001, meeting where Mason was again accused of using excessive time for truck washing as well as showing up for work late and failing to bring superplasticer to job sites, Layton credibly testified that it was common practice to transfer the superplasticer in the truck cab and that such had been done without incident. Further, Mason never denied coming to work late or explaining the need for excessive wash time. In fact safety coordinator Tobin told Mason to take time to do the necessary pre and post-trip inspections and cleaning and paid him for the time charged. Mason never provided any satisfactory explanation for not being able to use free time during the day to wash or clean his truck properly.

   Regarding the verbal warning of May 2, 2001, wherein Layton approached Mason on the job-site and questioned him about excessive absenteeism for personal reasons, Mason contends that Layton criticized his attendance only because of an incident on May 1, 2001 when he called the plant and reported a safety hazzard on Highway 80 which delayed delivery. The record however does not contain any evidence to connect the incidents or suggest retaliation for reporting the safety hazzard. Rather, it shows that Tobin complimented Mason for properly accessing the situation stating it was a "good call."

   Mason contends that the July 2, 2001 warning for excessive absenteeism was pre-textual because on two of the days in question, (May 28 and 29, 2001), he had approved vacation and on the other days, (April 25, June 28 and 30, 2001), he either called in or approved absences. Concerning the refusal to drive on June 28 the record shows the following: On June 25, 2001, Mason worked 12 hours from 2:45 a.m. to 2:45 p.m. Mason was then off about 16 hours and reported for work on June 26, 2001 at 6:30 a.m. and worked until 1:45 p.m. Mason was scheduled to report back for work later that day at 11:30 p.m., went home and slept for about 6 hours and then called the plant at 9:30 p.m. only to learn that his schedule had been changed and that he did not have to report for work until June 27, 2001, at 6:00 a.m. On June 27, 2001, Mason worked from 6:00 a.m. to 3:30 p.m., after having been off duty for almost another 16 hour period. On June 28, 2001, Mason called in saying he was taking off that day. On the following day June 29, 2001 he reported for work at 5:45 a.m. and worked to 5:00 p.m. without noting any fatigue problem on his driver daily log. Later that evening at about 9:00 p.m. Mason called the plant for his starting time on June 30, 2001 and informed Respondent he would not be in due to the fact that he needed time off to recover (not due to fatigue) from the past week's work. (Tr.401-407). Given the time off between job assignment the Court finds no objective basis for Mason's alleged fatigued complaints and certainly no basis for refusing work on June 28 or 30, 2001.

C. Discipline of Other Drivers.

   Drucker was disciplined on four separate occasions from January 14, 2000 to November 20, 2000 during which time he warned, suspended twice, and finally terminated for leaving work early, failing to report an accident, damaging truck tires and fire hydrant. Bobby Pratt received four written warnings from April 21, 1998 to February 5, 2002 for delivering concrete with incorrect slumps, damaging a traffic semaphore, and discharging concrete on a street and parked vehicle. Todd Kristen received two written warnings and a suspension over a period from March 24, 2000 to September 24, 2002 for leaving his truck unattended, horseplay, and damage to rebar and a truck tire.

   After reviewing the above chart, the Court finds nothing to confirm Mason's assertion of disparate discipline. Rather, it appears as Layton testified that each case was reviewed on its own merits with Respondent exercising discretion trying to work with and educate drivers rather than impose discipline. As evidence of this policy Respondent periodically posted notices at the plant informing drivers of work rules covering a variety of subjects including wearing of hard hats, turning in logs, cleaning trucks, not stopping for personal business while hauling loads, use of headlights on early morning pours, dumping of excess concrete, reporting safety hazzards, harassing fellow employees, failing to perform post-trip inspections and failing to report for work or showing up late for work. (CX-64 through CX-76). Of particular interest were those notices related to truck cleaning issued on February 28, 2000, July 29, 2002, and March 3, 2003. (CX-66, 72, 73, and 76). Respondent was obviously concerned about truck cleanliness because of the safety issue presented by loose concrete hitting other vehicles while in transit to or from job site, as well as the cost incurred with truck painting.

E. Discussion, Conclusion, and Recommended Order

   In order to prevail on a retaliatory discipline or discharge claim under the Act, a complainant must prove: (1) he/she engaged in protected activity under the Act; (2) the employer took adverse employment action against him/her; and (3) the employer's reason(s) for the adverse action were discriminatory and due to the protected activity. BSP Transp Inc. v. U.S. Department of Labor, 160 F.3d 38 , 46(1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 46 ( (2nd Cir. 1995); Moon v. Transport Drivers, Inc., (6th Cir. 1987) ;See Yellow Freight System, Inc. v Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). Such claims are often analysed under the familiar burden shifting framework of Mc Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However, where as here the employer has satisfied its burden of producing evidence of a non-discriminatory reason for adverse action the Mc Donnell Douglas framework falls by the wayside with the trier of fact faced with the ultimate question of whether the employer intentionally discriminated against complainant or whether complainant established the elements of his/her case by preponderance of credible evidence.

   In the present case, the Court is not convinced that Complainant was engaged in protected activity when he got into a verbal argument with a customer on April 28, 1999 for as Layton credibly testified the vehicle could easily have been moved if it in fact blocked an entrance and in fact another driver made the delivery without incident. The Court is also not convinced that carrying a container of superplasticizer in a truck cab creates a safety hazzard so as to violate any motor vehicle standard or create a objective reasonable belief that operation of a motor vehicle while carrying such would pose a risk of serious injury to either the driver or public. Indeed, credible testimony from Layton showed such carriage had been done without incident. Reporting missing or malfunctioning equipment or inadequate time for either pre or post-trip inspection pertain to motor vehicle standards and are protected. Reporting unsafe delivery conditions also constitutes protected activity as does reporting excess fatigue. However, under the facts of this case Complainant had no objective basis for complaining about excess fatigue given the length of time between scheduled deliveries.

   Concerning the issue of adverse employment actions the record clearly shows Complainant being warned on repeated occasions, suspended, and eventually discharge. However, other than timing there is no nexus or connection between adverse employment actions and any protected activity. Respondent warned Claimant on April 28, 1999 for cursing over the radio. On the same day it also warned McDonald because of similar misconduct. Further, Respondent had admonished other employees for similar conduct. On December 14, 2000, Respondent legitimately warned Complainant about truck abuse, i.e., tearing of a mud flap and allowing concrete to buildup on the truck inasmuch as he was responsible for noting and correcting such conditions.

   Concerning warnings issued on January 24, 25 and February 21, 2001, Respondent issued those warnings not because of safety complaints but because Complainant caused substantial damage to the plant's loading chute and took excessive time up to 1 hour and 15 minutes for pre and post-trip inspection which at most should have been accomplished in 30 to 45 minutes. Warnings for excessive absenteeism in April, May, and June, 2001 were not related to any objective and reasonable safety complaint such as excess fatigue considering the length of time between schedules. While Complainant may have been on scheduled vacation on May 28,29, 2001, Complainant had no legitimate reason for refusing deliveries on April 25, June 28 and 30, 2001. Respondent had just cause for warning Complainant on July 25, 2001 for failing to attend a driver mentor meeting on July 24, 2001, inasmuch as he was still at work when it was conducted and was told to attend.

   Moreover, Respondent had a legitimate reason for suspending and discharging Mason for truck abuse in allowing against employer rules build up of excess concrete. When Complainant refused on July 31, 2001 to deliver concrete to the Timber Lodge project, he provided Respondent with another legitimate basis for suspending and discharging him.

   In essence, the Court finds that Respondent had ample justification for warning, suspending and discharging Complainant and that no discipline imposed on Complainant had anything to do with protected activity. Accordingly, the Court finds no merit to Mason's complaint and recommends dismissal of such.

      CLEMENT J. KENNINGTON
      ADMINISTRATIVE LAW JUDGE

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded by the Administrative Review Board, U. S. Department of Labor, Room S-4309, 200 Constitution Ave., NW, Washington, D.C. 20210 See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978(1996).