Airgas USA, LLC v. Nat'l Labor Relations Bd.
| Decision Date | 21 February 2019 |
| Docket Number | Nos. 18-1686/1771,s. 18-1686/1771 |
| Parties | AIRGAS USA, LLC, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Michael C. Murphy, AIRGAS, INC., Radnor, Pennsylvania, for Petitioner/Cross-Respondent. Heather S. Beard, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: Michael C. Murphy, AIRGAS, INC., Radnor, Pennsylvania, for Petitioner/Cross-Respondent. Heather S. Beard, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.
Before: GIBBONS, ROGERS, and STRANCH, Circuit Judges.
This case presents cross petitions—one for review and one for enforcement—regarding an order of the National Labor Relations Board (NLRB or the Board). At issue is the level of discipline warranted for a safety violation. Steven Wayne Rottinghouse, Jr., a truck driver employed by Petitioner Airgas USA, was issued a written warning for failing to properly secure his cargo. An administrative law judge (ALJ) found that the company used written discipline to retaliate against Rottinghouse for previously filing charges against it, and a divided panel of the NLRB affirmed. Because the Board's conclusions were supported by substantial evidence, we GRANT the General Counsel's application for enforcement of the Board's decision and DENY Airgas's petition for review.
In 2015, Rottinghouse was working as a truck driver at Airgas's Cincinnati plant. Airgas's driver trainer described him as "a very good driver" who "knows the truck [and] knows the job." Prior to 2015, Rottinghouse maintained good safety and driving records, with no documented violations of Airgas or Department of Transportation (DOT) rules.
His record suffered in the spring and summer of 2015—a period that Rottinghouse alleges was marked by a series of unlawful labor practices by Airgas and, in particular, by Clyde Froslear, the operations manager at the Cincinnati plant. In a meeting in April 2015, Froslear purportedly changed disciplinary policies to eliminate verbal warnings; Rottinghouse filed a charge with the NLRB alleging the change was made in retaliation for an earlier charge he had filed. Then, in late June, Airgas suspended Rottinghouse for three days for completing DOT paperwork after clocking out. Froslear described the violation as severe, dishonest, and potentially a terminable offense. Rottinghouse, alleging the suspension was further retaliation, filed a charge on July 7. That same month, Froslear provided an affidavit regarding the first charge, and both charges remained pending in early August.
On August 3, Rottinghouse pulled into the yard of the Airgas plant with a load of gas cylinders in his truck. The load consisted of at least one 12-pack of cylinders and four cylinders attached to the truck frame with two straps. The 12-pack, referred to as a "cradle" or a "bank," is described as a cage bolted together to keep the cylinders in place. Rottinghouse was responsible for securing the four cylinders that were not in a cradle. Airgas's driver training manual instructs that "cylinders must be strapped, chained or secured to the vehicle so that they do not move or rattle." Cylinders should also be "nested," meaning placed in a secure, staggered formation with each cylinder supporting its neighbors. The cylinders in Rottinghouse's truck, though secured with two straps, were not nested properly and leaned slightly against the truck railing.
Froslear was standing in the yard when Rottinghouse pulled in. According to the written warning issued to Rottinghouse later that week, Froslear Froslear went into his office to retrieve his phone and safety glasses and returned to the truck. He took a picture of the leaning cylinders and, without physically inspecting the load, went back inside. Froslear did not speak to Rottinghouse about fixing the cylinder placement or tightening the straps even though, according to the facts credited by the ALJ, the two men walked past each other twice. Rottinghouse checked the back of the truck to see what Froslear had photographed, readjusted the cylinders and straps, and left the yard to complete his route. Froslear, who was inside looking out a window while talking to another employee, saw Rottinghouse fix the load.
The next day, August 4, Froslear emailed Mark MacBride, Airgas's driver trainer. He attached a copy of the photo he had taken and asked, MacBride responded, When Froslear gave the name of the plant, MacBride wrote, "Not good, did the driver catch it before leaving[?]" Froslear wrote, "I saw it when he pulled in[to] the yard." MacBride asked again, "Did it get fixed before leaving[?]" and Froslear wrote, "This is the way it was when he pulled in after his run." MacBride responded, "Unacceptable," and Froslear asked, "Where would I find the strongest language about load securement that drivers are trained to?" MacBride referred him to the training manual.
On August 6, at a meeting with Rottinghouse, another plant manager, and the union steward, Froslear handed Rottinghouse the written warning letter and explained that he had heard rattling himself. Rottinghouse responded that the noise was coming from the 12-cylinder bank, not from the four strapped cylinders. Rottinghouse filed a grievance that day, writing that the "written warning [was] excessive" because the cylinders "were leaning a little but [did] not rattle."
That grievance gave rise to two meetings. At the first, on September 2, Froslear explained that Article 22 of the Collective Bargaining Agreement provided for written warnings. Rottinghouse disagreed, saying the warning should have been verbal. Froslear read Article 22 and reiterated that "[t]he discipline stays." At the second meeting, on September 23, Froslear again denied the request to reduce the discipline to a verbal warning, this time explaining that it was "not [Rottinghouse's] first DOT violation" and that the incident was "sever[e]."
Rottinghouse filed a charge with the Board. The ALJ concluded that the General Counsel had made a prima facie showing of discriminatory animus based on several lines of evidence, including "Froslear's inconsistent and unbelievable testimony" about the events of August 3, along with his "complete lack of concern for safety" and his "out to get you attitude towards Rottinghouse" as displayed in his emails to MacBride; the proximity in time between filing a charge in July 2015 and the discipline one month later; and disparate treatment in issuing a written warning to Rottinghouse after other employees received verbal warnings for comparably serious violations. The ALJ discredited as pretextual Airgas's nondiscriminatory reasons for disciplining Rottinghouse, deeming the reasons "shifting and inconsistent," and concluded that Airgas had violated § 8(a)(4) and (a)(1) of the National Labor Relations Act (NLRA or the Act), 29 U.S.C. § 158(a)(4), (a)(1). A divided panel of the Board agreed and adopted the ALJ's order.
Airgas petitions for review, and the General Counsel cross-applies for enforcement of the Board's order.
"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).
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" under the Act. 29 U.S.C. § 158(a)(4).1 This anti-retaliation provision is central to the purposes of the NLRA because, without some protection for employees attempting to access the 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).
The language of § 8(a)(4) encompasses disproportionate or otherwise retaliatory discipline. We have explained that "[d]isciplinary action falling short of discharge may violate section 8(a)(3) and (1) of the Act," NLRB v. Consol. Biscuit Co. , 301 F. App'x 411, 423 (6th Cir. 2008), and that "intensified surveillance and written reports of minor on-the-job activities of employees" may violate § 8(a)(1) of the Act, NLRB v. Fry Foods, Inc. , 609 F.2d 267, 270 (6th Cir. 1979) (per curiam). This logic applies equally to subsection (a)(4), whose broad language prohibiting "discharg[ing] or otherwise discriminat[ing]" easily includes the allegedly unwarranted discipline at issue here. Airgas does not argue otherwise.
We analyze claims of discrimination in violation of the NLRA under the burden-shifting framework articulated in Wright Line , 251...
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