Airgas USA, LLC v. Nat'l Labor Relations Bd.
916 F.3d 555
6th Cir.2019Background
- Employee Steven Rottinghouse, an Airgas truck driver with an otherwise good safety record, received a written warning on August 6, 2015 for allegedly having unsecured/leaning gas cylinders in his truck.
- Operations manager Clyde Froslear observed rattling, photographed the load from inside the plant, did not physically inspect the truck or tell Rottinghouse to fix it, but later handed Rottinghouse a written warning; Rottinghouse readjusted the load and left the yard after seeing the photo.
- Rottinghouse had filed NLRB charges in April and July 2015 alleging prior unlawful discipline by Airgas; the August warning came within a month of the July charge.
- The ALJ found the written warning to be retaliatory, citing Froslear’s inconsistent testimony, lack of a meaningful investigation, temporal proximity to protected activity, and evidence of disparate treatment compared to other employees who received verbal warnings.
- The NLRB (divided panel) adopted the ALJ’s order finding violations of § 8(a)(4) (and derivative § 8(a)(1)); Airgas petitioned for review in the Sixth Circuit and the General Counsel cross-applied for enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether written warning was unlawful retaliation under § 8(a)(4) | Rottinghouse: warning was discipline motivated by anti-union animus after he filed charges; evidence includes timing, manager’s conduct, emails, and disparate treatment | Airgas: warning was legitimate safety discipline (load insecure) and based on prior DOT violation—nonretaliatory reasons | Court: Affirmed Board—substantial evidence supports inference of animus and that Airgas’s reasons were pretextual |
| Whether Board’s credibility findings (re: manager Froslear) are supported | GC: Froslear’s testimony was inconsistent and evasive, supporting animus inference | Airgas: disputes credibility findings; contends manager acted for safety reasons | Court: Deferential review; credibility determinations reasonable and supported by record |
| Whether temporal proximity supports inference of animus | GC: discipline occurred soon after July charge—supports inference | Airgas: ties protected activity back to April, arguing longer interval negates proximity inference | Court: Proximity to the July charge is probative; timing supports inference of animus |
| Whether disparate treatment and failure to investigate support Board finding | GC: other employees received lesser (verbal) discipline for comparable or serious safety violations and Airgas failed to investigate source of rattling | Airgas: asserted comparators were distinguishable and prior violations justified discipline | Court: Board reasonably found comparators and investigative failures supported animus finding; employer’s justifications were shifting/pretextual |
Key Cases Cited
- NLRB v. Local 334, Laborers Int’l Union of N. Am., 481 F.3d 875 (6th Cir. 2007) (substantial-evidence standard for reviewing NLRB factual findings)
- Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298 (6th Cir. 2012) (appellate scope vs. de novo review distinguished)
- Caterpillar Logistics, Inc. v. NLRB, 835 F.3d 536 (6th Cir. 2016) (deference to credibility determinations)
- NLRB v. Transportation Management Corp., 462 U.S. 393 (1983) (adoption of Wright Line burden-shifting framework)
- FiveCAP, Inc. v. NLRB, 294 F.3d 768 (6th Cir. 2002) (elements of Wright Line prima facie case)
- W.F. Bolin Co. v. NLRB, 70 F.3d 863 (6th Cir. 1995) (circumstantial evidence supporting inference of antiunion animus)