AIRGAS USA LLC

National Labor Relations Board - Board Decisions

May 21, 2018

366 NLRB No. 92 (N.L.R.B. 2018)

366 NLRB No. 92
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Airgas USA, LLC and Steven Wayne Rottinghouse,
Jr. Case 09–CA–189551
May 21, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On December 13, 2017, Administrative Law Judge
Melissa M. Olivero issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief. In addi-
tion, the General Counsel filed a limited cross-exception.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge made some factual errors in her decision, but we find
these inadvertent errors do not materially affect the judge’s analysis and
correct them here. First, the judge once stated that Charging Party
Steven Wayne Rottinghouse, Jr. called out for his personal day on the
day before Thanksgiving 2016 less than an hour before his shift. As
she correctly wrote earlier in her decision, Rottinghouse actually called
out the evening before his shift. Second, the judge stated that Rotting-
house filed six charges with the Board between August 2013 and Au-
gust 2015, but he only filed four. The judge reached the incorrect
number by counting the charge that Rottinghouse filed in this matter on
December 8, 2016, and a charge International Brotherhood of Team-
sters Local Union No. 100, not Rottinghouse, filed on February 4,
2015. The judge repeated her misunderstanding that Rottinghouse filed
the February 2015 charge later in the decision, but Rottinghouse did not
file it and was only involved as one of the affected employees.
2 We affirm the judge’s conclusion, for the reasons she states, that
the Respondent violated Sec. 8(a)(4) and (1) by withholding Rotting-
house’s holiday pay for Thanksgiving 2016 because of his activity in
the filing and litigation of unfair labor practice charges. We additional-
ly emphasize that there is no evidence that prior to this incident the
Respondent had ever denied an employee holiday pay when he or she
took a personal day immediately before or after the holiday. The Re-
spondent contends that it had a practice of not paying holiday pay if an
employee, without a medical excuse, “called-off” for a personal day
before or after a holiday—meaning that the employee notified the Re-
spondent at some point between the end of his or her last shift and one
hour before his or her next shift—as opposed to scheduling a personal
day, before or after, farther in advance. There is no support for that
distinction. The record contains examples of employees receiving
holiday pay when taking either scheduled or called-off personal days,
with or without a medical excuse, before or after holidays. The exam-
ples of Matt Kinkade and Dennis Hibbard that the Respondent contends
and to adopt the judge’s recommended Order as modified
and set forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Airgas USA, LLC, Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withholding any employee’s holiday pay because
he or she filed charges with, assisted, or gave testimony
to the National Labor Relations Board.
(b) In any like or related manner interfering with, re-
straining, 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.
(a) Make Steven Wayne Rottinghouse, Jr. whole for
the holiday pay discriminatorily withheld in the amount
of $337.12, plus interest accrued to the date of payment,
and minus tax withholding required by Federal and State
laws, as set forth in the remedy section of the judge’s
decision.
(b) Compensate Steven Wayne Rottinghouse, Jr. for
the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file with the Regional
Director for Region 9, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year.
(c) Within 14 days after service by the Region, post at
its Cincinnati, Ohio facility copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representa-

support its position are inapposite. These employees were not paid for
holidays where they called off the day before or after, but records indi-
cate that they did not take paid personal days, as Rottinghouse and
other employees who were paid for holidays had. Kinkade and Hibbard
went without pay for their call-off days.
3 We note that the judge’s remedy incorrectly stated that backpay
should be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), instead of Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), which applies when the
violation found does not involve cessation of employment or interim
earnings that would reduce backpay. The judge’s misstatement is im-
material, however, because the Respondent admitted that, if found
liable, the consolidated compliance specification alleged the correct
amount of backpay: $337.12, plus interest, minus tax withholdings,
plus the amount of any adverse tax consequences. We shall modify the
judge’s recommended Order and substitute a new notice to conform to
the violation found and the Board’s standard remedial language.
4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tive, 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,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facilities involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since November 24, 2016.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 21, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT withhold your holiday pay because you
filed charges with, assisted, or gave testimony to the Na-
tional Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make Steven Wayne Rottinghouse, Jr. whole
for the holiday pay we discriminatorily withheld in the
amount of $337.12, plus interest accrued to the date of
payment, and minus tax withholding required by Federal
and State laws.
WE WILL compensate Steven Wayne Rottinghouse, Jr.
for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file with the Re-
gional Director for Region 9, within 21 days of the date
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year for Rottinghouse.
AIRGAS USA, LLC
The Board’s decision can be found at
http://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 Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
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 individ-
ual, 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,

1 All dates are in 2016 unless otherwise indicated.
AIRGAS USA, LLC 3
alleging that Airgas USA, LLC (Respondent) violated Section
8(a)(4) and (1) of the Act by refusing to pay Rottinghouse holi-
day pay for the 2-day Thanksgiving holiday in 2016. Respond-
ent timely answered the complaint, denying the allegations and
asserting several affirmative defenses.
The parties were given a full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, 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 Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware Limited Liability Company, is en-
gaged in retail sale and distribution of industrial gasses and
related products at its facility in Cincinnati, Ohio, where it de-
rives 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 Exh. 1(g).)
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business and Supervisory Structure
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, in-
cluding processing the payroll. (Tr. 142, 198.) Clyde Froslear
is the 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
facility on a daily basis. (Id.) Respondent admits, and I find,
that Allender, Luehrmann, and Froslear are supervisors of Re-
spondent within the meaning of Section 2(11) of the Act. (GC
Exh. 1(g); Tr. 9–11.)
B. Respondent’s Labor Relations
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.)

2 Although I have included citations to the record to highlight partic-
ular 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.
3 At the hearing, Respondent’s counsel stated that Respondent “con-
sented to the Board’s jurisdiction.” (Tr. 9, 10.)
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 employed by Respondent. (Tr. 21–22.) Allender was Rot-
tinghouse’s immediate supervisor. (Tr. 20.) Allender, in turn,
reported to Luehrmann, who reported to Froslear. (Tr. 20–21.)
D. Respondent’s Dealings with the Board
The Charging Party has filed numerous charges with Region
9 of the National Labor 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 be-
fore Administrative Law Judge Donna Dawson. (Jt. Exh 2.) I
take notice of the fact that both Froslear and Luehrmann testi-
fied in the earlier hearing. (Id.; Tr. 96–97.) Judge Dawson’s
decision is pending before the Board on exceptions filed by
Respondent.4
Between August 2013 and August 2015, Rottinghouse filed
six charges with the Board. (GC Exh. 1(a), 2, 3, 4, 5, 6.) Rot-
tinghouse filed the charge at issue in this case on December 8,
about a month prior to his meeting with Froslear and Lueh-
rmann over the discipline mentioned below. (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 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 charg-
es.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.)
In January 2017, Froslear met with Rottinghouse and his un-
ion 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 re-
plied, “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 Rotting-
house. (Tr. 82–83; 133.) Luehrmann testified that Froslear told

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 Per-
kins 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 Rotting-
house’s NLRB charge-filing activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Rottinghouse, “You don’t come to us before a [NLRB] charge
is made.” (Tr. 204.)
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-
bargaining agreement, unit members are subject to Respond-
ent’s bereavement leave policy under the same terms as non-
unit employees. (Jt. Exh. 1.) Under Respondent’s policy, em-
ployees receive up to 5 days of bereavement leave for the death
of an immediate family member, such as a spouse, child, par-
ent, step-parent, or step-child. (Jt. Exh. 3.) In the event of the
death of an extended family member, such as a sibling, grand-
parent, or brother- or sister-in-law, employees 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 be-
reavement leave. (Id.)
In November, Rottinghouse sought bereavement leave for
the death of a family member. The person who died was the
brother of Rottinghouse’s step-father.9 Rottinghouse consid-
ered 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 Allen-
der. (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, Rotting-
house agreed to 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 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 Mon-
day, November 28, the day after the Thanksgiving weekend.
(GC Exh. 19; Tr. 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 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.)

9 At some points in the transcript, the decedent is referred to as Rot-
tinghouse’s “step-uncle.”
The collective-bargaining agreement also contains a provi-
sion 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.)
Allender tracks employee time off by keeping notations in a
calendar book he keeps on his desk. (Tr. 54, 143.) Rotting-
house 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.) 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.)
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 cal-
endar indicates that other employees were paid for holidays
when they took a personal day before or after the various holi-
days. (GC Exh. 15, 16; Tr. 67–68, 115–117.)
Allender tracks attendance and Luehrmann prepares the pay-
roll. (Tr. 182.) Luehrmann uses Allender’s calendar as a refer-
ence when preparing the payroll. (Tr. 147.) In processing the
payroll, Luehrmann gets the calendar book from Allender’s
office and matches what is recorded there with the Kronos sys-
tem 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 em-
ployee 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 immediately before or the day immediate-
ly 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 “er-
ror.” (Tr. 188.) Another employee, John Jeffries, was paid for
the Thanksgiving holiday in 2016 when he called off work on
November 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

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.
AIRGAS USA, LLC 5
had scheduled their day off in advance.11
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
agreement between the Union and Respondent. (Jt. Exh. 1.)
Normal workdays for Respondent 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.
There is no dispute that Rottinghouse did not work on the
day immediately preceding or on the day immediately follow-
ing 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 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.) Rotting-
house then approached Froslear and asked why he wasn’t paid.
(Tr. 29.) Froslear responded because Rottinghouse did not
work on those days. (Id.) Rottinghouse then went to Lueh-
rmann’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.)
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 bereavement leave and the denial
of holiday pay for Thanksgiving and the day after Thanksgiv-
ing. (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 Rot-
tinghouse. (Tr. 39, 122.) Froslear, Luehrmann, and Jeff Mer-
coni, a vice president, appeared for Respondent.12 (Tr. 39.)

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.)
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 materi-
al, as there is no question that Froslear made a statement expressing
Regarding Rottinghouse’s Thanksgiving grievance, Froslear
stated that he was not paid because he did not work on Thanks-
giving or the day after Thanksgiving. (Tr. 40, 123.) Rotting-
house 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 rela-
tive was a step-uncle. (Tr. 125.) Rottinghouse argued that the
relative was his uncle, not his step-uncle. (Tr. 43.) Rotting-
house was aware of an incident involving another employee
who was paid for a bereavement day 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 Septem-
ber 15. (R. Exh. 1; Tr. 44.) Luehrmann admitted that he had
allowed Jeffries’ bereavement day.13 (Tr. 44.)
Following the meeting, Respondent agreed to pay Rotting-
house for his bereavement day. (Tr. 38, 126.) However, Re-
spondent has continued to refuse to pay Rottinghouse for the
two-day Thanksgiving holiday. This grievance remained pend-
ing at the time of the hearing. (Tr. 27.)
DISCUSSION AND ANALYSIS
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
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole. Double D Con-
struction 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 believe some, but not all, of a
witness’ testimony. Daikichi Sushi, 335 NLRB at 622. Credi-
bility of the witnesses is not generally at issue in this case, as
there was little variation among their testimony. Where neces-
sary, however, my credibility findings are incorporated into the
findings of fact set forth above.
This decision does not require a lengthy credibility determi-
nation, 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 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

annoyance with Rottinghouse’s activity with the Board in the presence
of Rottinghouse and others.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
factual question on which that 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 true where the witness is an agent of a party. Roo-
sevelt Mem. Med. Ctr., 348 NLRB 1016, 1022 (2006). Specifi-
cally, 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 par-
ticular, the Board will not hesitate to draw an adverse inference
from a respondent’s failure to present the testimony of a deci-
sion maker as to his motive in taking the alleged discriminatory
action. Dorn’s Transportation Co., Inc., 168 NLRB 457, 460
(1967), 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 filing
charges with the Board.
B. Respondent Violated the Act by Refusing to Pay the
Charging Party for the Thanksgiving Holiday
Section 8(a)(4) of the Act makes it unlawful for an employer
to discriminate against an employee because he has filed charg-
es 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 “as-
sure an effective administration of the Act by providing im-
munity 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 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. Proof of animus and discriminato-
ry 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,
1328 (2007).
The employer cannot meet its burden merely by showing that
it had a legitimate reason for its action; rather, it must demon-
strate 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. 1996); Roure Bertrand
Dupont, Inc., 271 NLRB 443, 443 (1984). If the employer’s
proffered reasons are pretextual—i.e., either false or not actual-

14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
ly 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. 705 F.2d 799 (6th Cir. 1982).
There is no doubt that Rottinghouse engaged in activity as-
sisting the Board in its investigations by filing charges, provid-
ing affidavit testimony, and by testifying in Board proceedings.
There can also be no doubt that Respondent was aware of this
activity, as Luehrmann and Froslear were present at a previous
hearing at which Rottinghouse testified. (Jt. Exh. 2.) Respond-
ent’s animus toward Rottinghouse’s activity is amply demon-
strated by Froslear’s comments, including, “It’s not like you’ve
ever come and talked to us before you filed 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 Rotting-
house and his Board activity.
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 rea-
sonably 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.” Internation-
al Automated Machines, 285 NLRB 1122, 1123 (1987), enfd.
861 F.2d 720 (6th Cir. 1988). This is particularly 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 ex-
pressing animus toward Rottinghouse’s filing of NLRB charg-
es, as testified to by Rottinghouse, Perkins, and Luehrmann.
As the General Counsel has met his initial burden of show-
ing 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. Respond-
ent 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, Respond-
ent 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 un-
scheduled days off around the Thanksgiving holiday; one of
them was paid and one of them was not. I find this contradic-
tion 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.
Respondent departed from its practice of paying employees

15 I further find that Respondent’s denial of holiday pay to Rotting-
house constituted an adverse employment action.
AIRGAS USA, LLC 7
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 Respond-
ent’s denial of holiday pay for Rottinghouse was in retaliation
of his activity in filing charges with the 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 protected activity and the adverse em-
ployment 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 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
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 holi-
day in 2016. I do emphasize, 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, distin-
guishable 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 animus against an employ-
ee’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 were elicited regarding Froslear’s comments about
Rottinghouse’s protected activity. Froslear, a senior manage-
ment official, made statements expressing irritation with Rot-
tinghouse’s protected activity in a large group meeting and at a
grievance meeting. He further married the decision of Re-
spondent to more strictly enforce its discipline policy to charge
filing activity by an employee. Froslear’s later comment direct-
ly associated Respondent’s decision to more strictly enforce its
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 Respond-
ent.
I further reject Respondent’s argument that Froslear’s state-
ments 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 state-
ments 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 employ-
ee’s protected activities to the decision-maker, unless the em-
ployer affirmatively establishes a basis for negating such impu-
tation. 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 Luehrmann was present
not only for the prior Board proceedings in Case 09–CA–
158662, but also when Froslear made his comments about Rot-
tinghouse’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 Luehrmann, who made the
decision to deny his holiday pay.
In its answer to the complaint, Respondent asserted ten af-
firmative 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 affirma-
tive defense has the burden of establishing it. Babcock & Wil-
cox Construction Co., 361 NLRB 1127, 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.
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
the Charging Party for the 2-day Thanksgiving holiday in 2016.
As part of my decision herein, I have recommended that Re-
spondent reimburse Charging Party Steven Wayne Rotting-
house, Jr., for the 2 days of work missed and the tax conse-
quences arising therefrom.
Compliance proceedings restore the status quo ante by re-
storing circumstances that would 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 Cali-
fornia Corp., 329 NLRB 977, 978 (1999). The General Coun-
sel’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 intro-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
duced the gross 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. However, Respondent fur-
ther answered that if it were found to owe backpay, it agreed
with the General Counsel’s calculations in all but one para-
graph. 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 al-
leged, that the backpay owed 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
Rottinghouse is entitled to be compensated will be the differ-
ence between the 2016 taxes and the taxes calculated for the
year in which the payment is eventually made.
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), ac-
crued to the date of payment, minus tax withholdings required
by Federal and State law, plus the amount of any adverse tax
consequences.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of 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.
3. By engaging in the unlawful conduct set forth in para-
graph 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.
4. Respondent shall pay to Rottinghouse $337.12 net back-
pay 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), ac-
crued to the date of payment, minus tax withholdings required
by Federal and State law, plus the amount of any adverse tax
consequences.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily refused to pay em-
ployee 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. 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 Riv-
er Medical Center, 356 NLRB 6 (2010), minus tax withhold-
ings 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.
In addition, Respondent shall, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board or-
der, 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 Social Security Administration at the appropriate time and
in the appropriate manner. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).
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).
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 employ-
ees 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 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 shall sign it or oth-
erwise 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 recommended16
ORDER
Respondent, Airgas USA, LLC, Cincinnati, Ohio, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminating against any employee for assisting and
giving testimony to the National Labor Relations Board.
(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 effec-

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
AIRGAS USA, LLC 9
tuate the policies of the Act.
(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 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.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 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 em-
ployer, employment agency, unemployment insurance office, or
reference seeker.
(c) Within 21 days of the Board’s order, file a report allocat-
ing backpay to the 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 Secu-
rity Administration at the appropriate time and in the appropri-
ate manner.
(d) Compensate Steven Wayne Rottinghouse, Jr., for the ad-
verse tax consequences, if 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 fa-
cility in Cincinnati, Ohio copies of the attached notice marked
“Appendix.”18 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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 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 al-
tered, 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 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.
(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

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent has taken to comply.
Dated, Washington, D.C. December 13, 2017
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discriminate against you by refusing to pay
you holiday pay for assisting or giving testimony to the Nation-
al Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 discrimina-
tion, 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 Direc-
tor will then transmit this report to the Social Security Admin-
istration at the appropriate time and in the appropriate manner.
WE WILL, within 14 days, remove from our files any refer-
ence to the unlawful discrimination against Steven Wayne Rot-
tinghouse, 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, unem-
ployment insurance office, or reference seeker.
AIRGAS USA, LLC
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10