AIRGAS USA LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 13, 2017

09-CA-189551 (N.L.R.B. Dec. 13, 2017)

JD–97-17
Cincinnati, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AIRGAS USA, LLC,
and Case 09–CA–189551
STEVEN WAYNE ROTTINGHOUSE, JR.,
AN INDIVIDUAL
Eric Taylor, Esq.,
for the General Counsel.
Michael Murphy, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case was tried in Cincinnati, Ohio on
June 1, 2017. Steven Wayne Rottinghouse, Jr. (Rottinghouse or Charging Party), an individual,
filed a charge on December 8, 2016,1 and an amended charge on March 20, 2017. The General
Counsel issued the complaint and compliance specification on March 31, 2017, alleging that
Airgas USA, LLC (Respondent) violated Section 8(a)(4) and (1) of the Act by refusing to pay
Rottinghouse holiday pay for the 2-day Thanksgiving holiday in 2016. Respondent timely
answered the complaint, denying the allegations and asserting several affirmative defenses.
The parties were given a full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. On the entire record, including my own
observation of the demeanor of the witnesses, 2 and after considering the briefs filed by the
General Counsel and Respondent, I make the following

1 All dates are in 2016 unless otherwise indicated.
2 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible testimony
and evidence presented at trial, as well as logical inferences drawn therefrom.
JD–97-17
2
FINDINGS OF FACT
I. JURISDICTION
5
Respondent, a Delaware Limited Liability Company, is engaged in retail sale and distribution
of industrial gasses and related products at its facility in Cincinnati, Ohio, where it derives gross
revenues in excess of $500,000 and purchases and receives goods valued in excess of $50,000
directly from points outside the State of Ohio. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.3 (GC 10
Exh. 1(g).)
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business and Supervisory Structure15
Respondent operates a facility at 10031 Cincinnati Dayton Road in Cincinnati, Ohio
(Cincinnati facility). (Jt. Exh. 1.) Todd Allender is the plant manager and Dave Luehrmann is
the branch facility manager at the Cincinnati facility. Luehrmann is responsible for the operation
of the Cincinnati facility, including processing the payroll. (Tr. 142, 198.) Clyde Froslear is the 20
operations manager over the Cincinnati facility; he also manages other facilities for Respondent.
Jt. Exh. 2, p. 21–22.)
Allender and Luehrmann work at the Cincinnati facility on a daily basis and Luehrmann is
the highest ranking person at the facility. (Tr. 21.) Froslear does not come to the Cincinnati 25
facility on a daily basis. (Id.) Respondent admits, and I find, that Allender, Luehrmann, and
Froslear are supervisors of Respondent within the meaning of Section 2(11) of the Act. (GC Exh.
1(g); Tr. 9–11.)
B. Respondent’s Labor Relations30
Respondent and Teamsters Local 100 (Union) have been signatory to a series of collective
bargaining agreements, the most recent of which is effective from December 1, 2015 to
November 30, 2018. (Jt. Exh. 1.) Barry Perkins has been the union steward at the Cincinnati
facility for over 9 years. (Tr. 109–110.) 35
C. Rottinghouse’s Employment with Respondent
Rottinghouse was employed as a driver by Respondent from September 2010 until February
2017, when he quit. (Tr. 20.) Rottinghouse was a member of Teamsters Local 100 while he was 40
employed by Respondent. (Tr. 21–22.) Allender was Rottinghouse’s immediate supervisor.
(Tr. 20.) Allender, in turn, reported to Luehrmann, who reported to Froslear. (Tr. 20–21.)

3 At the hearing, Respondent’s counsel stated that Respondent “consented to the Board’s
jurisdiction.” (Tr. 9, 10.)
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3
D. Respondent’s Dealings with the Board
The Charging Party has filed numerous charges with Region 9 of the National Labor 5
Relations Board (Board). Rottinghouse filed a charge against Respondent with the Board in
Case 09–CA–158662 in August 2015. (Jt. Exh. 2(b).) In February 2016, Rottinghouse testified
in the hearing concerning that case before Administrative Law Judge Donna Dawson. (Jt. Exh 2.)
I take notice of the fact that both Froslear and Luehrmann testified in the earlier hearing. (Id.; Tr.
96–97.) Judge Dawson’s decision is pending before the Board on exceptions filed by 10
Respondent.4
Between August 2013 and August 2015, Rottinghouse filed six charges with the Board. (GC
Exh. 1(a), 2, 3, 4, 5, 6.) Rottinghouse filed the charge at issue in this case on December 8, about
a month prior to his meeting with Froslear and Luehrmann over the discipline mentioned above. 15
(GC Exh. 1(a).)
Respondent’s managers have commented on Rottinghouse’s activity with the Board. In
April 2015, Froslear announced at a meeting that Respondent would no longer informally warn
employees to get back to work from an overstayed break.5 (Tr. 77–78.) Instead, Froslear said 20
that Respondent would proceed directly to a write up. (Tr. 78.) Froslear went on to explain that
Respondent was making this change because of NLRB charges.6 (Tr. 78, 127–129.)
Rottinghouse was not mentioned by name at this meeting. (Tr. 98, 129.) However, at the time of
this meeting, Rottinghouse had recently filed a charge with the Board. (GC Exh. 3.)
25
In January 2017, Froslear met with Rottinghouse and his union steward about a write up for
calling off an hour before his scheduled shift time.7 (Tr. 81–82, 130–131.) Rottinghouse asked
why, instead of writing him up, Respondent did not ask him what was going on that day. (Tr. 82,
132.) Froslear replied, “It’s not like you’ve ever come and talked to us before you filed all these
NLRB charges.”8 (Tr. 82, 133.) Froslear further mentioned having a list of the charges filed by 30
Rottinghouse. (Tr. 82–83; 133.) Luehrmann testified that Froslear told Rottinghouse, “You
don’t come to us before a [NLRB] charge is made.” (Tr. 204.)

4 I admitted the transcript and exhibits from Case 09–CA–158662 for the limited purpose of showing
Rottinghouse’s activity with the Board. (GC Exhs. 2, 2(a), 2(b); Tr.76.) I have not considered these
exhibits for any other purpose.
5 Rottinghouse was present at this meeting.
6 Rottinghouse testified that Froslear said “NLRB charges” and Perkins testified that Froslear said
“NLRB standards.” I do not find this difference material.
7 This grievance is not at issue in this case.
8 Perkins testified that Froslear stated, “Well, why is it you always have to file NLRB charges?” (Tr.
133.) I do not find this difference material, as Froslear was clearly expressing irritation with
Rottinghouse’s NLRB charge-filing activity.
JD–97-17
4
E. Bereavement Leave
Respondent maintains a policy on bereavement leave, which is referenced in the collective-
bargaining agreement between the parties. (Jt. Exhs. 1, 3.) According to the collective-5
bargaining agreement, unit members are subject to Respondent’s bereavement leave policy under
the same terms as non-unit employees. (Jt. Exh. 1.) Under Respondent’s policy, employees
receive up to 5 days of bereavement leave for the death of an immediate family member, such as
a spouse, child, parent, step-parent, or step-child. (Jt. Exh. 3.) In the event of the death of an
extended family member, such as a sibling, grandparent, or brother- or sister-in-law, employees 10
receive up to 3 days of bereavement leave. (Id.) In the event of the death of a family member
not listed in the policy, such as an aunt, uncle, niece, or nephew, an employee is allowed up to 1
day of bereavement leave. (Id.)
In November, Rottinghouse sought bereavement leave for the death of a family member. 15
The person who died was the brother of Rottinghouse’s step-father.9 Rottinghouse considered
this relative an uncle. (Tr. 36, 90.) The death occurred on November 22, the Tuesday before
Thanksgiving. (Tr. 37.) When Rottinghouse was notified of the death, he called Allender. (Tr.
46.) Rottinghouse told Allender that he would not be able to take any late runs that day because
his uncle had died. (Tr. 46.) That evening, while talking to his parents, Rottinghouse agreed to 20
help clean out his uncle’s apartment the next day. (Tr. 46–47.) Rottinghouse called Allender on
Tuesday evening to notify Allender that he intended to take a personal day on Wednesday,
November 23. (Tr. 49.) Thanksgiving Day fell on November 24. (GC Exh. 19.)
Rottinghouse learned about his uncle’s funeral arrangements on November 26, the Saturday 25
of Thanksgiving weekend. (Tr. 37.) At that time, Rottinghouse requested a bereavement day
from Allender by leaving Allender a voicemail message. (Tr. 37.) The funeral for
Rottinghouse’s uncle was held on Monday, November 28, the day after the Thanksgiving
weekend. (GC Exh. 19; Tr. 30.)
30
F. Holiday Pay and Personal Days
The collective-bargaining agreement between the Union and Respondent lists several
holidays, including Thanksgiving Day and the day after Thanksgiving (collectively, the
“Thanksgiving holiday”). (Jt. Exh. 1.) In order to be paid for a holiday, the contract states that 35
the employee must work the regularly scheduled work day immediately preceding the holiday
and immediately following the holiday. (Id.) The contract allows an exception for employees
who have a proven illness or injury substantiated by a doctor’s statement. (Id.) The parties also
stipulated that an employee will be paid for a holiday if he or she takes a personal day on the day
preceding or following a holiday, so long as the personal day is scheduled in advance. (Tr. 163.) 40
The collective-bargaining agreement also contains a provision regarding personal days. (Jt.
Exh. 1.) Employees receive 5 personal days on January 1 of each calendar year. (Id.) In order to
use a personal day, an employee is supposed to call in 1 hour prior to the start of his or her shift.
(Id.) 45

9 At some points in the transcript, the decedent is referred to as Rottinghouse’s “step-uncle.”
JD–97-17
5
Allender tracks employee time off by keeping notations in a calendar book he keeps on his
desk. (Tr. 54, 143.) Rottinghouse photographed pages from Allender’s calendar book. (GC
Exhs. 17, 18, 19, 20.) Allender uses the abbreviation “PER” for personal day. (Tr. 55, 62, 144.)
A star indicates that an employee was scheduled to work, but called off. (Tr. 144, 199.) 5
Allender’s calendar shows employees took personal days for the day before Labor Day and the
days after Thanksgiving and Christmas (Tr. 57–58, 59, 60, 144–147.) For example, the evidence
shows that an employee was paid for the Labor Day holiday in 2016, despite taking a personal
day on the day after the holiday. (GC Exhs. 13, 18; Tr. 154–156.) However, this employee
scheduled the personal day in advance. (Tr. 155.) 10
Luehrmann also keeps an attendance calendar in his office. (GC Exhs. 15, 16; Tr. 65.)
Abbreviations used by Luehrmann include “V” for vacation, “P” for personal day, and “F” for
floating holiday. (Tr. 67.) Like Allender’s, Luehrmann’s calendar indicates that other employees
were paid for holidays when they took a personal day before or after the various holidays. (GC 15
Exh. 15, 16; Tr. 67–68, 115–117.)
Allender tracks attendance and Luehrmann prepares the payroll. (Tr. 182.) Luehrmann uses
Allender’s calendar as a reference when preparing the payroll. (Tr. 147.) In processing the
payroll, Luehrmann gets the calendar book from Allender’s office and matches what is recorded 20
there with the Kronos system and employee absences. (Tr. 198–199.) Allender and Luehrmann
control which employees are paid for holidays. (Tr. 182.) Froslear has no role in determining
whether an employee will be paid or not be paid for a holiday. (Tr. 82.)
Respondent has paid other employees for holidays when they did not work the day 25
immediately before or the day immediately after the holiday. Employee Rick Miller was paid for
the New Year’s holiday in 2016. (Tr. 188.) Miller called off of work on January 4, the first day
after the holiday, and did not produce a doctor’s note. (R. Exh. 1; Tr. 188.) Allender said Miller
should not have been paid and described this as an “error.” (Tr. 188.) Another employee, John
Jeffries, was paid for the Thanksgiving holiday in 2016 when he called off work on November 30
28 and took a personal day. (GC Exh. 14; Tr. 171–172.) Allender attempted to characterize this
as a mistake.10 (Tr. 171–172.) These were the only examples in evidence of other employees
receiving holiday pay after calling off on the day before or after a holiday. (GC Exh. 14; R. Exh.
1; Tr. 188.) All of the other employees who received holiday pay when missing a day of work
immediately before or after a holiday had scheduled their day off in advance.1135
G. Thanksgiving 2016
Thanksgiving Day 2016 fell on Thursday, November 24 and the day after Thanksgiving fell
on Friday, November 25. Both days are considered holidays under the collective-bargaining 40
agreement between the Union and Respondent. (Jt. Exh. 1.) Normal workdays for Respondent

10 I do not credit Allender’s self-serving attempt to characterize the paying of these employees as a
mistake or an error. This explanation seems especially implausible given that John Jeffries was paid for
the same holiday for which Rottinghouse was not paid, and both called in to use a personal day.
11 Employee Dustin Madden was paid for the New Year’s holiday in 2016, even though he called off
on the day after the holiday. (Tr. 201.) However, Madden provided a doctor’s note for his absence. (R.
Exh. 10; Tr. 201.)
JD–97-17
6
are Monday through Friday; Saturday and Sunday are not considered work days. (Tr. 60.)
Therefore, the last work day before the Thanksgiving holiday would have been Wednesday,
November 23 and the first work day after the Thanksgiving holiday would have been Monday,
November 28.
5
There is no dispute that Rottinghouse did not work on the day immediately preceding or on
the day immediately following the Thanksgiving holiday in 2016. Rottinghouse was scheduled
to work on Wednesday, November 23, starting at 6:00 a.m. As outlined above, at about 5:16
a.m. on Wednesday, November 23, Rottinghouse called Allender’s cell phone and left a message
that he would not be at work that day and wished to use a personal day. Rottinghouse used a 10
bereavement day for Monday, November 28.
On December 5 or 6, Rottinghouse accessed Respondent’s computer system and learned that
he was not being paid for Thanksgiving or the day after Thanksgiving. (Tr. 28.) Rottinghouse
then approached Froslear and asked why he wasn’t paid. (Tr. 29.) Froslear responded because 15
Rottinghouse did not work on those days. (Id.) Rottinghouse then went to Luehrmann’s office.
(Tr. 30.) Rottinghouse asked Luehrmann why he was not paid for the day of his relative’s
funeral. (Tr. 30.) Luehrmann replied that, “there was no such thing as a step uncle.” (Tr. 30.)
Rottinghouse responded it wasn’t his step uncle, it was his uncle. (Tr. 31.)
20
H. Rottinghouse’s Grievances
Respondent did not pay Rottinghouse for Thanksgiving, the day after Thanksgiving, or the
day of his uncle’s funeral. (Tr. 28.) As a result, on December 7, Rottinghouse filed numerous
grievances with Respondent. Relevant here, he filed grievances over the denial of pay for his 25
bereavement leave and the denial of holiday pay for Thanksgiving and the day after
Thanksgiving. (GC Exhs. 8, 9.)
On December 9, the parties conducted a meeting regarding Rottinghouse’s grievances in
Froslear’s office. (Tr. 38, 39, 121, 203.) Union steward Barry Perkins appeared with 30
Rottinghouse. (Tr. 39, 122.) Froslear, Luehrmann, and Jeff Merconi, a vice president, appeared
for Respondent.12 (Tr. 39.)
Regarding Rottinghouse’s Thanksgiving grievance, Froslear stated that he was not paid
because he did not work on Thanksgiving or the day after Thanksgiving. (Tr. 40, 123.) 35
Rottinghouse argued that Respondent’s past practice was to pay people who took a personal day
before or after a holiday. (Tr. 41.)
At the meeting, Froslear also stated that Rottinghouse’s relative was a step-uncle. (Tr. 125.)
Rottinghouse argued that the relative was his uncle, not his step-uncle. (Tr. 43.) Rottinghouse 40
was aware of an incident involving another employee who was paid for a bereavement day

12 There was some confusion over the date of the grievance meeting and the step at which the meeting
was held. Luehrmann testified that the meeting at which Froslear made his statement about the NLRB
was in January and that it was a second step meeting. (Tr. 208–210.) I do not find the exact date of the
meeting or the step of the meeting material, as there is no question that Froslear made a statement
expressing annoyance with Rottinghouse’s activity with the Board in the presence of Rottinghouse and
others.
JD–97-17
7
related to the funeral of his wife’s uncle. (Tr. 43–44.) The evidence shows that this employee,
John Jeffries, was granted a day of bereavement leave to attend the funeral of an uncle by
marriage on September 15. (R. Exh. 1; Tr. 44.) Luehrmann admitted that he had allowed
Jeffries’ bereavement day.13 (Tr. 44.)
5
Following the meeting, Respondent agreed to pay Rottinghouse for his bereavement day. (Tr.
38, 126.) However, Respondent has continued to refuse to pay Rottinghouse for the two-day
Thanksgiving holiday. This grievance remained pending at the time of the hearing. (Tr. 27.)
DISCUSSION AND ANALYSIS10
A. Witness Credibility
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or 15
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to 20
believe some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. Credibility
of the witnesses is not generally at issue in this case, as there was little variation among their
testimony. Where necessary, however, my credibility findings are incorporated into the findings
of fact set forth above.
25
This decision does not require a lengthy credibility determination, as most of the relevant
facts are not in dispute. I have found that Froslear made statements expressing frustration or
irritation with Rottinghouse’s charge filing activity with the Board. I have further found that
Respondent’s own records demonstrate that other employees were paid for holidays when taking
a personal day before or after the holiday, even when the employee called in to use a personal 30
day.
The Board recognizes that when a party fails to call a witness who may reasonably be
assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any
factual question on which that witness is likely to have knowledge. International Automated 35
Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988). This is particularly
true where the witness is an agent of a party. Roosevelt Mem. Med. Ctr., 348 NLRB 1016, 1022
(2006). Specifically, the Board will infer that such a witness, if called, “would have testified
adversely to the party on that issue.” Id.; see also Flexsteel Industries, Inc., 316 NLRB 745, 758
(1995). In particular, the Board will not hesitate to draw an adverse inference from a 40
respondent’s failure to present the testimony of a decision maker as to his motive in taking the
alleged discriminatory action. Dorn’s Transportation Co., Inc., 168 NLRB 457, 460 (1967),

13 I do not mention Rottinghouse’s testimony that he and Froslear discussed the vagueness of the
parties’ collective-bargaining agreement because I find it does not bear on the issue of whether Froslear
made a statement expressing animosity toward Rottinghouse’s activity in filing charges with and assisting
the Board.
JD–97-17
8
enfd. 405 F.2d 706, 713 (2d Cir. 1969); Vista del Sol Health Services, Inc., 363 NLRB No. 135,
slip op. at 26 (2016); The Southern New England Telephone Co., 356 NLRB 883, 893–894
(2011); Government Employees (IBPO), 327 NLRB 676, 699 (1999). In this case, Respondent
did not call Froslear as a witness even though he was present in the room for the duration of the
hearing. Froslear is alleged to have made statements maligning Rottinghouse’s Board activity in 5
filing charges with the Board.
B. Respondent Violated the Act by Refusing to Pay the Charging Party for the Thanksgiving
Holiday
10
Section 8(a)(4) of the Act makes it unlawful for an employer to discriminate against an
employee because he has filed charges or given testimony under the Act. 29 U.S.C. §158(a)(4).
The Board has found that the purpose of Section 8(a)(4) is to “assure an effective administration
of the Act by providing immunity to those who initiate or assist the Board in proceedings under
the Act.” Briggs Manufacturing Company, 75 NLRB 569, 571 (1947). The Board analyzes such 15
allegations under the framework established in Wright Line.14 Newcor Bay City Division, 351
NLRB 1034, 1034 fn. 4 (2007). Under this framework, it was the General Counsel’s burden to
establish discriminatory motivation by proving the existence of protected activity, the
Respondent’s knowledge of that activity, and the Respondent’s animus against that activity. See
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004), citing Wright Line, supra at 1089. 20
Proof of animus and discriminatory motivation may be based on direct evidence or inferred from
circumstantial evidence. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004); Ronin
Shipbuilding, Inc., 330 NLRB 464, 464 (2000). If the General Counsel makes the required
initial showing, the burden then shifts to the employer to prove that it would have taken the same
action even in the absence of the protected activity. Allied Mechanical, 349 NLRB 1327, 132825
(2007).
The employer cannot meet its burden merely by showing that it had a legitimate reason for its
action; rather, it must demonstrate that it would have taken the same action in the absence of the
protected conduct. W. F. Bolin Co., 311 NLRB 1118, 1119 (1993), enfd. 99 F.3d 1139 (6th Cir. 30
1996); Roure Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984). If the employer’s proffered
reasons are pretextual—i.e., either false or not actually relied on—the employer fails by definition
to show that it would have taken the same action for those reasons regardless of the protected
conduct. Metropolitan Transportation Services, 351 NLRB 657, 659 (2007); Golden State Foods
Corp., 340 NLRB 382, 385 (2003); Limestone Apparel Corp., 255 NLRB 722, 722 (1981), enfd. 35
705 F.2d 799 (6th Cir. 1982).
There is no doubt that Rottinghouse engaged in activity assisting the Board in its
investigations by filing charges, providing affidavit testimony, and by testifying in Board
proceedings. There can also be no doubt that Respondent was aware of this activity, as 40
Luehrmann and Froslear were present at a previous hearing at which Rottinghouse testified. (Jt.
Exh. 2.) Respondent’s animus toward Rottinghouse’s activity is amply demonstrated by
Froslear’s comments, including, “It’s not like you’ve ever come and talked to us before you filed

14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
JD–97-17
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all these NLRB charges.” (Tr. 82, 204.) Furthermore, Froslear’s comment that Respondent was
altering its break discipline policy in light of NLRB charges, close in time to Rottinghouse’s
filing of such a charge, provides further evidence of animus toward Rottinghouse and his Board
activity.
5
Froslear was not called as a witness at the hearing, despite being present in the hearing room.
(Tr. 14.) The Board has agreed that “when a party fails to call a witness who may reasonably be
assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge.” International Automated
Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988). This is particularly 10
true where the witness is the Respondent’s agent. Roosevelt Memorial Medical Center, 348
NLRB 1016, 1022 (2006). Therefore, I draw an adverse inference against Respondent by its
failure to call Froslear as a witness and find that he made the statements expressing animus
toward Rottinghouse’s filing of NLRB charges, as testified to by Rottinghouse, Perkins, and
Allender. 15
As the General Counsel has met his initial burden of showing protected activity, employer
knowledge of the protected activity, and animus toward the protected activity, the burden now
shifts to Respondent to show it would have taken the same action in absence of Rottinghouse’s
protected conduct.15 I find that Respondent has not met its burden in this case. Respondent 20
treated Rottinghouse disparately from another employee because the other employee was paid
when he called in and took a personal day on the day before Thanksgiving 2016. Specifically,
while processing the very same payroll, Respondent made the conscious decision to pay John
Jeffries for the Thanksgiving holiday in 2016 at the very same time it decided not to pay
Rottinghouse. Jeffries and Rottinghouse took unscheduled days off around the Thanksgiving 25
holiday; one of them was paid and one of them was not. I find this contradiction significant.
Therefore, I find that Respondent’s stated reason for denying holiday pay to Rottinghouse was
pretextual and does not pass muster. Instead, I find that Rottinghouse was denied holiday pay
because of Respondent’s animus toward his Board activity.
30
Respondent departed from its practice of paying employees for a holiday when they called in
and used a personal day on the day before or after the holiday in denying Rottinghouse his
Thanksgiving holiday pay. Given Respondent’s disparate treatment of Rottinghouse while
allowing holiday pay for other employees in similar circumstances, I conclude that Respondent’s
denial of holiday pay for Rottinghouse was in retaliation of his activity in filing charges with the 35
Board and violated Section 8(a)(4) of the Act.
C. Respondent’s Arguments and Affirmative Defenses
Respondent argues on brief that a “causal nexus” is required between Rottinghouse’s 40
protected activity and the adverse employment action. (R. Br. p. 2.) Under extant Board law, no
such nexus is required. See Encino Hospital Medical Center, 360 NLRB 335, 336 fn. 6 (2014)
(no showing of particularized animus towards discriminatee’s specific protected activity) and
Mesker Door, Inc., 357 NLRB 591, 592 fn. 5 (2011) (finding that the judge incorrectly included

15 I further find that Respondent’s denial of holiday pay to Rottinghouse constituted an adverse
employment action.
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10
a “nexus” element as part of the General Counsel’s initial burden); Libertyville Toyota, 360
NLRB 1298, 1301 fn. 10 (2014), enfd. 801 F.3d 767 (7th Cir. 2015). Even if a causal nexus
were required, I would find that the General Counsel has established one. Allender and Froslear
were well aware of Rottinghouse’s protected activity with the Board. Froslear commented on
this activity twice and Allender was present for at least one of these comments. The evidence 5
establishes that other employees were paid for holidays when they did not work the day before or
after a holiday and those employees further did not schedule the days off in advance. Based
upon this disparate treatment and Froslear’s comments, I would find the General Counsel has
established a link between Respondent’s animus toward Rottinghouse’s protected activity and
Respondent’s refusal to pay him for the Thanksgiving holiday in 2016. I do emphasize, 10
however, that under current Board law a finding of such a nexus is not required.
I find the case of Sysco Food Servs. of Cleveland, Inc., 347 NLRB 1024 (2006), cited by
Respondent in its brief, distinguishable from the instant case. (R. Br. p. 11.) In that case, the
Board affirmed the administrative law judge’s finding that the General Counsel did not establish 15
animus against an employee’s grievance filing activity through two remarks made by a
supervisor. 347 NLRB at 1024. The supervisor in that case remarked “[n]ot another one” and
“[o]h geez what did I do now” upon receiving grievances from the alleged discriminatee. 347
NLRB at 1035 fn. 26. The judge noted that no further details were provided regarding the timing
or context of these remarks and found them to be “shop talk.” Id. However, in this case, details 20
were elicited regarding Froslear’s comments about Rottinghouse’s protected activity. Froslear, a
senior management official, made statements expressing irritation with Rottinghouse’s protected
activity in a large group meeting and at a grievance meeting. He further married the decision of
Respondent to more strictly enforce its discipline policy to charge filing activity by an employee.
Froslear’s later comment directly associated Respondent’s decision to more strictly enforce its 25
break policy, specifically as it related to Rottinghouse, to his charge filing activity. I cannot find
that these comments are mere shop talk. Instead, I find that Froslear’s comments are statements
of animus linked to Rottinghouse’s Board activity and, as such, violate the Act. These
circumstances are factually distinguishable from those in the Sysco case cited by Respondent.
30
I further reject Respondent’s argument that Froslear’s statements cannot be imputed to those
who made the decision to deny Rottinghouse his holiday pay. Section 2(13) of the Act makes it
clear that an employer is bound by the acts and statements of its supervisors. Dorothy Shamrock
Coal Co., 279 NLRB 1298, 1299 (1986). It is well established that the Board imputes a
manager’s or supervisor’s knowledge of an employee’s protected activities to the decision-35
maker, unless the employer affirmatively establishes a basis for negating such imputation. G4S
Solutions (USA), Inc., 364 NLRB No. 92 slip op. at 4 (2016), citing Vision of Elk River, Inc., 359
NLRB 69, 72 (2012), reaffirmed and incorporated by reference in 361 NLRB 1395 (2014).
Respondent here has not put forth any evidence that knowledge should not be imputed to its
decision-makers. Instead, the evidence establishes that Allender was present not only for the 40
prior Board proceedings in Case 09–CA–158662, but also when Froslear made his comments
about Rottinghouse’s Board activity. For these reasons, I find that it is proper to impute
Respondent’s animus toward Rottinghouse’s Board activity to those, including Allender, who
made the decision to deny his holiday pay.
45
JD–97-17
11
In its answer to the complaint, Respondent asserted ten affirmative defenses, including
failure to state a claim, that the claims in the complaint are time-barred under Section 10(b) of
the Act, that the claims in the complaint exceed the scope for the underlying charge, and a failure
by the Charging Party to exhaust administrative remedies. The proponent of an affirmative
defense has the burden of establishing it. Babcock & Wilcox Construction Co., 361 NLRB 1127, 5
1140 (2014), citing Broadway Volkswagen, 342 NLRB 1244, 1246 (2004) (finding the burden on
the party raising an untimely charge defense under Section 10(b) of the Act), enfd. 483 F.3d 628
(9th Cir. 2007). As Respondent presented no evidence supporting its affirmative defenses at the
hearing, and the affirmative defenses were not raised in Respondent’s brief, I will not address
them further.10
D. Compliance Specification
As indicated above, the General Counsel consolidated the complaint in this case with a
compliance specification. The compliance specification alleges the amount of backpay due to 15
the Charging Party for the 2-day Thanksgiving holiday in 2016. As part of my decision herein, I
have recommended that Respondent reimburse Charging Party Steven Wayne Rottinghouse, Jr.,
for the 2 days of work missed and the tax consequences arising therefrom.
Compliance proceedings restore the status quo ante by restoring circumstances that would 20
have existed had there been no unfair labor practices. Hubert Distributors, Inc., 344 NLRB 339,
341 (2005). The finding of an unfair labor practice is presumptive proof that some backpay is
owed. Beverly California Corp., 329 NLRB 977, 978 (1999). The General Counsel’s burden in
backpay cases is to show the amount of gross backpay due the discriminatee. Hansen Bros.
Enterprises, 313 NLRB 599, 600 (1993). Once the General Counsel has introduced the gross 25
backpay due to the discriminatee, the burden shifts to the respondent to establish affirmative
defenses that would eliminate or otherwise reduce its backpay liability. Avery Heights, 349
NLRB 829, 838 (2007); Centra, Inc., 314 NLRB 814, 815–820 (1994).
In its answer to the complaint, Respondent denied that it owed the Charging Party backpay. 30
However, Respondent further answered that if it were found to owe backpay, it agreed with the
General Counsel’s calculations in all but one paragraph. However, at the hearing, Respondent
stipulated that it agreed with the calculation in this paragraph. (Tr. 216.)
Based upon these admissions and stipulations, I find, as alleged, that the backpay owed 35
Rottinghouse for November 24 and 25, 2016, is properly calculated by multiplying his $21.07
hourly rate by 16 hours. The holiday pay that Rottinghouse would have received but for
Respondent’s discrimination against him is $337.12. The amount of taxes owed for 2016 are
$44.00, as set forth in the compliance specification. The total amount of the lump-sum award
that is subject to excess tax liability is $337.12. The adverse tax consequences for which 40
Rottinghouse is entitled to be compensated will be the difference between the 2016 taxes and the
taxes calculated for the year in which the payment is eventually made.
JD–97-17
12
Thus, Respondent shall pay to Rottinghouse $337.12 net backpay and expenses, plus interest
computed and compounded daily as prescribed in New Horizons, 283 NLRB 1173 (1987), and
Kentucky River Medical Center, 356 NLRB 6 (2010), accrued to the date of payment, minus tax
withholdings required by Federal and State law, plus the amount of any adverse tax 5
consequences.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce within the meaning of 10
Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(4) and (1) of the Act when it refused to pay Steven
Wayne Rottinghouse, Jr., holiday pay for Thanksgiving Day and the day after
Thanksgiving 2016.15
3. By engaging in the unlawful conduct set forth in paragraph 2, above, Respondent has
engaged in an unfair labor practice affecting commerce within the meaning of Section
8(a)(4) and (1), and Section 2(6) and (7) of the Act.
20
4. Respondent shall pay to Rottinghouse $337.12 net backpay and expenses, plus
interest computed and compounded daily as prescribed in New Horizons, 283 NLRB
1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010), accrued to the
date of payment, minus tax withholdings required by Federal and State law, plus the
amount of any adverse tax consequences. 25
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the 30
policies of the Act.
The Respondent, having discriminatorily refused to pay employee Steven Wayne
Rottinghouse, Jr., for Thanksgiving and the day after Thanksgiving 2016, must make him whole
for his lost earnings and other benefits. Backpay shall be computed in accordance with F. W. 35
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010), minus tax withholdings required by Federal and State law. The amounts owed
are computed above in this decision and interest and tax liability shall continue to accrue until
the date of payment.40
In addition, Respondent shall, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, file a report allocating backpay with the Regional Director
for Region 9. Respondents will be required to allocate backpay to the appropriate calendar years
only. The Regional Director will then assume responsibility for transmission of the report to the 45
Social Security Administration at the appropriate time and in the appropriate manner. AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016).
JD–97-17
13
Respondent shall also compensate the discriminatee for the adverse tax consequences, if any,
of receiving one or more lump-sum backpay awards covering periods longer than 1 year. Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014).
5
Respondent shall post an appropriate informational notice, as described in the attached
appendix. This notice shall be posted in the Respondent’s facility or wherever the notices to
employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 10
means, if Respondent customarily communicates with its employees by such means. In the event
that, during the pendency of these proceedings, Respondent has gone out of business or closed
the facility involved in these proceedings, Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by
Respondent at any time since November 24, 2016. When the notice is issued to Respondent, it 15
shall sign it or otherwise notify Region 9 of the Board what action it will take with respect to this
decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1620
ORDER
Respondent, Airgas USA, LLC, Cincinnati, Ohio, its officers, agents, successors, and
assigns, shall25
1. Cease and desist from
(a) Discriminating against any employee for assisting and giving testimony to the
National Labor Relations Board.30
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.35
(a) Within 14 days from the date of the Board’s Order, make Steven Wayne
Rottinghouse, Jr. whole for any loss of earnings and other benefits suffered as a result
of the discrimination against him. The backpay owed to Rottinghouse is $337.12,
plus interest computed and compounded daily as prescribed in New Horizons, 283 40
NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010),

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–97-17
14
accrued to the date of payment, minus tax withholdings required by Federal and State
law.17
(b) Within 14 days, remove from its files any reference to the discrimination against
Steven Wayne Rottinghouse, Jr., and, within 3 days thereafter, notify him in writing 5
that this has been done and that the discrimination will not be used against him in any
way, including in response to any inquiry from any employer, employment agency,
unemployment insurance office, or reference seeker.
(c) Within 21 days of the Board’s order, file a report allocating backpay to the 10
appropriate calendar years with the Regional Director for Region 9. The Regional
Director will then assume responsibility for transmission of the report to the Social
Security Administration at the appropriate time and in the appropriate manner.
(d) Compensate Steven Wayne Rottinghouse, Jr., for the adverse tax consequences, if 15
any, of receiving one or more lump-sum backpay awards covering periods longer
than 1 year.
(e) Within 14 days after service by the Region, post at its facility in Cincinnati, Ohio
copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms 20
provided by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on an 25
intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved 30
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the
Respondent at any time since November 24, 2016.

17 As noted above, this lump-sum amount covers backpay, interest, and tax liability through the date
of the complaint. Interest and tax liability shall continue to accrue until the actual date of payment.
18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–97-17
15
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
5
Dated, Washington, D.C. December 13, 2017
Melissa M. Olivero10
Administrative Law Judge
Aar u 64/)"
JD–97-17
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discriminate against you by refusing to pay you holiday pay for assisting or
giving testimony to the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL make Steven Wayne Rottinghouse, Jr., whole for his loss of holiday pay resulting
from our unlawful discrimination, less tax withholdings required by Federal and State law, plus
interest compounded daily.
WE WILL compensate Steven Wayne Rottinghouse, Jr., for the adverse tax consequences, if
any, of receiving lump-sum backpay awards covering periods longer than 1 year.
WE WILL file a report with the Regional Director allocating backpay to the appropriate calendar
years. The Regional Director will then transmit this report to the Social Security Administration
at the appropriate time and in the appropriate manner.
WE WILL, within 14 days, remove from our files any reference to the unlawful discrimination
against Steven Wayne Rottinghouse, Jr., and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discrimination will not be used against him in any
way, including in response to any inquiry from any employer, employment agency,
unemployment insurance office, or reference seeker.
AIRGAS USA, LLC
(Employer)
Dated By
(Representative) (Title)
JD–97-17
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202–3271
(513) 684–3686, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/09-CA-189551 or by using the QR code below.
Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (513) 684–3733.