Airgas USA, LLC v. Nat'l Labor Relations Bd.

916 F.3d 555 (2019) United States Court of Appeals for the Sixth Circuit 2019-02-21

petition for review and cross-application for enforcement of NLRB order finding employer committed § 8(a)(4) and § 8(a)(1) retaliatory discipline; enforcement granted and petition denied (result: claimant-won)

Facts

  1. 7 Same action absent unlawful motive not proved
    Then, in late June, Airgas suspended Rottinghouse for three days for completing DOT paperwork after clocking out.
  2. 7 Same action absent unlawful motive not proved
    If the employer's proffered justification is determined to be pretextual, the Board need not consider it.
  3. 7 Same action absent unlawful motive not proved
    The first time Froslear mentioned the prior violation was the September 23 grievance meeting.
  4. 7 Same action absent unlawful motive not proved
    Froslear instead read Article 22 of the Collective Bargaining Agreement-in essence, responding that because Article 22 does not mention verbal warnings, a written warning was appropriate for any infraction.
  5. 7 Same action absent unlawful motive not proved
    The Board's finding of pretext was therefore supported by substantial evidence, and it was not obligated to consider the justification any further.
  6. 8 Filed charges or given testimony satisfied conceded
    Rottinghouse, alleging the suspension was further retaliation, filed a charge on July 7.
  7. 8 Filed charges or given testimony satisfied conceded
    Airgas does not dispute the Board's conclusion that the first two factors are satisfied.
  8. 8 Filed charges or given testimony satisfied conceded
    Rottinghouse filed two charges in the months leading up to the August written warning, and Froslear provided an affidavit regarding the first charge in July.
  9. 9 Discharge or other discrimination for Board participation satisfied proved
    The cylinders in Rottinghouse's truck, though secured with two straps, were not nested properly and leaned slightly against the truck railing.
  10. 9 Discharge or other discrimination for Board participation satisfied proved
    The language of § 8(a)(4) encompasses disproportionate or otherwise retaliatory discipline.
  11. 9 Discharge or other discrimination for Board participation satisfied proved
    Under the facts accepted by the ALJ and the Board, Froslear had two opportunities to instruct Rottinghouse to fix the problem, but he said nothing.
  12. 9 Discharge or other discrimination for Board participation satisfied proved
    Although Froslear knew that Rottinghouse had, he twice failed to answer MacBride's question directly and then requested "the strongest language about load securement that drivers are trained to."
  13. 9 Discharge or other discrimination for Board participation satisfied proved
    Rottinghouse received his written warning on August 6, just under a month after he filed a charge with the Board.
  14. 9 Discharge or other discrimination for Board participation satisfied proved
    The General Counsel's second example involves Edger Reed, who received verbal counseling for talking on the phone while driving.
  15. 9 Discharge or other discrimination for Board participation satisfied proved
    In other words, substantial evidence supports the Board's decision that Airgas "acted as it did on the basis of anti-union animus."