.
DUMBARTON QUARRY ASSOCIATES
May 18, 1998
WEST 97-286-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 18, 1998
ANTHONY SAAB, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 97-286-DM
v. : Dumbarton Quarry
:
DUMBARTON QUARRY ASSOCIATES, :
Respondent : Mine I.D. 04-02380
DECISION
Appearances: Paul H. Melbostad, Esq., Goldstein, Gellman,
Melbostad, Gibson & Harris, San Francisco,
California, for Complainant; Robert D. Peterson,
Esq., Rocklin, California, for Respondent.
Before: Judge Manning
This case is before me on a complaint of discrimination
brought by Anthony Saab against Dumbarton Quarry Associates under
section 105(c)(3) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. �815(c)(3) (the "Mine Act"). The complaint
alleges that Dumbarton Quarry Associates ("Dumbarton") terminated
Mr. Saab from his employment in violation of section 105(c). A
hearing in this case was held in Oakland, California. For the
reasons set forth below, the complaint of discrimination is
dismissed.
I. SUMMARY OF THE EVIDENCE
A. Anthony Saab
Dumbarton operates a gravel pit that makes aggregate and
asphalt in Fremont, California. Anthony Saab started working at
the Dumbarton Quarry on June 20, 1995. He was hired from
Teamsters Local 291 to drive a haul pack and a water truck.
Members of the Teamsters union drive haul packs and water trucks
at the quarry. Members of the Operating Engineers union operate
all other equipment, including the loaders. A haul pack is a
large off-road dump truck that is used to transport material from
the pit to the crusher. A loader operator dumps blasted rock at
the pit into the haul pack and the haul-pack operator drives the
harvested rock up to the crusher. The operators of water trucks
drive along the roadways at the quarry spraying water to suppress
dust.
Mr. Saab testified that he made a number of safety
complaints while he was employed at the quarry. He stated that
he made his first complaint in the summer of 1995. (Tr. 10).[1]
He complained that a loader operator was "playing around" by
slamming his haul pack with the bucket of the loader. Id.
On or about October 22, 1996, Mr. Saab sent a letter to Clay
Buckley, the production operations manager at the quarry,
complaining about the attitude of one of the loader operators,
Steve Hamblin. (Tr. 14; Ex. C-1). Mr. Saab stated that Mr.
Hamblin would pick up his haul pack with the bucket of the loader
and throw it down. The company's safety officer spoke to
everyone at the pit after the letter was sent and told Mr. Saab
that it would never happen again. (Tr. 14, 16). Mr. Saab
testified that he was concerned about his safety because his
shoulder was thrown against the door of the haul pack. He also
stated that Mr. Hamblin's actions damaged the haul pack. (Tr.
15, 58).
On March 5, 1997, Mr. Saab called the Department of Labor's
Mine Safety and Health Administration ("MSHA"). Mr. Saab stated
that he complained about the highwalls in the pit and the berms
along the roads. (Tr. 20). He stated that he was particularly
concerned about the lack of berms on some of the haul roads.
(Tr. 21, 58). The roads were slippery from the water truck and
the brakes on his haul pack would sometimes lock up. He wanted
berms to be strong enough and high enough to stop a haul pack
from going over the side. (Tr. 24). He testified that because
the pit was getting deeper, the highwalls were about 100 feet
high and nearly vertical. He believes that he came within ten
feet of this highwall when he drove a haul pack. (Tr. 23).
MSHA inspected the quarry on March 10-12, 1997, and the
inspection report contains a reference to Mr. Saab's call. (Tr.
25; Ex. C-2). MSHA issued 17 citations at the quarry during this
inspection. One citation concerned conditions at the highwall
and one citation was issued due to the lack of berms on a
particular roadway. (Ex. C-2). Mr. Saab also raised safety
issues about mobile equipment at the quarry with the MSHA
inspectors at the time of their inspection. (Tr. 31). Some
citations were issued for conditions on this equipment, such as
inoperable windshield wipers, faulty lights, and inoperable
horns. Dumbarton abated the highwall citation by building berms
along the highwall to keep everyone away and by having an
independent contractor clean the benches on the highwall with a
clam bucket crane. (Tr. 37).
On March 18, the day that the crane cleaned the highwall,
Mr. Saab and Larry Meyer were laid off for the day. (Tr. 38).
Mr. Saab testified that this one-day layoff was in retaliation
for his call to MSHA. (Tr. 43). He bases this conclusion on the
fact that no other employees were laid off on that day. (Tr. 44,
II 52-53). He also testified that his hours were reduced from 10
hours a day to about 8 hours a day when he returned to the
quarry. (Tr. 44-47). Mr. Meyer testified that it would have
been unsafe for employees to work under that highwall on March 18
because the highwall was being cleaned. (Tr. II 113). Meyer
complained about his layoff because he was senior to Randy
Huevel, who operated the water truck that day. (Tr. II 114-15).
Buckley replied that he had the authority to determine what
equipment each employee operated. Since it was only a one-day
layoff, Meyer was not able to bump Huevel.
Mr. Saab alleges that on March 25, Mike Grant, an
independent contractor, approached him at the end of the shift
and called him a black sheep for contacting MSHA. (Tr. 47). A
heated discussion followed. Saab testified that as he walked to
his car to leave the quarry, a rock flew by his head. He
believes that Mr. Grant threw the rock as a result of his safety
complaints to MSHA. (Tr. 47-48, 51). Mr. Saab testified that,
although Mr. Grant is an independent contractor who performs
maintenance work on equipment at the quarry, his actions should
be attributed to Dumbarton management. (Tr. 48, II 30, II 54).
He stated that Mr. Grant and Mr. Buckley worked closely together
and that Grant was treated as if he were an employee. Id. Mr.
Saab immediately proceeded to Mr. Buckley's office and asked him
to call the police. Buckley refused to do so, but he went
outside and talked to Mr. Grant about the incident. Grant denied
throwing a rock and stated that a rock must have fallen off a
moving truck. (Tr. 49, II 28). Saab testified that there were
no trucks around. (Tr. 49). Mr. Buckley prepared an incident
report with the safety officer, Mike Oliveira. The report states
that due to the lack of eyewitnesses, "the event could not be
proven as stated by Saab." (Ex. C-4).
On March 26, Saab videotaped Grant at work to try to get him
to admit that he threw the rock. (Tr. 60; Ex. C-5). Grant did
not make any statements concerning the incident, but he told Saab
the he better start looking for a job. Id. Mr. Saab interprets
this statement to mean that Grant knew that he was going to be
laid off the following week. He frequently observed Grant going
into Buckley's office during this period. (Tr. 61).
The next incident involving Mr. Saab occurred on April 3,
1997. He testified that he was driving a haul pack on that day
and someone in a van took pictures of him. (Tr. 53, II 32).
This occurred about a week after Mr. Saab videotaped Mike Grant.
Id. Saab testified that he had never observed anyone taking
pictures of employees at the quarry before and he considered it
to be harassment in retaliation for his complaints to MSHA. (Tr.
54, II 32).
On April 4, Clay Buckley told Mr. Saab that he was laid off
effective that day. At that time, Mr. Saab was driving the haul
pack. He was told that Randy Huevel, another Teamster at the
quarry, was bumping him off the haul pack onto the water
truck.[2] (Tr. 61). Huevel had more seniority under the
Teamsters Agreement than Saab. Saab was told that the water
truck had broken down and would not be usable for a few weeks.
(Tr. 63). Saab understood that once the water truck was
repaired, he would be called back to work. (Tr. 64). The water
truck was never repaired and Saab was not called back on a
permanent basis. (Tr. 79-80). He was given the opportunity to
work a few days in June, but Mr. Saab turned these offers down
because he was employed elsewhere. (Tr. 77-81; Exs. C-8, C-9).
Mr. Saab believes that, although the pump on the water truck
was leaking, it was still serviceable and could have been used at
the mine. (Tr. 64, II 48, II 56). He believes that Dumbarton
stopped using the water truck so that it could lay him off. (Tr.
II 47-50). Dumbarton hired an independent contractor to water
the roads starting on April 4. This contractor used his own
water truck. This contractor was at the mine on April 4 watering
the roadways when Saab arrived at work on April 4 and was advised
that he was laid off. (Tr. 65). He was told that the quarry's
water truck broke on the afternoon of April 3 and that the
contractor was hired at that time.
Mr. Saab believes that Dumbarton overstated the cost of
repairing the water truck. He points to the repair estimate
prepared by MCG Heavy Equipment, Inc. (Tr. 66-70; Ex. C-6). MCG
Heavy Equipment, Inc., is owned by Mike Grant, the independent
contractor that maintains equipment at the quarry. The repair
estimate states that it would cost almost $16,000 to repair the
water truck. Saab believes that only two of these items relate
to the water pump and the estimate for those repairs is $1,850.
Id.
Mr. Saab also believes that the cost to the company of using
an independent contractor to water the roads was greater than the
cost of doing this work with a Dumbarton employee using a company
truck or a rental truck. (Tr. 71-72, II 62; Ex. C-7). He
testified that the company had another water truck at the quarry
that he could have used. (Tr. 74-75). He stated that this truck
had been at the quarry for over a year. This truck was shipped
from the quarry on April 4, 1997, and taken to the Curtner
Quarry. (Tr. II 47). Mr. Saab contends that although this truck
leaked water and needed other repairs, he could have used it when
the primary water truck broke down. Id. He testified that no
other equipment was shipped out that day.
Mr. Saab believes that Dumbarton used a provision in the
Teamsters' agreement to terminate him from his employment, but
that the real reason for his termination was his protected
activity. The labor agreement provides that an employer may
contract out work if it does not have the equipment available to
perform that work. (Tr. II 58; Ex. R-6). He contends that
Dumbarton removed the spare water truck from the property and
took the main water truck out of service so that it could
contract out the work of watering the roadways. (Tr. II 58-59).
Because Mr. Buckley knew that Mr. Saab had the least seniority
among the Teamsters working at the quarry, Buckley also knew that
Saab would no longer have a job at the quarry if it contracted
out this work.
B. Dumbarton Quarry Associates
Mr. Buckley has worked at the quarry since 1982 and has been
production operations manager since 1992. Mr. Buckley testified
that MSHA inspected the quarry March 10-12, 1997, and that the
quarry was issued a number of citations, which was unusual. (Tr.
II 64-65). One of the citations required the quarry to clean
off benches along the highwall. (Tr. 65-75). Since there was no
direct access to the benches, a crane was brought in to clean
them. A berm was installed under the highwall so that if any
material fell, it would not endanger employees. He made
arrangements to have a crane and a crane operator come to the
quarry to clean the benches. Mr. Buckley testified that on March
18 he did not want anyone working in the pit while the crane was
cleaning the highwall, so the haul pack drivers were laid off for
the day and the loader operator worked at the stockpile rather
than in the pit. (Tr. II 69). Only the haul pack drivers were
not needed that day. The water truck and loader operators were
needed, so they were not laid off. Buckley testified that he was
not aware that Saab had called MSHA at the time of this layoff.
(Tr. II 78).
Mr. Buckley testified that he investigated the alleged rock
throwing incident described above and he did not receive any
confirmation that a rock was thrown. He testified that Mr.
Huevel told him that he was in the water truck at the time and
saw Saab get out of the truck, shake his finger at Huevel, flip
Huevel off, and get into his car. (Tr. II 77). Huevel told
Buckley that he did not see Grant throw a rock. Id.
Mr. Buckley testified that the quarry operates under a
conditional use permit issued by the City of Fremont. On April
2, 1997, Buckley received a memorandum from Dumbarton's parent
company, DeSilva Gates, that contained a checklist of items that
were to be completed in order to comply with the quarry's
renewed conditional use permit. (Tr. II 95). One of the items
in the memorandum states that all excess equipment will be
removed from the site by August 1. (Tr. II 82; Ex. R-5).
Buckley stated that when he received this fax, he immediately
made arrangements to have the extra water truck moved to the
Curtner Quarry, owned by DeSilva Gates. (Tr. II 82). The extra
water truck was owned by DeSilva Gates and had originally been at
the Curtner Quarry. It was shipped out on April 4. Buckley
tried to ship a third water truck that had a cracked frame to the
Curtner Quarry, but that quarry did not want it and so it was
junked.
Mr. Buckley testified that at about noon on April 3, Huevel
told him that the water truck was not operating properly and he
did not know if he could use it much longer. Buckley immediately
called a broker to see if he could get another water truck. At
about 3:00 p.m., the water truck "just seized [up] and wouldn't
operate any more." (Tr. II 85). He made arrangements with an
independent contractor to provide watering services starting on
April 4. He obtained the name of the contractor from DeSilva
Gates, who used the same contractor. Id.
Mr. Buckley then asked Mr. Grant to look at the truck the
next morning to see what was needed to return it to service. He
also advised Mr. Huevel that there would be no work for him at
the quarry at least until the water truck was repaired. Id.
Huevel exercised his right under the Teamsters Agreement to bump
Mr. Saab from a haul pack to the water truck. (Tr. II 107).
Saab was not at the quarry at this time.
Mr. Grant prepared an estimate of the cost of returning the
water truck to service. (Ex. C-6). Buckley testified that Grant
advised him that there were a number of problems with the water
truck, including a frame that was starting to crack. (Tr. II
87). During the MSHA inspection, Dumbarton was advised that
cracked frames would be cited and that anything that was
installed by the manufacturer of equipment had to be operational.
Id. He testified that many items on the water truck were not
operational. The estimate prepared by Mr. Grant indicated that
it would cost about $16,000 to repair the truck and bring it into
compliance with MSHA standards. (Tr. II 127-28; Ex. C-6).
Buckley testified that he called DeSilva Gates' chief financial
officer about the cost and was advised not to repair the water
truck. (Tr. II 88). From that time on Dumbarton used an
independent contractor to water the roads in the quarry. All of
Dumbarton's sister companies were already using independent
contractors to wet down roadways. (Tr. II 91, II 112).
Buckley also testified that he did not recognize the van in
which Saab saw someone taking pictures of his truck at the quarry
on April 3. (Tr. II 93-94). He does not know who took the
pictures, but he testified that a representative of a tire
manufacturing company was on the property around that time and
that city and state officials often come on the property. He
stated that any one of these people may have taken pictures. Id.
Finally, Mr. Buckley testified that Dumbarton did not take
any retaliatory actions against Mr. Saab. (Tr. II 111-12). He
stated that Saab was laid off because he had the least seniority.
Buckley stated that if "Mr. Saab had been one step up on the
seniority ladder we wouldn't be [at this hearing.]" Id.
II. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the Mine
Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act"
recognizing that, "if miners are to be encouraged to be active in
matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of
their participation." S. Rep. No. 181, 95th Cong., 1st Sess. 35
(1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977 at 623 (1978).
A miner alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
proving that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that
activity. Secretary of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980),
rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary
of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981). The mine operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
the protected activity. Pasula, 2 FMSHRC at 2799-800. If the
mine operator cannot rebut the prima facie case in this manner,
it nevertheless may defend by proving that it was also motivated
by the miner's unprotected activity and would have taken the
adverse action for the unprotected activity alone. Id.;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
B. Did Anthony Saab engage in protected activity?
I find that Mr. Saab engaged in activity that is protected
by section 105(c) of the Mine Act when he called MSHA on March 5,
1997, and when he spoke with MSHA inspectors during their
inspection. A miner has a protected right to call MSHA to report
safety problems and, in general, to talk to MSHA inspectors
during their inspection.
C. Did Anthony Saab present evidence that his
termination was motivated in any part by the protected activity?
In determining whether a mine operator's adverse action was
motivated by the miner's protected activity, the judge must bear
in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is
indirect." Secretary of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and
in many cases the discrimination can be proven only by the use of
circumstantial evidence." Id. (citation omitted). Anthony Saab
presented evidence that his termination was motivated at least in
part by his protected activity.
A mine operator's knowledge of the protected activity is one
factor to evaluate when determining whether an adverse action was
motivated by protected activity. Mr. Saab presented evidence
that employees at the mine knew that he called MSHA and
precipitated the March inspection. Mr. Saab presented evidence
that an inference should be drawn that Dumbarton management knew
that he complained to MSHA about safety conditions at the mine
and that the March inspection was a direct result of his
complaints.
Another factor is the mine operator's hostility toward the
protected activity, often referred to as "animus." It is clear
some hostility was shown by Mr. Grant and other hourly employees.
Mr. Saab did not present any direct evidence of animus by
management toward employees who raise safety concerns with MSHA.
Mr. Saab presented evidence that Dumbarton management took
actions against him because of his discussions with management.
These actions are described above in the summary of Mr. Saab's
testimony. Thus, I find that Saab presented sufficient evidence
of animus to warrant further analysis.
The proximity in time between the protected activity and the
adverse action is another factor to be considered. There is no
dispute that the termination of Mr. Saab occurred shortly after
the March 1997 MSHA inspection. Accordingly, I find that Mr.
Saab presented evidence that his termination was motivated at
least in part by his protected activity.
D. Did Dumbarton rebut Anthony Saab's prima facie case?
Analysis of the issues.
As stated above, a mine operator may rebut the prima facie
case by showing either that no protected activity occurred or
that the adverse action was in no part motivated by the protected
activity. I find that Dumbarton presented sufficient evidence to
rebut Mr. Saab's case. The preponderance of the evidence
presented at the hearing shows that Mr. Saab engaged in protected
activity but that his termination was not motivated by that
activity, in any part.
First, I find that Mr. Saab's lay-off for one day on March
18 was not in retaliation for his safety complaints. I credit
Mr. Buckley's testimony that he did not want anyone working in
the pit that day. Since Saab was a haul-pack operator at that
time, there was no work for him and he was laid off along with
the other haul-pack operator. I find no connection between his
complaint to MSHA and the one day layoff except that Dumbarton
had to bring a crane to the quarry in order to abate a citation
issued during the MSHA inspection. Mr. Saab was not chosen for
layoff because he complained to MSHA but because he was a
haul-pack operator. As stated above, Saab argues that he should
have been the water-truck operator on March 18. (Tr. II 18).
Mr. Buckley has the right to choose which employees operate
particular pieces of equipment. His decision to switch Mr.
Huevel to the water truck in February was unrelated to Mr. Saab's
safety complaints. Saab's contention that he should have been
allowed to "bump" Huevel off the water truck is without merit.
Huevel had more seniority than Saab and there is no evidence that
the Teamsters' Agreement grants employees that right.
The events that transpired between Messrs. Saab and Grant do
not help establish that Saab's termination was the result of his
protected activity. I find that although Buckley and Grant had a
close working relationship, there has been no showing that they
acted in collusion to harass Saab or discharge him from
employment. (Tr. II 101). If Mr. Grant did throw a rock at
Saab, he was not encouraged to do so by Mr. Buckley and Dumbarton
did not condone such conduct. Moreover, the credible evidence
casts doubt that Grant threw a rock at Saab. Saab did not see
Grant throw a rock and Huevel told Buckley that he did not see
Grant throw a rock. Under those circumstances, it was reasonable
for Buckley to refuse to call the police or take any action
against Grant.
Saab testified that he was intimidated by the fact that
someone took pictures of him on April 3. I reviewed the
videotape that Saab took of the incident. (Ex. C-5). I credit
the testimony of Buckley that he did not know about this incident
and that the pictures were probably being taken by an outsider.
There has been no showing that the picture taking had anything to
do with Saab's complaint to MSHA. Mr. Saab also alleged that his
hours were significantly reduced after he complained to MSHA. I
find that the evidence does not substantiate this claim. (Tr. II
24-25).
The primary focus of this case concerns the layoff of Mr.
Saab on April 4, 1997. Mr. Saab believes that Dumbarton
orchestrated events so that he would be laid off. He contends
that Dumbarton removed the spare water truck from the quarry,
took the primary water truck out of service, and inflated the
cost of repairing the primary water truck to justify its decision
to contract out the road-watering function. Saab believes that
Buckley and others at Dumbarton planned these events in
retaliation for his complaints to MSHA knowing that he had the
least seniority under the union contract. He also contends that
if he had been allowed to drive the water truck in March and
April, the truck would not have broken down because he took
better care of it than Huevel did.
I find that Saab's explanation of the events is not very
plausible. Saab sincerely believes that Dumbarton planned the
events in order to terminate him from his employment because of
his discussions with MSHA. Even if I construe all of Mr. Saab's
evidence in his favor, he does not paint a very convincing
picture. Such a scenario would require careful planning and
coordination among a number of persons including Buckley, Grant,
and Huevel. Buckley's testimony on the events of April 3 and 4
is more persuasive.
Buckley testified that Huevel was having significant
problems with the water truck on April 3, he asked the mechanic
to check it out, and the mechanic estimated that it would cost
about $16,000 to fix the truck and bring it into compliance with
MSHA standards. Buckley was aware that a number of citations had
been issued during the March inspection concerning mobile
equipment defects. The chief financial officer of the company
did not want to authorize such a large expenditure on an old
truck. The other water truck also needed significant repairs and
Buckley had been given instructions to remove excess equipment
from the property. Other quarries affiliated with Dumbarton were
using independent contractors to water the roads. Accordingly,
Buckley decided to use an independent contractor. Saab was let
go, not because he called MSHA, but because he had the least
seniority of the three Teamster employees at the quarry. Indeed,
Buckley testified that he did not know that Mr. Saab called MSHA
until Saab filed a grievance after his discharge. (Tr. II 78).
Buckley testified that if Saab had been senior to any other
Teamster employee, he would not have been terminated. I credit
Mr. Buckley's testimony as to the events of April 3 and 4,
1997.[3]
Saab also tried to establish that Dumbarton's decision to
use independent contractors to water the roads did not make any
economic sense. He testified as to his rate of pay and compared
it to the payments made to the contractors that were used. His
testimony was not very convincing because it was rather
simplistic and did not consider all of the costs borne by an
employer.
Based on the above, I find that the Dumbarton rebutted Mr.
Saab's prima facie case. Although the termination occurred
within a month of the MSHA inspection and at least some Dumbarton
employees knew that Saab complained to MSHA, I conclude that
Dumbarton terminated Saab from his employment for reasons that
are unrelated to his safety complaints. Mr. Saab was not
terminated for cause. He was laid off due to the lack of work.
Only two of the three Teamsters were required at the quarry after
Dumbarton decided to use a contractor to water the roads. The
Teamsters Agreement did not prohibit Dumbarton from using an
independent contractor for this function. As the employee with
the least seniority, Mr. Saab was subject to layoff.
III. ORDER
For the reasons set forth above, the complaint filed by
Anthony Saab against Dumbarton Quarry Associates under section
105(c) of the Mine Act is DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Paul H. Melbostad, Esq., Goldstein, Gellman, Melbostad,
Gibson & Harris, 100 Van Ness Avenue, 21st floor, San
Francisco, CA 94102 (Certified Mail)
Robert D. Peterson, Esq., 3300 Sunset Boulevard, Suite 110,
Rocklin, CA 95677 (Certified Mail)
/RWM
***FOOTNOTES***
[1] The two transcript volumes are not numbered
sequentially. References to Volume I are indicated by "Tr."
followed by the page number, references to Volume II are
indicated by "Tr. II" followed by the page number.
[2] It is Mr. Saab's position that he should have been
driving the water truck at that time. He testified that on
February 28, 1997, Mr. Buckley advised Saab that he was moving
him from the water truck to the haul pack and Mr. Huevel from the
haul pack to the water truck for a few days. (Tr. 62, II 57).
Apparently, Mr. Grant needed extra help moving equipment around
and Huevel was designated to provide this help because Saab had
injured his back. Id. Although Saab believed that this switch
was temporary, he was not moved back to the water truck until he
was bumped by Mr. Huevel. Mr. Saab had the least seniority among
the Teamsters at the quarry. (Tr. II 40). Mr. Saab testified
that because he took better care of the water truck than Mr.
Huevel, the water truck would not have broken down on April 3
if he had been driving it. (Tr. II 57).
[3] I also find that Mr. Saab's complaint to Mr. Buckley
about loader operator Hamblin in 1996 played no part in Mr.
Saab's termination.