Airgas USA v. NLRB ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0015n.06
Nos. 18-1685/1706
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jan 14, 2019
DEBORAH S. HUNT, Clerk
AIRGAS USA, LLC, )
)
Petitioner/Cross-Respondent, ) ON PETITION FOR REVIEW
) AND CROSS-APPLICATION
v. ) FOR ENFORCEMENT OF AN
) ORDER OF THE NATIONAL
NATIONAL LABOR RELATIONS BOARD, ) LABOR RELATIONS BOARD
)
Respondent/Cross-Petitioner. ) OPINION
)
BEFORE: GIBBONS, ROGERS, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Steven Wayne Rottinghouse, Jr., filed charges
alleging unfair labor practices by his employer, Airgas USA. He claims that because he filed those
charges, managers of the plant where he worked discriminated against him by denying him $337 in
holiday pay in violation of § 8(a)(4) of the National Labor Relations Act (NLRA or the Act),
29 U.S.C. § 158(a)(4). An administrative law judge (ALJ) agreed, concluding that statements by
Airgas managers evidenced animus against Rottinghouse’s charge-filing activity and that Airgas’s
proffered justification for the denial of pay was pretextual. The National Labor Relations Board
(NLRB or the Board) affirmed and adopted the order. Airgas petitions for review of that decision,
and the General Counsel of the Board cross-petitions for enforcement of the order on
Rottinghouse’s behalf. Because the Board’s conclusions were supported by substantial evidence,
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we GRANT the General Counsel’s application for enforcement and DENY Airgas’s petition for
review.
I. BACKGROUND
Rottinghouse began working as a driver at Airgas’s Cincinnati plant in September 2010.
Beginning in 2013, Rottinghouse filed sequential charges with the NLRB, first alleging unfair
labor practices at the plant and then describing management retaliation against him for pursuing
those charges. The instance of alleged retaliation at issue here involves the 2016 Thanksgiving
holiday—normally a two-day paid holiday under the terms of the Collective Bargaining
Agreement (CBA).
During his shift on November 22, the Tuesday before Thanksgiving, Rottinghouse learned
that his uncle, his stepfather’s brother, had died. He told his supervisor, Todd Allender, about the
death and that he would keep Allender informed. That night, Rottinghouse and his family decided
to clean out his deceased uncle’s apartment the next day to avoid paying December rent. Late
Tuesday evening, Rottinghouse left Allender a voicemail message stating that he would take a
personal day the next day, the Wednesday before Thanksgiving. The CBA provides for five paid
personal days per year, which an employee may use by “call[ing] in at least one hour prior to the
start of his shift.” There is no dispute that Rottinghouse made his request in a timely fashion and
in the correct manner. That Saturday, Rottinghouse learned that the memorial service had been
scheduled for Monday and left another voicemail message with Allender, this time stating that he
would take a bereavement day on Monday. The CBA allows for one day of bereavement leave
(also called “funeral leave”) upon the death of a family member not listed in the company
bereavement leave policy, such as aunts and uncles.
About two weeks later, Rottinghouse learned that he had not been paid for the two-day
Thanksgiving holiday or the bereavement day. Concerned, he located Clyde Froslear, the
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operations manager who oversees the Cincinnati plant and certain other Airgas facilities.
According to Rottinghouse, when he asked Froslear about the missing holiday pay, Froslear “very
vaguely, kind of like he didn’t know what was going on, said [that Rottinghouse] didn’t work the
day before, or something like that.” Rottinghouse then brought his concern to Dave Luehrmann,
who oversees payroll. Luehrmann is the highest ranking employee who is permanently stationed
at the Cincinnati plant; he falls between Allender and Froslear in the management hierarchy. When
Luehrmann stood by the decision not to pay Rottinghouse for the holiday, Rottinghouse filed a set
of grievances and a charge with the NLRB.
A few days later, Rottinghouse and the union steward met with Froslear, Luehrmann, and
an Airgas vice president. The managers decided that Rottinghouse should have been paid for the
bereavement day but not for the two-day Thanksgiving holiday. Froslear explained that
Rottinghouse had not received holiday pay because he did not work the day before the holiday.
Froslear cited the CBA provision regarding pay for scheduled holidays, which states that an
employee “must work the regularly scheduled work day[s] that immediately precede and follow
the holiday, except in cases of proven illness or injury substantiated by a doctor’s statement.”
Rottinghouse responded that the company’s “past practice” has been to pay employees who use a
personal day before a holiday, giving several examples. Froslear did not budge.
Meanwhile, Rottinghouse’s charge with the NLRB remained pending. During his
testimony before the ALJ about the matter, he described two other interactions with management
during which Froslear commented on NLRB charges filed against Airgas. First, in April 2015,
Froslear came to a regular morning safety meeting attended by Rottinghouse and other employees
and announced that, going forward, employees would receive write-ups, rather than verbal
warnings, for minor infractions such as taking too long at breaks. Froslear explained that Airgas’s
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corporate headquarters had requested this new policy “because there [were] NLRB charges.”
Although Rottinghouse was not mentioned by name, he had recently filed a charge with the Board.
Second, in January 2017, Rottinghouse met with Froslear, Luehrmann, and the union steward
because he had called out for a personal day 45 minutes before his shift began, thereby providing
less than the hour of notice specified in the CBA. Rottinghouse was frustrated and asked why his
supervisors never talked to him about what was going on before issuing written discipline. Froslear
responded, “it’s not like you’ve ever come and talked to us before you filed all these NLRB
charges.”
After considering these statements by Froslear and evidence showing that other employees
were not denied holiday pay for taking personal days adjacent to a paid holiday, the ALJ concluded
that Airgas’s “denial of holiday pay for Rottinghouse was in retaliation [for] his activity in filing
charges with the Board and violated Section 8(a)(4) of the Act,” and ordered Airgas to pay
Rottinghouse the $337 he was owed for the two-day holiday. The NLRB affirmed the ALJ’s ruling
and adopted the order with minor corrections. Airgas petitions for review, and the General Counsel
cross-applies for enforcement of the Board’s order.
II. ANALYSIS
On appeal, Airgas argues that the Board erroneously found that it violated § 8(a)(4) of the
NLRA. Airgas contends that it withheld pay from Rottinghouse not in retaliation for his charge-
filing activity but rather because he did not work the day immediately preceding the holiday, as
the plant’s CBA requires.
Section 8(a)(4) of the NLRA provides that it is an unfair labor practice for an employer “to
discharge or otherwise discriminate against an employee because he has filed charges or given
testimony under” the Act. 29 U.S.C. § 158(a)(4). This anti-retaliation provision is central to the
purposes of the NLRA because, without some protection for employees attempting to access the
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Act’s protections, the Board cannot “assure an effective administration of the Act.” In re Briggs
Mfg. Co., 75 N.L.R.B. 569, 571 (1947).
A. Standard of Review
Both the ALJ and the NLRB concluded that Airgas’s failure to pay Rottinghouse for the
two-day Thanksgiving holiday was discrimination in violation of § 8(a)(4). Our review of that
decision is limited. “Pursuant to 29 U.S.C. § 160(e), this court reviews the factual determinations
made by the NLRB under the substantial evidence standard.” NLRB v. Local 334, Laborers Int’l
Union of N. Am., 481 F.3d 875, 878–79 (6th Cir. 2007). Under that deferential standard, we must
“uphold the NLRB’s factual determinations if they are supported by such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion,” id. at 879 (citation and internal
quotation marks omitted), even if “we may have reached a different conclusion had the matter
been before us de novo,” Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 304 (6th Cir. 2012).
When credibility is at issue, our review is even more deferential: “We will overturn [credibility]
determinations only if they overstep the bounds of reason” or “are inherently unreasonable or self-
contradictory.” Caterpillar Logistics, Inc. v. NLRB, 835 F.3d 536, 542 (6th Cir. 2016) (citations
omitted).
B. The Wright Line Framework
We analyze claims of discrimination in violation of the NLRA under the burden-shifting
framework articulated in In re Wright Line, 251 N.L.R.B. 1083 (1980), and adopted by the
Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). See
FiveCAP, Inc. v. NLRB, 294 F.3d 768, 777 (6th Cir. 2002).1 To establish a prima facie case of
1
The Supreme Court subsequently overruled a footnote in Transportation Management that interpreted a provision
of the Administrative Procedure Act (APA). See Dir. v. Greenwich Collieries, 512 U.S. 267, 277–78 (1994). In so
doing, the Court left intact the holding of Transportation Management, explaining that the Wright Line test was
consistent with the APA “because the NLRB first required the employee to persuade it that antiunion sentiment
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discrimination under Wright Line, “the General Counsel must demonstrate that (1) the employee
was engaged in protected activity; (2) that the employer knew of the employee’s protected activity;
and (3) that the employer acted as it did on the basis of anti-union animus.” Id.; see also Conley
v. NLRB, 520 F.3d 629, 642 (6th Cir. 2008) (per curiam).2 Before the holiday at issue, Froslear
and Luehrmann had been present at a Board hearing where Rottinghouse testified. Airgas
therefore does not dispute that the first two factors are satisfied here. We therefore focus on the
third factor, animus.
Animus may be “inferred from circumstantial as well as direct evidence.” W.F. Bolin Co.
v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995). Direct evidence, such as an employer’s announcement
of “an intent to discharge or otherwise retaliate against an employee for engaging in protected
activity,” is “especially persuasive.” Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 297 (6th
Cir. 1985) (per curiam). But such direct statements are not required. Animus may be inferred
from a variety of purely circumstantial factors, including:
the company’s expressed hostility towards unionization combined with knowledge
of the employees’ union activities; inconsistencies between the proffered reason for
[the employment action] and other actions of the employer; disparate treatment of
certain employees compared to other employees with similar work records or
offenses; a company’s deviation from past practices in implementing the [action];
and proximity in time between the employees’ union activities and [the action].
FiveCAP, 294 F.3d at 778 (quoting W.F. Bolin, 70 F.3d at 871).
contributed to the employer’s decision [and o]nly then did the NLRB place the burden of persuasion on the employer
as to its affirmative defense.” Id. at 278; see also Arrow Elec. Co. v. NLRB, 155 F.3d 762, 766 & n.5 (6th Cir. 1998).
2
Airgas argues that the prima facie case of discrimination under Wright Line includes a fourth factor, “a link, or nexus,
between the employees’ protected activity and the adverse employment action.” Newcor Bay City Div. of Newcor,
Inc., 351 N.L.R.B. 1034, 1036 (2007). But in the very case Airgas cites, in which an ALJ referred to four factors, the
Board corrected the mistake, restating the prima facie case under Wright Line with the standard three factors. Id. at
1034 n.4. Since Newcor was decided, we have repeatedly and consistently described the prima facie case as containing
only three factors. See, e.g., McKinney ex rel. NLRB v. Ozburn-Hessey Logistics, LLC, 875 F.3d 333, 340 (6th Cir.
2017); NLRB v. Jag Healthcare, Inc., 665 F. App’x 443, 453 (6th Cir. 2016); Conley v. NLRB, 520 F.3d 629, 642 (6th
Cir. 2008).
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If the General Counsel establishes a prima facie case under Wright Line’s three-prong test,
“the burden shifts to the employer to prove by a preponderance of the evidence that the employee
would have been [subject to the employment action] for permissible reasons even if he had not
been involved in activity protected by the [NLRA].” NLRB v. Overseas Motor, Inc., 721 F.2d 570,
571 (6th Cir. 1983) (citing Transp. Mgmt. Corp., 462 U.S. 393). If, however, “the employer’s
proffered justification for the decision is determined to be pretextual, the Board is not obligated to
consider whether the employer would have taken the same decision regardless of the employee’s
union activity.” Ctr. Constr. Co. v. NLRB, 482 F.3d 425, 435–36 (6th Cir. 2007).
1. Evidence of Animus in the Prima Facie Case
The General Counsel presented direct evidence of animus in the form of two statements by
Froslear, the senior Airgas manager who oversees the Cincinnati plant. In April 2015, more than
a year before the disputed Thanksgiving holiday, Froslear announced that, due to the filing of
NLRB charges, employees would now receive write-ups instead of verbal warnings for certain
minor infractions. Second, approximately six weeks after the disputed holiday, when Rottinghouse
asked why he always received write-ups instead of verbal warnings, Froslear responded, “it’s not
like you’ve ever come and talked to us before you filed all these NLRB charges.”
Airgas primarily argues that these statements are irrelevant because Froslear was not the
manager responsible for the holiday pay determination. (Managing payroll is usually one of
Luehrmann’s duties, not Froslear’s.) This argument ignores record evidence demonstrating that
Froslear was intimately involved in Airgas’s ratification of the pay determination. Immediately
after Rottinghouse learned that he had not been paid for the holiday, he spoke to Froslear about
the problem—and Froslear already knew what had happened and why. Then, at a follow-up
meeting a few days later, Froslear personally explained why Airgas refused to pay Rottinghouse
for the holiday.
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Even if Froslear had not been personally involved, we could still consider these statements
that he made in the presence of lower management representatives, without contradiction or
repudiation from other Airgas representatives then or since, and—in the case of the April 2015
comment—on behalf of corporate headquarters. In the labor context, “it is eminently reasonable
to assume that high-level corporate managers speak on behalf of the company when they express
anti-union animus.” NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 782 (8th Cir. 2013)
(quoting Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 423 (D.C. Cir. 1996)). Froslear’s
statements expressly linked management’s escalation in discipline to an employee’s decision to
file charges before the NLRB—in one case, Airgas abolished verbal warnings for a class of
violations, and in the other, it chose to impose written discipline instead of a verbal warning.
Airgas does not dispute that Froslear made these statements, or that he is a high-level manager
capable of speaking on behalf of the company. Both statements are therefore highly relevant in
determining whether the Board had substantial evidence to find that Airgas acted out of animus.
Airgas relies on In re Sysco Food Services of Cleveland, 347 N.L.R.B. 1024 (2006), to
argue that the statements merely evidence confusion or frustration. In Sysco, the Board adopted
the ALJ’s determination that certain employer statements—such as “if you’re filing all these
grievances and you’re so unhappy here why don’t you find work somewhere else”—were evidence
of anti-union animus. Id. at 1026, 1035. Those problematic statements, however, were
distinguished from “shop talk”—such as “not another one” and “oh geez what did I do now”—
that did not add to the General Counsel’s case. Id. at 1035 n.26 (brackets omitted). Froslear’s
statements are not the unconsidered outbursts of a manager taken by surprise by a new complaint.
The 2017 comment justifies disciplining Rottinghouse more harshly by referring to his past NLRB
charges. And in the 2015 meeting, Froslear eliminated a milder category of discipline at the
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request of corporate headquarters and in response to NLRB charges. This is precisely what the
Act forbids when it disallows “discriminat[ing] against an employee because he has filed charges.”
29 U.S.C. § 158(a)(4).
Finally, Airgas argues in passing that the April 2015 statement should be discounted
because it preceded the Thanksgiving holiday by nearly a year and a half. These two
discriminatory comments bookend the holiday at issue, with one occurring well before
Thanksgiving 2016 and the other shortly after. The Board could reasonably conclude that, rather
than dispelling the inference of animus, the passage of time indicates that Froslear—and therefore
Airgas—consistently held this discriminatory point of view for the entire period at issue in this
case. See In re United Parcel Serv., 340 N.L.R.B. 776, 777 n.10 (2003) (explaining that a
statement made six months before discharge “is not too remote in time because an employer might
wait for a pretextual opportunity to discipline an employee” and also relying on statements made
one and two years prior “despite the passage of time” because the same supervisor was involved).
In sum, Froslear’s statements are direct, relevant evidence that “a reasonable mind might
accept as adequate to support a conclusion” that Airgas was motivated by animus. Local 334, 481
F.3d at 879 (citation omitted). Because “the NLRB’s inference of unlawful motivation in
dismissing an employee is entitled to affirmance if it is supported by substantial evidence,”
Overseas Motor, 721 F.2d at 572, we may not disturb the Board’s decision that the General
Counsel made out a prima facie case of discrimination.
2. Airgas’s Nondiscriminatory Reason
Because substantial evidence supports the Board’s decision that Airgas “acted as it did on
the basis of anti-union animus,” FiveCAP, 294 F.3d at 777, the burden shifts to Airgas “to prove
that it would have made the same employment decision regardless” of Rottinghouse’s protected
activity. Ctr. Constr. Co., 482 F.3d at 435. Airgas contends that Rottinghouse was not paid for
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the Thanksgiving holiday because, under the CBA, an employee may only receive pay for
scheduled holidays if he “work[s] the regularly scheduled work day[s] that immediately precede
and follow the holiday, except in cases of proven illness or injury substantiated by a doctor’s
statement.” According to Airgas, Rottinghouse was ineligible for holiday pay because he took a
personal day on the Wednesday before Thanksgiving without providing a doctor’s note. The
General Counsel contends that this reason is pretextual because other employees who took
personal days adjacent to holidays did receive holiday pay.
Compliance with a CBA could be a valid, nondiscriminatory reason for taking an
employment action. See, e.g., Stanley v. BP Prods. N. Am., No. 18-3303, --- F. App’x ---, 2018
U.S. App. LEXIS 34073, at *13 (6th Cir. Dec. 4, 2018) (“[The employer’s] adherence to the
requirements laid out in the CBA tends to show that its reasons for not returning [the employee]
to work were not a pretext for disability discrimination.”). It is undisputed, however, that it was
Airgas’s practice to recognize an exception to the language of the CBA. Below, Airgas stipulated
that “a scheduled personal day does not result in the loss of holiday pay”—even though scheduled
personal days are not mentioned in the portion of the CBA governing holiday pay. The General
Counsel argues that the in-practice exception actually covered any paid personal day, as long as
the employee notified Airgas at least an hour before the start of the work day. Airgas disagrees,
arguing the exception has never applied to unscheduled personal days.
The Board was therefore called upon to resolve a factual dispute about the scope of the in-
practice exception to the CBA. The ALJ determined that the distinction between scheduled and
unscheduled personal days was pretextual; the Board likewise found “no support” for the
distinction.
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Rottinghouse testified that though Airgas has sometimes permitted employees to schedule
personal days in advance, a company vice president told employees that “vacation days are over
here, personal days are over here. Completely separate. These you schedule. These you don’t.”
That delineated approach, with scheduled vacation days and unscheduled personal days, matches
the text of the CBA. According to the CBA, “an employee must call in at least one hour prior to
the start of his shift” to use a personal day, while “vacation days must be scheduled in advance.”
The decision of the Board and the ALJ to discredit Airgas’s contradictory testimony about
scheduled personal days is therefore supported by evidence in the record and entitled to affirmance.
See Local 334, 481 F.3d at 879.
Moreover, even assuming that Airgas distinguished between scheduled and unscheduled
personal days, other employees who (like Rottinghouse) took unscheduled personal days adjacent
to holidays still received holiday pay (unlike Rottinghouse). For example, one employee took an
unscheduled personal day on the first working day after New Year’s Day in 2016, and Airgas paid
him for the holiday. Another employee took an unscheduled personal day the Monday after
Thanksgiving 2016, and Airgas paid him for the holiday—the very same holiday for which it
refused to pay Rottinghouse. Indeed, the Board concluded that “there is no evidence that prior to
this incident [Airgas] had ever denied an employee holiday pay when he or she took a personal
day immediately before or after the holiday.” Airgas has not identified any counterexample that
would disprove that conclusion. The only example Airgas points to is readily distinguishable, as
the referenced employee took unpaid personal days for the three days before Thanksgiving as well
as the Monday after.
There was therefore substantial evidence to support the Board’s determination that Airgas’s
stated nondiscriminatory reason for its actions is pretextual. In light of that determination, the
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Board was not obligated to consider the justification any further. See Ctr. Constr. Co., 482 F.3d
at 435–36. To the extent the Board did consider the justification, it could reasonably conclude that
Airgas’s disparate treatment of Rottinghouse as compared to his coworkers only buttressed the
conclusion that Airgas refused to pay Rottinghouse for the Thanksgiving holiday because of
impermissible animus. See FiveCAP, 294 F.3d at 778.
III. CONCLUSION
For the foregoing reasons, we GRANT the General Counsel’s application for enforcement
and DENY Airgas’s petition for review.
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