AIRGAS USA LLC

National Labor Relations Board - Board Decisions

Jun 13, 2018

366 NLRB No. 104 (N.L.R.B. 2018)

366 NLRB No. 104
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–158662
June 13, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On July 7, 2016, Administrative Law Judge Donna N.
Dawson issued the attached decision. The Respondent
filed exceptions and a supporting brief.
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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
I.
The Respondent sells and distributes industrial gases
from several facilities, including one in Cincinnati, Ohio
(the Cin-Day plant). The Respondent employs commer-
cial drivers who drive trucks with attached trailers to
transport cylinders of those gases to and from the Re-
spondent’s customers. The drivers generally are respon-
sible for properly securing the cylinders in the trailers so
they do not rattle or shift during transport.3
Steven Rottinghouse, Jr. was one of the Respondent’s
commercial drivers. As further described below, the

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance 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.
2 In adopting the judge’s determination that the Respondent violated
Sec. 8(a)(4) and (1) of the Act when it issued a written warning to
employee Steven Rottinghouse, Jr., we find it unnecessary to pass on
her analysis of the Respondent’s rebuttal burden under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). We find the judge’s animus
analysis and her credibility findings clearly establish that the Respond-
ent’s reasons for issuing a written warning as opposed to a verbal warn-
ing were pretextual. As a result, the Respondent has failed by defini-
tion to show that it would have taken the same action absent Rotting-
house’s protected conduct. See Golden State Foods Corp., 340 NLRB
382, 385 (2003). Where, as here, pretext is found, “there is no need to
perform the second part of the Wright Line analysis.” Id.
3 There are instances in which other employees first secure the cyl-
inders inside a container referred to as a “cradle,” which is then loaded
onto a driver’s trailer. In those instances, the driver is not responsible
for securing the cylinders inside the “cradle,” but must ensure that the
“cradle” is secure.
Respondent issued a written warning to Rottinghouse on
August 6, 2015,4 for driving his truck with improperly
secured gas cylinders in his trailer. The General Counsel
alleges, however, that the Respondent’s real motivation
for issuing that discipline was Rottinghouse’s past filing
of unfair labor practice charges. The judge agreed, and
so do we.
II.
In May, just a few months preceding his August 6 dis-
cipline, Rottinghouse filed an unfair labor practice
charge alleging that the Respondent had threatened to
change employees’ terms and conditions of employment
because Rottinghouse had filed grievances and filed
charges with the Board. In July, Rottinghouse filed an-
other charge alleging that the Respondent had given him
a 3-day suspension in June in retaliation for engaging in
protected union activities and for filing Board charges.
On August 6, while the Region was investigating both
of those charges, the Respondent gave Rottinghouse the
written warning at issue in this case, based on an incident
that had happened on August 3. On August 3, after Rot-
tinghouse had returned to the Respondent’s facility after
spending the morning collecting gas cylinders, one of the
Respondent’s operations managers, Clyde Froslear, no-
ticed that the cylinders in Rottinghouse’s trailer were
tilting and improperly secured. Froslear made no effort
to speak with Rottinghouse but, instead, went inside the
facility, grabbed his camera, and returned to the truck
where he took pictures to document the unsecure load.
He made no attempt to inspect the cylinders, secure
them, or direct Rottinghouse to do so.
Having seen Froslear taking photos, Rottinghouse re-
turned to his truck to see what Froslear was looking at.
The pair made eye contact, but neither said anything, and
Froslear returned inside. Froslear then proceeded to
watch Rottinghouse from the window of the facility,
where he saw Rottinghouse climb onto the back of his
truck, secure the leaning cylinders, and drive off. Alt-
hough Froslear testified that if he saw a “serious safety
issue” such as this, he would ensure that it was corrected
before the driver left the lot, Froslear made no attempt to
speak with Rottinghouse about the safety issue on that
day.
The next day, Froslear emailed the Respondent’s driv-
er trainer, Mark MacBride, a photograph of the leaning
cylinders, asking, “What do you think about this? Look
good to you?” MacBride responded, “No. With the cyl-
inders being offset, we would be hit for an insecure load
just by how it looks. Where is this truck?” Froslear an-
swered, “Cin-Day.” MacBride then asked if the driver

4 All dates are in 2015 unless indicated otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
caught it before leaving. Rather than answer this ques-
tion, Froslear wrote “I saw it when he pulled into the
yard.” When MacBride again asked if was fixed before
leaving, Froslear did not reply that the cylinders had been
secured, but instead answered, “This is the way it was
when he pulled in after his run.” MacBride emailed,
“Unacceptable.” Froslear then wrote, “Where would I
find the strongest language about load securement that
drivers are trained to?” MacBride told him to look in the
driver training manual.
In a disciplinary meeting on August 6, the Respondent
gave Rottinghouse a written warning for having improp-
erly secured gas cylinders in his trailer on August 3.
During that meeting, and two subsequent grievance
meetings in September, Rottinghouse argued that he
should only have received a verbal warning. During the
last grievance meeting on September 23, a union repre-
sentative asked that Rottinghouse’s discipline be lowered
to a verbal warning because it was Rottinghouse’s first
offense. Froslear responded that it was not Rotting-
house’s first offense. Later in the meeting, the repre-
sentative again asked if Froslear would reduce the writ-
ten warning to a verbal warning, and Froslear said, “No
because it is not Steve’s first DOT violation and because
of the severity of the event.”
As stated, the General Counsel alleges, and the judge
found, that the Respondent issued Rottinghouse a written
warning for the August 3 incident in retaliation for Rot-
tinghouse having filed charges with the Board. For the
reasons set forth in the judge’s decision and as further
explained below, we also agree, contrary to our dissent-
ing colleague, that the written warning was unlawful.
III.
The judge found, and it is not disputed, that Rotting-
house’s filing of unfair labor practice charges was pro-
tected activity and that the Respondent knew about the
filings. Therefore, the judge appropriately focused her
analysis on whether the General Counsel showed that the
Respondent had animus toward employees filing Board
charges.5 In a detailed decision, the judge found that the
evidence as a whole demonstrated that the Respondent
was motivated by its disdain for Rottinghouse’s repeated
charge filings when it issued him the written warning.

5 See, e.g., Mesker Door, Inc., 357 NLRB 591, 592 (2011) (“The el-
ements commonly required to support a finding of discriminatory moti-
vation are union activity by the employee, employer knowledge of that
activity, and antiunion animus by the employer. Proof of discriminato-
ry motivation can be based on direct evidence or can be inferred from
circumstantial evidence based on the record as a whole”) (citations
omitted).
She further found that the reasons the Respondent gave
for the discipline were pretextual.6
In finding unlawful motivation, the judge first found
that the timing of the warning was suspicious. It oc-
curred during an ongoing Board investigation of allega-
tions that Froslear had unlawfully threatened employees
with more serious discipline because of Rottinghouse’s
unfair labor practice and grievance filings, and not long
after Froslear and Cin-Day plant manager David Lueh-
rmann gave affidavits before the Board on July 13.7
Second, the judge found that Froslear’s actions contra-
dicted his purported concern for safety—the reason he
gave for issuing Rottinghouse the warning letter.8 Third,
the judge found evidence of disparate treatment that fur-
ther demonstrates animus. She explained that at least
two other employees received an oral counseling for
more serious Department of Transportation violations.9

6 Pretext also supports a finding of animus. See Lucky Cab Co., 360
NLRB 271, 274 (2014).
7 We disagree with our dissenting colleague that the judge errone-
ously relied on timing to support her animus finding. The sequence of
relevant events shows that, at the time the Respondent disciplined Rot-
tinghouse, the Region was actively investigating two charges filed by
him, only 3 weeks had passed since the Respondent’s managers
Froslear and Luehrmann gave affidavits pursuant to the first charge,
and only a month had passed since Rottinghouse filed his second
charge. See S. Freedman & Sons, Inc., 364 NLRB No. 82, slip op. at 4
(2016) (animus found in Sec. 8(a)(4) allegation based on timing of
discipline imposed within weeks of a Board hearing, which took place
over 3 months after charge was filed), enfd. 713 Fed.Appx. 152 (4th
Cir, 2017). See also Bates Paving and Sealing, 364 NLRB No. 46, slip
op. at 3–4 (2016), and cases cited therein (noting that a discharge oc-
curring 2 months after an employee gave testimony adverse to his em-
ployer suggests unlawful motivation and that an employer may wait for
a pretextual opportunity to discipline an employee).
8 If Froslear was concerned about safety after noticing that the cylin-
ders were unsecure, why would he leave the area to obtain a camera
rather than seek out Rottinghouse or wait by the truck until Rotting-
house returned? Froslear’s actions suggest that he was instead focused
on catching Rottinghouse in an infraction and creating a record against
him rather than correcting the problem. And even when Rottinghouse
returned to his truck and the two made eye contact, Froslear left with-
out comment and retreated to his office - despite this being the obvious
opportunity to identify the problem that needed correction. Contrary to
the dissent, it was not “objectively logical” for Froslear to assume that
Rottinghouse would observe him taking pictures, notice the deficiency,
and correct it without Froslear saying anything, or even waiting until
the canisters were secured. It is equally implausible that—were safety
Froslear’s true concern—he would have returned inside to “wait and
see” whether Rottinghouse would secure the cylinders before continu-
ing his runs. Thus, despite Froslear’s testimony that he would not have
allowed a driver to return to the road with a “serious safety issue” with-
out first ensuring that it had been corrected, his actions prove other-
wise. Indeed, as the judge found, what Froslear’s actions showed was
that “he was out to get Rottinghouse, and therefore more intent on
catching and punishing him for reasons other than ensuring public
safety . . .”
9 Our colleague argues that the evidence “falls far short of proving a
blatant disparity;” however, “blatant disparity” is not the standard for
finding animus from disparate treatment. To be sure, evidence of “bla-
AIRGAS USA, LLC 3
Fourth, the judge rejected the Respondent’s claim that
the written warning was issued as the next step of pro-
gressive discipline.10 Fifth, the judge found that
Froslear’s “out to get you” attitude was supported by his
email to MacBride seeking the “strongest language,”11 by

tant disparity” will support a prima facie case of discrimination, but it is
not necessary to support such a finding. See, e.g., Sears, Roebuck &
Co., 337 NLRB 443, 443–444 (2002) (observing that “blatant dispari-
ty” may establish unlawful animus, but instead relying on the record as
a whole, including timing, disparate treatment, and other factors, to find
such animus); Aliante Gaming, LLC d/b/a Aliante Casino and Hotel,
364 NLRB No. 80, slip op. at 1 fn. 3 (2016) (finding that disparate
treatment, among other factors, supported a finding of animus).
10 Froslear’s suggestion, echoed by the Respondent, that Rotting-
house’s prior offense played a role in the written warning was disin-
genuous, at best, because the record establishes that it did not. It was
not referenced in the warning letter or the first grievance meeting; it
was referred to at a later meeting only in response to a question. Fur-
ther, Froslear’s suggestion contradicts his other statements that there
was no verbal warning option. We find that that these inconsistent and
shifting explanations for issuing the written warning support both a
finding of animus and that the Respondent was providing pretextual
reasons for the written warning. See, e.g., See Fluor Daniel, Inc., 304
NLRB 970, 971 (1991), enfd. mem. 976 F.2d 744 (11th Cir. 1992).
We disagree with our colleague’s statement that the judge made a
“clear error” in stating that Froslear testified that he issued the written
warning as a form of progressive discipline. In response to the question
about whether the written warning was issued “because of progressive
discipline,” Froslear stated, “I mentioned to him that it wasn’t his first
offense.”
11 We disagree with our colleague’s characterization of Froslear’s
hearing testimony as providing a reasonable explanation for his asking
for the “strongest language” about securing cylinders. Rather, we find
that testimony—where Froslear tried to paint his inquiry as an effort to
better teach drivers—to be disingenuous and are not surprised the judge
did not specifically address it as it was clearly “not reliable or trustwor-
thy.” Though the Respondent did include in its written warning that
“cylinders must be strapped, chained or secured to the vehicle so that
they do not rattle,” it did not “teach” Rottinghouse how to secure the
cylinders. Indeed, Froslear did not even speak to Rottinghouse when
they made eye contact when Rottinghouse returned to his truck. Nor
did the Respondent require further training from him as it had with
another employee who was disciplined for driving with unsecured
loads. Thus, we find this testimony to be further evidence of the Re-
spondent’s inconsistent and shifting explanations for the written warn-
ing, and, therefore, further support for the judge’s animus finding. See
Lucky Cab, supra 360 NLRB at 274.
Additionally, we find that Froslear’s evasiveness with MacBride on
August 5 supports the judge’s finding that Froslear had an “out to get
you attitude.” In his emails, Froslear did not directly answer Mac-
Bride’s questions as to whether the tilting cylinders were caught by the
driver or fixed before the truck left the plant, even though Rottinghouse
had indeed secured the cylinders before leaving. This evasiveness
occurred right before Froslear asked for the “strongest language,” and it
adds further context to the “strongest language” request. We find that
the whole interaction with MacBride shows suspect behavior by
Froslear, which when combined with the record as a whole, provides a
clear picture of Froslear’s “out to get you” attitude and strong evidence
of the Respondent animus toward Rottinghouse’s protected activity of
filing charges.
its failure to conduct a meaningful investigation,12 and by
false testimony provided by Froslear regarding the fall-
ing cylinder. 13
The judge also found, with clear record support, that
Froslear was not credible regarding his real reasons for
issuing Rottinghouse the warning letter. The judge stat-
ed, “I find that Froslear’s inconsistent and unbelievable
testimony about discipline,14 misrepresentation about
falling cylinders, dishonesty about not seeing Rotting-
house outside near the truck,15 failure to physically ex-
amine the cylinders on the truck16 and failure to find Rot-
tinghouse and correct the unsecured cylinders17 support
my finding . . . that he was not credible regarding his real
reasons for issuing Rottinghouse’s warning letter and not
agreeing to reduce it to a verbal counseling or warning.”
For all of those reasons, we agree with the judge that
the evidence as a whole shows that the Respondent was
not credible in explaining why it gave Rottinghouse a
written warning as opposed to an oral warning, and we
find that the reasons it did give were a pretextual attempt
to mask the Respondent’s unlawful motivation, which
was based on animus toward Rottinghouse’s Board activ-
ity. Therefore, as we found above, the Respondent has
failed by definition to show that it would have taken the

12 Froslear made no attempt to physically examine the cylinders in
Rottinghouse’s truck to determine if they were at risk of moving. Nor
did Froslear make any attempt to speak to Rottinghouse about the cause
of the issue, his concerns about the unsecured load, or how to fix it,
despite having numerous opportunities to do so. Rather, Froslear mere-
ly watched through his office window as Rottinghouse corrected the
problem. New Orleans Cold Storage & Warehouse Co., 326 NLRB
1471, 1477 (1998) (“The failure to conduct a meaningful investigation
and to give the employee who is the subject of the investigation an
opportunity to explain are clear indicia of discriminatory intent.”), enfd.
201 F.3d 592 (5th Cir. 2000).
13 Froslear testified that he saw the cylinders falling, and later clari-
fied his testimony to state that they had just tilted, but, in fact, the judge
found that Froslear never saw the cylinders move at all.
14 Froslear falsely stated that he was not familiar with an oral warn-
ing given to employee Jeffries for a vehicle backing accident. He also
gave “incredulous” testimony where he stated that he did not consider a
commercial driver talking on the phone while driving to be a serious
Department of Transportation infraction, despite that it could have
subjected the driver to a $2570 fine and the Respondent to an $11,000
fine.
15 When asked by the General Counsel if he talked to Rottinghouse
after noticing the leaning cylinders, Froslear testified, “I didn’t know
where Mr. Rottinghouse was at.” This, however, was not true. As the
judge found, “[Froslear] certainly knew he was somewhere on the
premises,” and “he knew to watch through a window to see what Rot-
tinghouse would do next.”
16 Froslear testified that he did not have to physically touch the cyl-
inders because he saw them move; however, as the judge found and as
noted above, Froslear never saw the cylinders move.
17 As the judge detailed, and as we noted above, Froslear’s actions
on August 3 demonstrated a lack of concern for safety.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
same action absent Rottinghouse’s filing of charges with
the Board.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Airgas USA, LLC, Cincin-
nati, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Dated, Washington, D.C. June 13, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER KAPLAN, dissenting.
The Charging Party in this case, Steven Rottinghouse,
Jr., failed to secure gas cylinders on his truck, which was
a serious violation of Department of Transportation
(DOT) and company safety policies. The Respondent,
Airgas USA, LLC, gave Rottinghouse a written warning.
Even Rottinghouse admits that discipline was warranted,
but he claims that he should have only received a verbal
warning. However, the judge found that the Respond-
ent’s Operations Manager, Clyde Froslear, had a “com-
plete lack of concern” for safety and was “out to get Rot-
tinghouse,” using the cylinder incident as a pretext to
discipline him “for reasons other than ensuring public
safety or protecting Airgas from liability.” My col-
leagues agree with the judge, and find that the written
warning violated Sections 8(a)(4) and (1) of the National
Labor Relations Act (the Act), which prohibit retaliation
based on the filing of unfair labor practice charges and
participation in NLRB proceedings.
I believe my colleagues and the judge are incorrect,
and their finding of a violation is unsupported by a pre-
ponderance of the record evidence. In my view, the rec-
ord supports the Respondent’s contention that its sole
motivation for the warning was Rottinghouse’s failure to
properly secure the gas cylinders in his truck. The con-
trary finding by my colleagues and the judge is based on
unwarranted inferences and the subjective judgment re-
garding what they believe the Respondent’s safety pro-
cedures and disciplinary policy should be. Accordingly,
I respectfully dissent.
Facts
The Respondent sells and distributes industrial gasses
from a facility in Cincinnati, Ohio (the “Cin-Day plant”).
Operations Manager Froslear oversees several of the
Respondent’s facilities, including the Cin-Day plant.
David Luehrmann is the Cin-Day plant manager.
Charging Party Rottinghouse is one of the Respondent’s
commercial drivers and a member of the Teamsters Ohio
Local 100 (the Union) that represents the drivers.
Prior to the discipline at issue in this case, Rotting-
house had filed two unfair labor practice charges with the
Board. On May 14, 2015,1 he filed a charge in Case 09–
CA–152301. This charge was ultimately resolved by an
informal settlement agreement approved by the Regional
Director for Region 9 on September 3.2 On July 7, Rot-
tinghouse filed a charge in Case 09–CA–155497 alleging
that the Respondent retaliated against him for engaging
in protected concerted activities and for filing Board
charges when it suspended him for 3 days on June 22 for
dishonesty and a deliberate violation of DOT policy by
completing paperwork off the clock. This was his first
discipline while working for the Respondent. The Re-
gional Director dismissed the charge on September 22.
The General Counsel’s Office of Appeals denied Rot-
tinghouse’s appeal of the dismissal on November 5, stat-
ing in part that “there was no objective evidence of hos-
tility linking the Employer’s decision to your participa-
tion in Board proceedings.”
The incident giving rise to this case occurred on Au-
gust 3. Rottinghouse drove his truck that day on a route
that included several stops to pick up empty cylinders at
a General Electric plant. The credited testimony estab-
lishes that Operations Manager Froslear was in the Cin-
Day plant parking lot when he observed Rottinghouse’s
truck return to the plant yard and heard a rattling noise.
Froslear inspected the parked truck and subsequently
took one or more cell phone pictures of a group of cylin-
ders on a pallet in the back of the truck. Froslear did not
get onto the truck bed to physically inspect or touch the
cylinders. One picture he took was introduced into the
record. It shows a row of three large cylinders with a
single smaller cylinder in front. All cylinders are tilted
10 to 15 degrees. Two straps surround the cylinders, the
lower of which is apparently loose. Having a load of
cylinders stacked in this manner and not properly secured
to prevent leaning or coming completely loose undisput-
edly violates DOT safety regulations and Airgas policy.

1 All dates hereafter are in 2015, unless otherwise specified.
2 Allegations of Sec. 8(a)(3) and (4) violations in this charge were
previously withdrawn on August 20. The settlement agreement did not
contain a nonadmissions clause and required the Respondent to post a
remedial notice.
AIRGAS USA, LLC 5
Rottinghouse saw Froslear taking pictures by the truck.
Although Rottinghouse credibly testified that the two
men saw each other, neither of them spoke.3 Froslear
returned to his office after taking the pictures. Looking
out a window, he observed Rottinghouse rearrange and
properly secure the cylinders in an upright position be-
fore driving out of the yard. Froslear testified that if he
saw a “serious safety issue” such as this, he would ensure
that it was corrected before the driver left the lot.4
On the morning of August 4, Froslear emailed a photo
of the cylinders in Rottinghouse’s vehicle to Mark Mac-
Bride, the Respondent’s driver trainer, and asked, “What
do you think about this? Look good to you?” MacBride
replied, “No with the cylinders being offset we would be
hit for insecure load just by how it looks.” The two men
continued to exchange emails. After Froslear clarified
that the condition existed when Rottinghouse pulled into
the yard after his run, MacBride stated, “Unacceptable.”
Froslear then asked, “Where would I find the strongest
language about load securement that drivers are trained
to?” MacBride replied, “[i]n the driver training manual.”
Rottinghouse was not identified as the driver during this
email exchange.
On August 6, Rottinghouse was presented with a writ-
ten warning for the insecure load photographed by
Froslear on August 3. The warning, set forth in full in the
judge’s decision, states in relevant part:
On Monday afternoon, 8/3/15, Clyde Froslear was in
the parking lot when he heard rattling and saw you
pulling into the yard. When he went to investigate the
noise, he saw that you had a pallet on your truck that
was not properly strapped, which was causing the
noise.

3 As further discussed below, the judge discredited Froslear’s testi-
mony that he saw the cylinders fall or tilt as Rottinghouse drove his
truck into the yard and that he did not see Rottinghouse at or near the
truck when inspecting and photographing the cylinders. The judge also
discredited Rottinghouse’s testimony that a sudden stop as he entered
the yard caused the cylinders to shift, and she discredited the testimony
of General Counsel’s witnesses that the cylinders were properly se-
cured.
4 There is some ambiguity in the record as to whether Rottinghouse
drove away immediately after properly restacking and securing the
cylinders. Robert Oestreicher, his stepfather and coworker, accompa-
nied him that day on the run to and from the General Electric plant.
Oestreicher testified that he went into the Cin-Day plant after the truck
was parked. According to him, Rottinghouse came in a few minutes
later and said that Froslear was taking pictures of the truck. When
Oestreicher asked why, Rottinghouse said “there’s some leaning bottles
on the truck at that time. And I [Oestreicher] had mentioned that you’ll
probably get a write up.” The judge did not address this part of Oes-
treicher’s testimony.
You have been trained on the proper way to secure cyl-
inders while being transported. According to the Driv-
er Training Manual, “cylinders must be strapped,
chained or secured to the vehicle so that they do not
move or rattle.” (Italics in original.)
Rottinghouse immediately grieved the discipline pur-
suant to the collective-bargaining agreement between the
Respondent and the Union, asserting that only a verbal
warning was warranted under the Respondent’s existing
disciplinary policy because the rattling noise was caused
by a different group of secured cylinders and Rotting-
house had fixed the leaning cylinders before he left the
yard. The parties discussed the grievance on August 6
and in meetings on September 2 and 23, during each of
which Rottinghouse and his union representatives unsuc-
cessfully sought to persuade Froslear to reduce the writ-
ten warning to a verbal warning. During the September
23 meeting, union agent Ron Butts stated that “[Rotting-
house] thinks the warning should be reduced to a verbal
since this was his first offense.” Froslear noted that it
was not his first offense. When Butts again asked if the
warning could be reduced to a verbal one, Froslear stated
“[n]o because it is not Steve’s first DOT violation and
because of the severity of this event.”
Article 22 of the collective-bargaining agreement be-
tween the Respondent and the Union specifically men-
tions only written warnings and suspensions as disci-
pline. The former remain in an employee’s file for 12
months, and can be used as the basis for progressive dis-
cipline during that period; the latter remain on file for 18
months, and can be the basis for progressive discipline
during that longer period. Although not mentioned in the
parties’ contract, the record undisputedly shows that the
Respondent had a progressive disciplinary past practice
of issuing only verbal warnings for certain minor first-
time offenses,5 followed by written warnings for a sec-

5 On September 4, 2013, employee Hollander received a verbal
warning for the first-time violation of leaving grease on the steering
wheel and knob of a forklift. On September 6, 2013, employee Carlo
received a verbal warning for the first-time violation of failing to wear
the proper gloves when filling high-pressure cylinders. On October 13,
2014, employee Perkins received a verbal warning for the first-time
violation of not wearing a seat belt when operating a fork lift to load
empty cylinders onto his truck. On March 2 and September 21, 2015,
respectively, employees Huff and Kinkade received verbal warnings for
separate first-time violations of clocking in a few minutes prior to the
end of their mandatory off duty period. On March 18, 2015, employee
Oestreicher received a verbal warning for violation of a work rule by
talking on his cell phone while operating a tow motor.
All of the above warnings were documented on the Respondent’s
standard forms. The record also contains a copy of a handwritten ver-
bal warning on blank paper issued to employee Jeffries on May 10,
2012, for an undescribed preventable vehicle backing accident. Plant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ond infraction of a similar kind.6 Froslear explained the
practice with respect to minor offenses in his April 28
meetings with employees. According to Plant Manager
Luehrmann’s credited testimony in this proceeding,
which was consistent with statements in affidavits given
by him and Froslear during the investigation of the
charge in Case 09–CA–152301, Froslear used the hypo-
thetical of an employee’s failure to wear safety glasses to
explain a continuing practice that a manager would first
verbally remind the employee to wear them but “[i]f the
manager then saw the employee committing the same
infraction, the manager would give that employee a writ-
ten warning.”
Neither Article 22 nor the evidence of past practice
shows that the Respondent had a progressive disciplinary
pattern beginning with a verbal warning for serious of-
fenses. On the contrary, documentary evidence shows
that several employees received written warnings for
first-time serious offenses.7 Further, as previously stated,
Rottinghouse’s first discipline of any kind during his
employment was a 3-day suspension for first-time viola-
tion of DOT and Airgas policies by his dishonest and
deliberate completion of DOT paperwork while not on
duty.

Manager Luehrmann signed the warning. The judge discredited
Froslear’s testimony that he was not familiar with this warning.
6 On November 15, 2011, employee Baker received a written warn-
ing because he was observed not wearing safety glasses on consecutive
days. On September 6, 2013, employee Hollander received a written
warning for not wearing a seat belt when operating a fork lift, a day
after he was verbally warned for leaving grease on a forklift.
7 On March 10, 2011, employee Huff received a written warning for
first-time violation of DOT and Airgas safety policies by carrying a
load with one cylinder loose on the truck bed, one pallet of cylinders
unsecured, and another pallet of cylinders improperly secured. On
June 6, 2011, employee Bowman received a written warning for first-
time violation of Airgas backup safety procedures by backing into a car
while making a delivery. On May 17, 2012, employee Baker received
a written warning for first-time violation of DOT and Airgas policies
by failing to provide a complete and correct trip load verification and
hazardous material manifest. On October 8, 2012, Baker received a 3-
day suspension for violation of the DOT safety requirement that he
have a valid medical certificate in his possession while driving his
route. On October 28, 2013, employee Reed received a written warn-
ing for first-time DOT safety violation by talking on his cell phone
while driving. The written warning was reduced on November 12 to a
verbal warning. There is no evidence of the circumstances that resulted
in this change in discipline. On January 25, 2016, employee Huff re-
ceived a written warning for a preventable accident when he hit and
damaged the side of a customer’s building with his truck.
In one other instance, employee Haynes received a written warning
on January 28, 2014, for two episodes of failing to follow proper pre-
filling inspection process, resulting in an operational loss of $2500 in
November 2013 and of $2000 on January 24, 2014. There is no evi-
dence of separate discipline for the earlier episode.
The Judge’s Decision
The judge found that the Respondent acted out of ani-
mus against Rottinghouse for filing charges and partici-
pating in the Board’s investigation of them, and that
Froslear seized upon the cylinder safety issue as a pretext
for issuing a written warning. She relied on inferences
drawn from circumstantial evidence to find both animus
and pretext. Specifically: (1) she found the timing of the
warning, issued a month after Rottinghouse filed the
charge in Case 09–CA–155497, and about 3 weeks after
Froslear and Luehrmann gave Board affidavits relevant
to the prior charge filed in Case 09–CA–152301, to be
“suspicious”; (2) she found that Froslear’s actions on
August 3 demonstrated “a complete lack of concern for
safety,” and that language in his August 4 email ex-
change with MacBride further demonstrated his “out to
get you” attitude; (3) she found that Froslear’s written
warning represented disparate treatment and a departure
from the Respondent’s disciplinary policy because two
other employees (Reed and Jeffries) received only verbal
warnings for what she deemed to be more serious offens-
es; and (4) she found that Froslear offered shifting and
inconsistent rationales for the written warning.
Having found that the Respondent’s reasons for issu-
ing the written warning were pretextual, the judge sum-
marily concluded that the Respondent necessarily failed
to show it would have imposed the same discipline in the
absence of Rottinghouse’s protected activity.
Discussion
The Wright Line motivational test for discriminatory
discharge and discipline allegations requires that the
General Counsel must make “a prima facie showing suf-
ficient to support the inference that protected conduct
was a ‘motivating factor’ in the employer’s deci-
sion.” 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).8 A critical element of this initial
showing is proof of animus against the protected activity
at issue.9 Id. Under certain circumstances, in the ab-

8 The Board has held that the Wright Line motivational test, original-
ly stated for analysis of allegations of Sec. 8(a)(1) and (3) discrimina-
tion, also applies to allegations of Sec. 8(a)(4) discrimination. See,
e.g., Parker Laboratories, Inc., 267 NLRB 1174 (1983), Book Covers,
Inc., 276 NLRB 1488, 1491 (1985), and Great Western Produce, 299
NLRB 1004, 1005 fn. 8 (1990).
9 The Wright Line test also requires that the General Counsel make
an initial showing that an employer has knowledge of the alleged dis-
criminatee’s protected conduct. It is undisputed that the Respondent’s
officials knew that Rottinghouse filed separate charges in Cases 09–
CA–152301 and 09–CA–155497. The judge inferred from the fact that
Froslear and Luehrmann gave Board affidavits in the former case, and
from the absence of evidence that Respondent’s officials did not partic-
AIRGAS USA, LLC 7
sence of direct evidence, proof of animus may be in-
ferred from circumstantial evidence based on the record
as a whole. E.g., Fluor Daniel, Inc., 304 NLRB 970, 970
(1991), enfd. 976 F.2d 744 (11th Cir. 1992). However, I
believe the judge erred in finding that the circumstantial
evidence in this case warrants an inference that animus
against Rottinghouse’s protected Board-related activity
motivated Froslear to issue him a written warning.10
It is important to recognize what is undisputed here:
 Rottinghouse failed to properly secure the group
of 4 cylinders and drove with them in this condition.
This was undisputedly a violation of DOT and Airgas
safety policy that risked cylinders becoming completely
loose and falling off the truck while on the road.
 Even Rottinghouse did not contest that he was
responsible for securing the cylinders and that some form
of discipline was appropriate. He contends only that the
Respondent should have given him a verbal warning ra-
ther than a written one.
 There is no direct evidence of animus borne by
Froslear or any other official of the Respondent against
the filing of unfair labor practice charges or participation
in Board proceedings.
 In addition, there is no credited evidence that
the warning was issued against a background of any in-
dependent unfair labor practices supporting a finding of
animus. The General Counsel does not contend that Rot-
tinghouse’s prior 3-day suspension was unlawfully moti-
vated, and the judge specifically found, based on her
credibility findings, that Froslear did not threaten on
April 28 to change disciplinary policy in response to un-
fair labor practice charge filings.11
The paragraphs below address each of the factors re-
lied upon by the judge, based on circumstantial evidence,
which prompted the judge to find that the General Coun-
sel met the initial Wright Line burden and that the Re-
spondent’s reliance on Rottinghouse’s safety violation
was pretextual.

ipate in investigation in the latter, that they should have known Rot-
tinghouse participated as well in Board investigation of both charges. I
find no need to pass on this inference, which is unnecessary to the
Wright Line analysis of the knowledge factor.
10 Inasmuch as my colleagues essentially reiterate the judge’s analy-
sis, there is little need for separate discussion of their opinion.
11 I note that in a subsequent unfair labor practice proceeding involv-
ing the same parties, a different judge found that Froslear did make the
alleged April 28 threat. Airgas USA, LLC, 366 NLRB No. 92, slip op.
at 3 (2018). That finding is not a part of the record in this case. Even if
it were, I believe this background evidence would be insufficient to
support finding that the General Counsel met the initial Wright Line
burden of proving that animus against Rottinghouse’s Board-related
activity motivated his August 6 warning.
1. Credibility findings are not dispositive of the moti-
vational issue. The Respondent did not challenge any of
the judge’s credibility findings supporting her finding of
discriminatory motivation, even though they were not
predominately based on her observation of witnesses’
demeanor. Accordingly, I accept the judge’s findings
that Froslear did not observe cylinders fall or tilt and that
he did see Rottinghouse in the vicinity of his truck on
August 3 but chose not to speak with him.12 However,
there are limitations on the extent to which credibility
findings can prove unlawful motivation associated with
an unfair labor practice charge. As the Board long ago
stated, “the question of motivation where an alleged un-
lawful discharge [or other adverse action] is involved is
not one to be answered by crediting or discrediting a
respondent’s professed reason for the discharge, and
thus we cannot accept every credibility finding by a trier
of fact as dispositive of that issue. Rather, that question
is one to be resolved by a determination based on con-
sideration and weighing of all the relevant evidence.”13
In this case, the judge’s finding that Froslear was “out
to get” Rottinghouse and seized upon the cylinder inci-
dent as a pretext for doing so cannot be reviewed simply
as the product of her credibility findings. The Board
must instead consider and weigh all of the evidence rele-
vant to the Respondent’s motivation.
2. The timing of the warning was not suspicious. The
judge inferred animus from the fact that Froslear issued
the August 6 warning a month after Rottinghouse filed
the charge in Case 09–CA–155497 alleging that his 3-
day suspension violated Section 8(a)(4) of the Act and
about 3 weeks after Froslear and Luehrmann gave Board
affidavits relevant to the prior charge filed in Case 09–
CA–152301. It is well established that an inference of
animus may in certain circumstances be based in part on
the timing of discipline relative to an employee’s pro-
tected activity. The operative word is “may,” not
“must,” and no inference is warranted based on the coin-
cidental sequence of events in this case. The determina-
tive intervening event proximate to the warning was Rot-
tinghouse’s own observed and undisputed safety viola-
tion in failing to secure the cylinder load 3 days before
receiving the warning, not his filing of a charge with the
Board a month earlier or the subsequent taking of Board
affidavits from company officials.

12 As discussed below, I would not “affirm” her purported discredit-
ing of Froslear’s testimony that he would not have let Rottinghouse
leave the yard without fixing the safety problem and that he issued the
warning letter as a form of progressive discipline.
13 Charles Batchelder Company, 250 NLRB 89, 89–90 (1980) (em-
phasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
3. Froslear’s actions on August 3 and 4 were objec-
tively logical. The judge inferred an intent to punish
Rottinghouse for protected conduct from Froslear’s
“complete lack of concern” for safety. She based this on
Froslear’s failure to address the unsecured cylinder issue
with Rottinghouse directly and immediately, his failure
to physically examine the cylinders to see if they were
loose, his willingness to watch Rottinghouse from inside
the plant, the absence of any evidence that Froslear
would have stopped him from driving out of the yard
without having properly straightened and resecured the
cylinders, and his email inquiry to driver trainer Mac-
Bride about where he could find the “strongest language
about load securement that drivers are trained to.”
The entirety of this part of the judge’s analysis is im-
permissibly speculative and subjective, imposing her
own judgment of proper safety procedures on the Re-
spondent without any proof from the General Counsel of
their objective necessity or a departure from the Re-
spondent’s own past practice. Most egregious was the
judge’s finding that there was no evidence leading her to
believe Froslear’s testimony that he would not have let
Rottinghouse drive out of the yard without addressing the
safety issue. This was total speculation about a hypothet-
ical alternative to what actually took place. There is
nothing in this actual factual scenario to suggest that
Froslear evinced a lack of concern for safety by waiting a
short while to observe what Rottinghouse would do or
that he could not see Rottinghouse secure the cylinders
from his observation spot inside the plant. Rottinghouse
saw Froslear taking pictures and, without Froslear having
to speak with him (or Rottinghouse asking Froslear if
there was a problem), inspected his load and understood
that he needed to straighten and secure the cylinders be-
fore driving out of the yard. He credibly testified that he
did so. When Froslear saw to his satisfaction that Rot-
tinghouse properly secured the cylinders—again, there is
no evidence that he could not see this—there was no rea-
son for him to stop Rottinghouse from driving out of the
yard.
There also is no basis for the inference drawn by the
judge that Froslear’s failure to physically examine the
cylinders demonstrated his lack of concern for safety.
Froslear undisputedly observed and photographed unse-
cured cylinders. He did not need to physically examine
them to verify this as a safety violation. Instead, he logi-
cally sought the expert opinion of driver trainer Mac-
Bride, who confirmed a DOT violation and “unaccepta-
ble” conduct based solely on his review of the picture
Froslear emailed to him. For that matter, coworker Oes-
treicher testified that, sight unseen, he told Rottinghouse
he would probably be written up after Rottinghouse said
that Froslear was taking pictures of loose cylinders.
The judge’s analysis also suggests that Froslear’s “out
to get you” attitude towards Rottinghouse is shown by
his “insistence” in his August 4 email to MacBride, that
the driver trainer find the “strongest” language about
securing cylinders. Froslear did not insist on anything.
His email inquired where he, not MacBride, could find
the “strongest” language. MacBride referred Froslear to
the driver training manual, and Froslear quoted appropri-
ate language from it in the warning letter. Moreover,
what is irrational or suspicious about a manager asking
the company expert on driver training and safety where
the manager could find the “strongest language” support-
ing the expert’s opinion that an unidentified driver en-
gaged in the “unacceptable” action of transporting an
insecure load? Apparently, the judge subjectively be-
lieved that use of the “strongest” modifier exposed
Froslear’s intent to impose more severe discipline than
was warranted, but the record falls woefully short of ob-
jectively proving that this must have been so.14
4. There was no disparate treatment. In circumstanc-
es where the General Counsel relies on evidence of dis-
parate treatment to meet the initial Wright Line burden of
proving that discipline was motivated by animus against
protected activity, the Board has stated that “evidence of
a ‘blatant disparity is sufficient to support a prima facie
case of discrimination.’” New Otani Hotel & Garden,
325 NLRB 928 fn. 2 (1998), quoting Fluor Daniel, 304
NLRB at 970–971.15 The evidence here falls far short of
proving a “blatant disparity” in giving Rottinghouse a
written warning rather than a verbal warning. The

14 When the General Counsel asked Froslear why he was asking for
the strongest language, Froslear answered, “I’m not – since Mark Mac-
Bride is a driver’s trainer, he’s a resource for me as to what are exactly
other drivers taught to. I wanted to make sure that I didn’t just guess at
what the material would have been to address this problem.” Asked
again why he was looking for the strongest language, Froslear replied,
“Key words: ‘Nesting, secure, no rattling.’ Those types of things. To
make sure that when we teach somebody they fully understand, it has to
be secure. And secure means a lot of things.” The judge did not specif-
ically address this testimony, which seems to provide a reasonable
explanation for Froslear’s inquiry. Even if she implicitly discredited
that testimony, the record does not support drawing a contrary infer-
ence that the search for “strongest language” indicated Froslear’s intent
to impose more severe discipline than was warranted.
15 My colleagues correctly state that a lesser showing of disparity
may suffice to meet the General Counsel’s initial Wright Line burden of
proving animus when viewed in conjunction with other evidentiary
factors. As stated in this opinion, I find there is no other credible and
objective supporting evidence establishing animus attributable to the
Respondent. Moreover, as stated below, I find that the isolated instance
of inconsistency in the Respondent’s prior disciplinary practice is insuf-
ficient to prove any significant disparity, much less a blatant disparity
that might standing alone meet the Wright Line burden.
AIRGAS USA, LLC 9
judge’s contrary view suffers from the same speculative
and subjective flaws as discussed above.
Rottinghouse received the same written warning for
the same safety violation as Huff received in 2011. The
judge rejected the notion that the incidents were compa-
rable and deserved the same level of discipline because
cylinders were less secure or completely loose in Huff’s
truck and were only leaning slightly in Froslear’s truck.
There is not a scintilla of record evidence that the DOT
or Airgas makes this distinction in defining what consti-
tutes an unsecure cylinder safety violation or what the
disciplinary consequences should be for such a violation.
In fact, the only evidence is Froslear’s uncontradicted
testimony that no distinction is made.16 Even accepting
the judge’s unsupported subjective view that the Huff
and Rottinghouse violations are distinguishable, the fact
is that the Respondent additionally required Hull to re-
view driver safety requirements for securing cylinders
with his supervisor and to ride with a driver trainer. Rot-
tinghouse was warned but not required to take any addi-
tional remedial training. The judge somehow twists this
fact into alleged further evidence of disparate treatment,
apparently reasoning that, if the remedial training re-
quirements (which are not shown to be disciplinary)
were not imposed on Rottinghouse, he should not have
received a written warning at all.
The judge also found disparate treatment based on the
Respondent’s issuance of verbal warnings to two drivers
for incidents that she viewed as more serious than Rot-
tinghouse’s. She found it “incredulous” that Reed re-
ceived a verbal warning for talking on the phone while
driving, a DOT safety violation that could have resulted
in substantial fines for driver and employer. As previ-
ously noted, Froslear initially gave Reed a written warn-
ing for this incident. Consequently, he and Rottinghouse
received the same discipline for a serious safety viola-
tion. Reed’s discipline was later reduced to a verbal
warning a month later. There is no record explanation of
the circumstances leading to this reduction in discipline.
It was the General Counsel’s burden, not the Respond-
ent’s, to produce this evidence in support of his prima
facie case. Absent such evidence, there is no basis to
infer that the failure to make the same reduction in Rot-
tinghouse’s discipline was disparate treatment. Moreo-
ver, even comparing the written warning given to Rot-
tinghouse to the oral warning ultimately given to Reed,

16 “Q. (General Counsel) And are you saying that a loose 12 cylinder –
completely loose, not secure – a pallet with unsecured cylinders and a
pallet containing liquid containers only secured with one strap is
equal to what Mr. Rottinghouse – to this?
A. (Froslear) I do. Unsecured is unsecured.”
the judge’s finding of disparate treatment rests on her
subjective view that Reed’s safety violation was more
serious than Rottinghouse’s. This finding contravenes
the well-established doctrine that “[t]he decision of what
type of disciplinary action to impose is fundamentally a
management function,”17 and that “Congress never in-
tended to authorize the Board to question the reasonable-
ness of any managerial decision nor to substitute its opin-
ion for that of an employer in the management of a com-
pany or business, whether the decision of the employer is
reasonable or unreasonable, too harsh or too lenient.”18
As for the verbal warning issued in 2012 to Jeffries for
a preventable vehicle backing accident, the Respondent
admits in its brief in support of exceptions that the failure
to give him a written warning was a mistake. Indeed,
less than a year earlier, the Respondent gave employee
Bowman a written warning for a backing accident. Still,
the failure to give Jeffries a written warning represents a
single incident of inconsistent discipline in record exhib-
its covering a 5-year period. This incident is not suffi-
cient to prove any real disparity in disciplinary practice,
and it cannot possibly suffice to prove the requisite “bla-
tant disparity” in treatment of Rottinghouse’s safety vio-
lation that would, standing alone, warrant an inference of
animus in support of the General Counsel’s prima facie
case.
5. Froslear did not offer shifting or inconsistent rea-
sons for discipline. Froslear did not mention Rotting-
house’s prior DOT violation—the one for which he re-
ceived a 3-day suspension—in the written warning, or in
the discussion of that warning and its grievance with
Rottinghouse and his union representatives on August 6
and September 2. He had no apparent reason to do so on
those occasions, inasmuch as (1) he regarded the failure
to properly secure cylinders to be a serious safety viola-
tion warranting a written warning even for a first offense,
and (2) according to his credited notes of these discus-
sions, no one suggested on Rottinghouse’s behalf that the
warning should be reduced to verbal because it was a
first offense. Union agent Butts raised this argument for
the first time during the grievance meeting on September
23. Froslear rejected it, stating “[n]o because it is not
Steve’s first DOT violation and because of the severity
of this event.” Contrary to the judge, this response, and
its reiteration during Froslear’s testimony, did not repre-
sent either a shifting or inconsistent reason for the writ-

17 Neptco, Inc., 346 NLRB 18, 20 fn. 15 (2005) (quoting Midwest
Regional Joint Board v. NLRB, 564 F.2d 434 (D.C. Cir. 1977)).
18 Id. at 20 fn. 16 (quoting NLRB v. Florida Steel Corp., 586 F.2d
436, 444–445 (5th Cir. 1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ten warning.19 From August 6 on, including throughout
this proceeding, the Respondent has consistently main-
tained that the written warning was appropriate for the
first-time offense at issue. Further, as discussed above,
the record shows that the Respondent issued a written
warning to Huff for the same DOT safety violation and
that it also issued written warnings and even imposed
suspensions for other first-time serious safety violations.
Froslear’s reply to Butts on September 23 represented no
shift or inconsistency in the rationale for Rottinghouse’s
warning. It only refuted Butts’ claim, not previously
made, that the August 3 unsecured cylinder incident was
Rottinghouse’s first DOT safety offense.
For that matter, Butts’ first offense claim on Septem-
ber 23 at least implicitly suggests his view that a written
warning would be appropriate for a second DOT safety
violation, even if not for a first violation. I note that the
Regional Director’s dismissal of the charge in Case 09–
CA–155497 one day earlier, on September 22, removed
any doubt that the suspension of Rottinghouse for a prior
DOT violation was lawful.
Conclusion
I believe a review of the entire record shows that
Froslear legitimately relied solely on Rottinghouse’s se-
rious safety violation when issuing a written warning; but
even assuming that the judge correctly found Froslear
was “out to get” Rottinghouse, I also believe the General
Counsel failed to meet his initial Wright Line burden of
proving that Froslear was motivated to do so by animus
against Rottinghouse’s protected recourse to the Board’s
processes. Under our Act, “Management can discharge
for good cause, bad cause, or no cause at all. It has, as the
master of its own business affairs, complete freedom
with but one specific, definite qualification: it may not
discharge [or discipline] when the real motivating pur-
pose is to do that which [the Act] forbids.”20 Further,
“[w]here the employer has proper cause for discharging
an employee, the Board may not rely on scant evidence

19 The judge stated that she did not believe Froslear’s testimony that
he issued the written warning as a form of progressive discipline. This
was clear error because Froslear never testified that he did so, even
when pressed by the General Counsel and the judge. In response to a
leading question from the General Counsel as to whether Froslear told
Rottinghouse or Perkins “that this is a written warning because of the
progressive discipline policy,” Froslear replied, “I mentioned to him
that it wasn’t his first offense. And the severity of it warranted a writ-
ten warning.” (Emphasis added.) When the General Counsel repeated,
“Did you specifically mention progressive discipline,” Froslear replied,
“I mentioned that this wasn’t his first offense.” The judge then directed
Froslear to answer this question “yes or no.” Froslear replied, “Pro-
gressive? I don’t remember.”
20 Anheuser-Busch, 351 NLRB 644, 647 (2007); Taracorp, 273
NLRB 221, 222 fn. 8 (1984) (quoting NLRB v. Columbus Marble
Works, 233 F.2d 406, 413 (5th Cir. 1956)).
and repeated inferences to make a finding that places the
Board in the position of substituting its own ideas of
business management for those of the employer.”21
Though armed with the best intentions, I believe my col-
leagues and the judge in this case have impermissibly
substituted their judgment as to what type of discipline
was warranted based on Rottinghouse’s deficient per-
formance.
In my view, the record strongly supports the same
conclusion here as made by the General Counsel in af-
firming dismissal of Rottinghouse’s charge contesting his
prior suspension—specifically, “there was no objective
evidence of hostility linking the Employer’s decision to
your participation in Board proceedings.” Accordingly,
I respectfully dissent from my colleagues’ adoption of
the judge’s finding that Rottinghouse’s written warning
was unlawful, and I believe the complaint should be dis-
missed.
Dated, Washington, D.C. June 13, 2018
______________________________________
Marvin E. Kaplan, Member
Erik P. Brinker, Esq., for the General Counsel.
Michael C. Murphy, Esq. (Radnor, PA), for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case
was tried in Cincinnati, Ohio, on February 16, 2016. Steven
Wayne Rottinghouse, Jr. (Rottinghouse), the Charging Party,
filed the charge on August 24, 2015.1 The General Counsel
issued the complaint on November 18. In its December 7 an-
swer, Airgas USA, LLC (Respondent/Airgas) generally denied
all alleged violations of the Act.2
The complaint alleges that Respondent violated Section
8(a)(4) and (1) of the National Labor Relations Act (the Act)
when it issued a written warning to Rottinghouse in retaliation
for providing affidavit testimony and filing charges in other
cases before the National Labor Relations Board (the Board).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware limited liability company, has been
engaged in the retail sale and distribution of industrial gases

21 NLRB v. Blue Bell, Inc., 219 F.2d 796, 798 (5th Cir. 1955) (em-
phasis added).
1 All dates are in 2015 unless otherwise indicated.
2 For brevity purposes, counsel for the General Counsel will be re-
ferred to as the “General Counsel.”
AIRGAS USA, LLC 11
and related products at its office and facility located at 10031
Cincinnati-Dayton Road, in Cincinnati, Ohio (Respondent’s
facility/Cin-Day plant). In conducting its business during the
12-month period ending on November 1, Respondent derived
gross revenues in excess of $500,000. During the same period,
Respondent has also purchased and received at its facility
goods valued in excess of $50,000 directly from points outside
the State of Ohio. Respondent admits by stipulation, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. (Tr. 11.)3
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Airgas management
Respondent has operated its sale and distribution of industri-
al gases business at its Cin-Day plant for about 8 years. At all
relevant times, Clyde Froslear (Froslear) has been Respond-
ent’s operations manager over several of Respondent’s facili-
ties, including the Cin-Day plant which is central to this case.
He oversees all operations including, but not necessarily limited
to, production, distribution, safety, labor relations and employ-
ee relations. David Luehrmann (Luehrmann) is the Cin-Day
plant manager, who directly manages the day-to-day plant ac-
tivities and employees. Both he and Froslear discipline em-
ployees for any safety or other violations, but he generally does
so with Froslear’s input and approval. There is no dispute that
Froslear approves discipline and tries to attend most discipli-
nary meetings. Along with his managers, he typically signs or
initials most discipline.4
2. Airgas drivers
Airgas hires drivers to transport various industrial gases on
trucks with trailers. These compressed gases are housed in
cylinder tanks (also referred to as cylinders, tanks, and some-
times bottles). Drivers must secure them inside metal cages or
pallets with straps and ratchets; and fasten them onto the trail-
ers. However, some of the cylinders are preassembled by other
employees (assemblers) into 6 or 12-pack cradles (also referred
to as packs or banks), and bolted together and secured inside
their own cages. The drivers are not responsible for securing
the cylinders/tanks inside these cradles, but must make sure that
the cradles are properly secured to the trailers. Employees
therefore are not disciplined if the cylinders inside these cradles
or packs sometimes move or rattle.
According to Froslear and Respondent’s driver trainer, Mark
MacBride (MacBride), the drivers are supposed to properly
“nest” the cylinders (which are not preassembled in 6 or 12-
pack cradles) and secure them with two straps so that each one

3 Abbreviations used in this decision are as follows: “Tr.” for Tran-
script; “GC Exh.” for General Counsel Exhibit; “R. Exh.” for Respond-
ent Exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for General Coun-
sel’s Brief; and “R Br.” for Respondent’s Brief.
4 The parties also stipulated that Froslear and Luehrmann are Re-
spondent’s supervisors and agents within the meaning of Sec. 2(11) and
(13) of the Act. (Tr. 11.) The parties’ other stipulations are set forth at
Jt. Exhs. 1–10.
is nesting tightly against another.5 Respondent’s drivers are
either assigned city routes within a 50-mile radius each way
from the plant, or they are assigned long distance routes over
50 miles each way. City drivers must check to make sure their
loads are secure at each stop, while long distance drivers must
do so at least every 50 miles.
The Department of Transportation (DOT) regulates the man-
ner in which Respondent and its drivers transport and secure
cylinders. According to Respondent’s driver training manual
(revised December 1, 2014), this “means that cylinders must be
strapped, chained or secured to the vehicle so that they do not
move or rattle.” Other relevant parts of this manual require
that:
Small cylinders must be secured as well. You cannot transport
cylinders if they have the ability to roll around, such as in a
box or cage. Special care must be taken when transporting
small cylinders. Please work with your supervisor to correct
any cylinder transportation problems.
(GC Exh. 6, pp. 3–7.) In various safety meetings, employees
viewed several power point presentations on pallet, strap and
load handling and securement. Relevant portions of those slides
focused on the importance of pallet handling and general haz-
ards associated with it such as loose cylinders falling and unse-
cured loads during transportation. One of the slides on physical
loading and unloading dealt with the use of “proper cylinder
nesting techniques” and use of “the back brace when strapping
small quantities of cylinders to secure the load.” (GC Exh. 6,
pp. 7–11, 15–17.)
Respondent also provided employees with safety training on
compliance, safety and accountability (CSA) in 2014. Com-
mercial motor vehicle (CMV) drivers, such as Respondent’s
employees, along with their employers, receive citations and
fines during DOT and other law enforcement roadside stops for
violating DOT regulations and/or committing one of the “Seven
Basics” of CSA. One of those basics is “Cargo Related (Load
Securement), under which “[f]ailing to properly secure the load
. . .” is listed. (See GC Exh. 6, pp. 5–12,)
3. Charging Party Rottinghouse and his protected activities
Charging party Rottinghouse is one of Respondent’s experi-
enced commercial drivers at the Cin-Day plant, who drives
both city and longer distance routes. The record reveals that
prior to late June 2015, he maintained good safety and driving
records, with no DOT or Airgas rule violations. Training rec-
ords show that he attended and satisfactorily completed the
various safety trainings and presentations provided by Re-
spondent, including those described above on proper load se-
curement. (GC Exh. 6.)
Rottinghouse was an active member of the Union. In addi-
tion, prior to the underlying charge in this case, he filed two
other charges with the Board. In the first, Case 09–CA–

5 MacBride trains new Airgas drivers on policies and safety proce-
dures. He also rides with all drivers, including the experienced ones,
each year and reviews policies and procedures dealing with safety,
DOT compliance and policy updates. At the end of each trip, he points
out any problem areas that drivers need to work on, and documents his
review. (Tr. 193–194.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
152301, filed on May 14, 2015, he alleged that in April safety
meetings, Froslear threatened to change employees’ terms and
conditions of employment because of his filed grievances and
Board charges. More specifically, at issue were Froslear’s
comments about disciplinary policy during two April 28 em-
ployee safety meetings. Froslear and Luehrmann provided
affidavit testimony in that case (on July 13), which was subse-
quently resolved on September 9, 2015. (Jt. Exh. 5; GC Exh.
2).6 In the second, 09–CA–155497, filed on July 7, 2015, he
alleged that Respondent suspended him for 3 days in retaliation
for protected union activities and filing charges with the Board.
Respondent suspended him for dishonesty and deliberate, se-
vere violation of Airgas and Department of Transportation
(DOT) policy when on June 22, he completed DOT paperwork
off the clock. Froslear testified that he would have terminated
Rottinghouse for this offense, but instead followed his legal
counsel’s advice not to do so. On September 22, 2015, the
Regional Director dismissed this charge due to insufficient
evidence to establish a violation of the Act. (Jt. Exh. 6.) On
November 5, the Board denied Rottinghouse’s appeal of that
dismissal. (Id.)
Rottinghouse and Froslear also attended a grievance meeting
on August 5 concerning his prior 3-day suspension.7 (Tr. 61–
62; 147–148.)
B. August 3, 2015 Incident, Its Aftermath and Discipline
1. August 3 incident
On the morning of August 3, Rottinghouse left the Cin-Day
plant in his truck along with a coworker, Robert Oestreicher.8
They went to a General Electric (GE) facility, and while there,
made several stops to pick up empty cylinders. One of those
stops at GE was a “training stop,” where Oestreicher showed
him how to lift a 12-pack cradle of cylinders with a crane.9
Rottinghouse also carried at least one other load of cylinders,
attached to a metal pallet with two straps, on his truck. When
they left GE, they returned to Respondent’s facility.
Upon reaching the Cyn-Day plant, Rottinghouse stopped his
truck, got out and opened the entrance gate. After returning to
his truck and driving forward a bit, the gate blew back towards
his truck, causing him to abruptly hit the brakes in order to

6 On August 20, the Regional Director approved withdrawal of the
8(a)(3) and (4) charge allegations. The settlement included a notice
posting that Respondent would not “threaten to change” its discipline
policy due to prior charges or participation in the Board process; it did
not contain a nonadmissions clause. (Jt. Exh. 5(d).)
7 Froslear recalled that such a meeting took place, but not the date
on which it occurred. Since he could not rebut that it did occur on
August 5, I credit Rottinghouse’s testimony that it did. (Tr. 61–62;
147–148.)
8 When asked on cross-examination, Oestreicher admitted that he
was not only Rottinghouse’s co-worker, but also his stepfather. (Tr.
177.)
9 Froslear testified that he did not know about Oestreicher riding
with Rottinghouse on August 3, but no one disputed that Oestreicher
did so. (Tr. 38–39, 134–137, 168.)
avoid hitting the gate.10 At that point, without having to get
out, he pushed the gate back away from his truck, and proceed-
ed through the entrance and parked his truck in Cyn-Day
plant’s yard close to the building. Both he and Oestreicher left
the truck and entered the plant/building.
Rottinghouse claimed that once inside, he saw and made eye
contact with Froslear, who was about 20 feet away from where
he (Rottinghouse) stood in the break room near the mailboxes.
They did not speak. After using the restroom, he proceeded
back out to his truck, and saw Froslear taking a picture with his
phone. He testified that he walked around the driver’s side to
the back of the truck to see what Froslear was looking at. He
stated that as he approached the back of the truck from driver’s
side, he and Froslear, who was about 10–15 feet away on the
rear passenger side, made eye contact with each other. He fur-
ther testified that as he continued on to the rear passenger side
to the truck’s lift controls, Froslear walked back into the build-
ing without saying a word. It is undisputed that next, Rotting-
house climbed onto the back of his truck, and straightened and
re-strapped four leaning cylinders. After doing so, he got into
his truck, left the Cyn-Day plant and completed his route. (Tr.
139–144, 146.)
According to Froslear, he was standing by his car in the
parking lot near the plant entrance when he witnessed Rotting-
house pull into the driveway, stop to open the gate and continue
on to park in the yard.11 He testified that at the same time, he
also “heard . . . rattling” and “witnessed cylinders falling” on
the back of Rottinghouse’s truck when it “came to a stop.”
When asked if he actually saw them fall, Froslear admitted that
they did not fall down, but “tilted” over 10–15 degrees. (Tr.
28–29.) He testified that “[w]hen [Rottinghouse] entered the
yard until he came to a stop, they [the cylinders] were standing
straight up. When he came to a stop, they tilted.” When asked
exactly when he saw the cylinders move, he responded that “I
saw them tilt when he came to a stop in the yard,” and not at
the gate. (Tr. 31–32, 34.) Next, Froslear went back inside the
building, retrieved his cell phone and safety glasses and pro-
ceeded out to photograph the cylinders on the back of Rotting-
house’s truck. Froslear never physically examined or even
touched the cylinders, but testified that he did not need to do so
because he had seen them move. Afterwards, he went back
inside the plant where he observed Rottinghouse (from a win-
dow) fix the leaning cylinders. (Tr. 28–30, 37–38, 65.)
Froslear denied seeing Rottinghouse at any time after he
[Rottinghouse] parked his truck in the yard. He testified that he
was too busy concentrating on getting his camera and safety
glasses; he also claimed not to have known where Rottinghouse
was. He admitted, however, that he saw no need to try to find

10 I credit Rottinghouse’s testimony that he made an abrupt, “hard”
stop at the entrance gate. Oestreicher supported it, stating that Rotting-
house “stepped on his brakes real hard,” and had to reopen the entrance
gate. (Tr. 167–169.) Froslear denied seeing Rottinghouse make an
abrupt or hard stop at the gate, but did not dispute that it might have
occurred. (Tr. 30–35; Jt. Exh. 9.)
11 Both Oestreicher and Rottinghouse testified that they observed
Froslear standing by his car when they pulled into the plant. (Tr. 137–
138, 170.)
AIRGAS USA, LLC 13
or talk to him at any time on August 3 since he witnessed the
cylinders tilt and Rottinghouse sufficiently secure them. (Tr.
38–39, 42). In fact, he swore that he would not have allowed a
driver to return to the road with a “serious safety issue” without
first ensuring that it had been corrected. (Tr. 37.) For reasons
discussed below, I discredit Froslear’s testimony that he did not
see or know where Rottinghouse was, and that he actually wit-
nessed the cylinders tilt over.
There is no dispute that the photograph that Froslear took ac-
curately depicts the condition of the leaning cylinders in ques-
tion after Froslear parked his truck in the Cyn-Day plant’s yard.
It reflects four cylinders leaning slightly to the left—three tall
cylinders in the back row with one shorter, smaller leaning
against the front of two of the taller ones. It also shows two
straps, fastened with ratchets, around the cylinders. The lower
strap, however, drapes down the front of the shorter, smaller
cylinder in front. (See Jt. Exh. 2.)
2. Froslear’s actions on August 4
On August 4, Froslear sent an email to Respondent’s driver
trainer, MacBride, with an attached photograph of the leaning
cylinders on the back of Rottinghouse’s truck. He asked Mac-
Bride “What do you think about this? Look good to you?”
MacBride responded, “[n]o with the cylinders being offset we
would be hit for insecure load just by how it looks. Where is
this truck.” Froslear replied, “CinDay.” MacBride stated, “[n]ot
good, did the driver catch it before leaving,” to which Froslear
replied “I saw it when he pulled into the yard.” MacBride then
asked “Did it get fixed before leaving,” and MacBride respond-
ed, “[t]his is the way it was when he pulled in after his run.”
MacBride emailed back “Unacceptable” Froslear then asked
“[w]here would I find the strongest language about load se-
curement that drivers are trained to?” MacBride told him that
he could find such “[i]n the driver training manual.” Finally,
Froslear told MacBride to call him when he had time, and “to
zoom in on how the cylinders were strapped down.” During
this email exchange, Froslear did not tell MacBride that Rot-
tinghouse had been driving the truck in question, nor did he tell
him that Rottinghouse fixed his load before returning to the
road. (Tr. 116–117; Jt. Exh. 3.)
3. Rottinghouse’s discipline and grievance meetings12
August 6 discipline meeting
On August 6, Froslear and Luehrmann met with Rotting-
house and issued him a written warning letter (dated August 5)
for failing to secure cylinders.13 Barry Perkins (Perkins), union
representative, attended the meeting on Rottinghouse’s behalf.
The warning letter stated:
On Monday afternoon, 8/3/15, Clyde Froslear was in the
parking lot when he heard rattling and saw you pulling into

12 Froslear took notes of each of these meetings, which were submit-
ted by the parties as joint exhibits (Jt. Exhs. 7, 9–10.) I credit these
notes as being an accurate version of what was said during the meet-
ings. Neither Rottinghouse nor his union representative, Barry Perkins,
disputed the accuracy or contents of Froslear’s notes.
13 The parties stipulated that the warning letter, dated August 5, was
issued on August 6.
the yard. When he went to investigate the noise, he saw that
you had a pallet on your truck that was not properly strapped,
which was causing the noise.
You have been trained on the proper way to secure cylinders
while being transported. According to the Driver Training
Manual, ‘cylinders must be strapped, chained or secured to
the vehicle so that they do not move or rattle.’
Recommended correction action:
As an Airgas Driver, you are expected to take personal re-
sponsibility for creating and maintaining a safe environment
and to perform your job with the understanding that working
safely is a condition of your employment with Airgas. For
this reason you are expected to properly secure cylinders
when transporting them, as well as follow all other DOT pro-
cedures while performing any other duties related to your job.
Consequences of not following recommended action:
As you know, Airgas Great Lakes maintains strict policies to
ensure safety in the workplace and to ensure the safety of our
associates, customers, and the general public. It is your re-
sponsibility to follow Airgas’ standard safety policies and
procedures as well as other policies of the Company and to
role model the behaviors that support our policies. You are an
experienced employee and we value your contributions to the
company and expect immediate and consistent improvement
in following these policies and practices. Further incidents
will result in additional disciplinary action up to and including
discharge.
Rottinghouse refused to sign the warning letter. Luehrmann
signed it; Perkins signed as a witness; and Froslear initialed it.
(Jt. Exh. 1;. 4, p. 19.)
During that meeting, however, Froslear explained that when
he saw Rottinghouse pulling into the yard, he “heard loose
cylinders rattling and when [Rottinghouse] came to a stop saw
them move, fall forward.” Rottinghouse told Froslear that he
saw him taking pictures, and asked why he (Froslear) did not
come to get him. Froslear responded that he “took the pictures
so [he] could send them to our driver trainer Mark MacBride
for his opinion.” Rottinghouse said that the “rattling noise was
coming from a HY bank.”14 Froslear asked why he decided to
return to the trailer and fix the leaning pallet of cylinders if the
noise was coming from a HY tank. Rottinghouse responded,
“[b]ecause I saw you taking pictures.” Then, Froslear asked
how Rottinghouse knew that he “was not taking pictures of the
tailgate or the trailer.” Next, Rottinghouse asked to see the
pictures. Froslear answered that he would “be glad to, but not
right now.” He further stated that “[t]he picture will show the
same thing you saw and the reason you got back up on the trail-
er to fix. If you are arguing that the pallet was not the cause of
the rattling noise, why did you get back up on the trailer, rear-
range the straps and tighten the load down?” Then, Rotting-
house refused to sign the letter, and the meeting ended. (Jt.

14 HY bank refers to a 12-pack cradle of hydrogen cylinders. No
one disputed Rottinghouse’s testimony that these cylinders were empty
when he returned to the Cyn-Day plant on August 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Exh. 7.)
Several minutes later, Perkins returned to Froslear’s office,
presented him with Rottinghouse’s grievance #29582 filed with
Local 100, and asked to see the pictures that he had taken.
Froslear showed him the pictures. According to Froslear’s
notes, both he and Perkins “agreed the pictures show the cylin-
der[s] were loose and could understand why Steve fixed them
before leaving.” (Id.)
The grievance/claim stated in relevant part the following:
[O]n 8-6-15 Received write up for ‘loose cylinders’ on truck
8–3–15. Written warning issued. Only Should Be Verbal.
Cylinders are leaning a little bit But not Rattle. Rattling cyl-
inders were from Hy C23 with loose cyls. Requested pictures
for union. Refuse to show pictures . . . Leaning cyls were
fixed Before leaving yard written warning is excessive,
Should Be Removed
(Jt. Exh. 8.)
September 2 grievance meeting
Rottinghouse and Perkins met with Luehrmann and Froslear
again on September 2. Rottinghouse explained why he should
not have received a warning letter. He stated that “[w]hile
pulling into the yard the gate started to close. I hit my brakes
which cause the cylinder to lean forward. I got up on the trailer
and fixed the load before leaving. This all happened in the yard
and I should not have received a warning letter.” Froslear re-
sponded:
Not true. You had just come off the road and the cylinders
were not strapped securely. So it didn’t happen in the yard. If
they were strapped securely hitting the brakes would not
cause cylinders to lean. I have seen trailers turned over and
cylinders still strapped in place. So I don’t think hitting
brakes would do this, do you?
(Id.) Rottinghouse replied that “[i]t’s possible.”
When asked by Froslear what part of article 22 of the CBA
Respondent violated, Perkins responded that the “warning letter
should have been a verbal according to the contract.” Froslear
pointed out that article 22, paragraph A states that a “Written
warning notice stating violation will be given to employee.”
Rottinghouse repeated that the written warning “is too severe; it
should have been a verbal.” When Froslear refused to change
the discipline to a verbal warning, the meeting ended. (Jt. Exh.
9.)
September 23 grievance meeting
The parties met once more on September 23, with Ron Butts,
another union representative, and Barry Perkins representing
Rottinghouse, and Luehrmann and Froslear for Respondent.
Butts read the grievance and said that they were there “to re-
duce this to a verbal.” Froslear asked Butts to read article 22,
paragraph A. At that point, Rottinghouse interrupted, stating
that “the rattling was not the cylinders in question but cylinder
in a hydrogen bank.” Froslear’s notes reflected his response:
Explained to RB [Ron Butts] since he is not familiar with a
cylinder bank, that there might have been additional rattling
coming from the hydrogen bank but the cylinder[s] are se-
cured inside a steel cage. They are very secure and would not
come out and possibly fall on to the highway. The cylinders
we are talking about today were loose and could fall off the
trailer.
(Jt. Exh. 10.)
Finally, in response to Froslear’s question about which part
of the contract he had violated, Butts said that “[Rottinghouse]
thinks the warning should be reduced to a verbal since this was
his first offense.” Froslear pointed out that this was not the first
offense. Butts then asked if the warning letter would stay in
Rottinghouse’s file for 12 months, Froslear said that it would.
Butts asked again if Froslear would reduce the written warning
to a verbal one, and Froslear still refused to do so, stating “[n]o
because it is not Steve’s first DOT violation and because of the
severity of this event.” (Id.)
Butts then stepped out to talk to Perkins and Rottinghouse.
Afterwards, Butts told Froslear that he considered the matter
“deadlocked,” and would be sending a letter documenting the
Union’s intensions to arbitrate and present the matter to the
“Unions Board.” (Id.)
C. Respondent’s Discipline Policies and Discipline Issued
1. CBA
The collective-bargaining agreement (CBA) between Re-
spondent and the Union Local 100,15 article 22 (rights of man-
agement section), set forth the manner in which Respondent
should take disciplinary action against employees who violated
rules and regulations. Its relevant parts state:
Disciplinary action taken by the Employer for violation of ei-
ther Company rules and regulations or employees’ violations of
articles contained herein, will be handled in the following man-
ner:
A. Written warning notice stating violation will be
given to employee, with a copy to Union and Union Stew-
ard and a copy becomes part of the employee’s personnel
file;
B. This written notice to be given within five (5)
working days of said violation;
. . .
E. The warning letter shall remain active in an em-
ployee[‘s] file for a period of twelve (12) months from the
date of such letter. After twelve (12) months, a warning
letter will not be used for progressive discipline.
F. Suspensions shall remain active in an employee file
for a period of eighteen (18) months. After eighteen (18)
months a suspension will not be used for progressive dis-
cipline.
(Jt. Exh. 4, p. 16.) Therefore, according to the CBA, all disci-

15 The collective-bargaining agreement (CBA) between Respondent
and the Truck Drivers, Chauffeurs and Helpers, Public Employees,
Construction Division, Airlines- Greater Cincinnati/Northern Kentucky
Airport and Miscellaneous Jurisdiction, Greater Cincinnati, Ohio Local
Union 100, an affiliate of the International Brotherhood of Teamsters
(the Union/Local 100) was effective from December 1, 2012 through
November 30, 2015.
AIRGAS USA, LLC 15
pline began with a written warning letter; there was no mention
of or provision for any type of verbal warning. (Jt. Exh. 4, p.
16.)
2. Airgas procedure/policy
There is little dispute that the Cin-Day facility management
discipline policy departed from the CBA’s article 22. Howev-
er, there was some disagreement, inconsistency, and apparent
confusion on Froslear’s part, as to when and how it did so.
When asked at hearing how Respondent’s employee “progres-
sive discipline policy” works, Froslear stated that “[f]or minor
offenses, in the past we would verbally approach the employee
and tell him what was going wrong. Per the contract, it starts at
written and then it’s suspension.”
As previously stated, Froslear addressed Respondent’s disci-
plinary policy during two safety meetings with employees in
April (28th). When asked if he told employees in those meet-
ings that they would receive verbal warnings for minor offens-
es, he responded that “during the meeting, what I told them was
that, moving forward, we were going to no longer—a verbal pat
on the back, hey, you forgot your safety glasses, that we were
going to have to document it.” (Id.) However, in connection
with Case 09–CA–152301, he gave sworn Board affidavit tes-
timony that:
At the meeting I wanted to make clear to the employees that
once they violated a rule for the second time, they would re-
ceive a written warning…In the collective bargaining agree-
ment for this facility…the disciplinary process says that an
employee will. . . get a written warning after the first violation
of rule . . . However, for example, if we see an employee not
wearing safety glasses we will first tell that employee to make
sure they are wearing their safety glasses. However, if we see
the same infraction again we will give that employee a written
warning.
(Tr. 25–26; GC Exh. 2.) After reading his affidavit testimony,
Froslear backtracked, and added that in those meetings, he told
the team that “. . . moving forward we were going to document
that conversation as a progressive discipline. I want to docu-
ment everything moving forward.” (Tr. 27.) When asked why
he stated in his affidavit that “[a]t the meeting I wanted to make
clear to employees that once they violated a rule for a second
time they would receive a written warning,” he said that “the
first one’s going to be a verbal documented. The second one
would be a written document. All will be documented.” (Id.)
He also claimed that he issued warning letters to employees
who repeated minor offenses and to employees who committed
major or serious first time violations. This is a clear departure
from his affidavit, in which he testified that he “never said that
the disciplinary process was changing” going forward, and
during which he never made any distinction between major and
minor offenses. (GC Exh. 2.)
In Luehrmann’s Board affidavit in Case 09–CA–52301, he
stated that Froslear used the hypothetical about safety glasses
“to illustrate his point about the disciplinary procedure,” and
tell employees that “if a manager saw an employee without
safety glasses, the manager would verbally remind the employ-
ee to make sure he was wearing his safety glasses. If the man-
ager then saw the same employee committing the same infrac-
tion, the manager would give that employee a written warning.”
Luehrmann testified that it “is the same disciplinary process
that has always been in place, Froslear simply wanted to make
sure all employees understood it;” he emphasized that “Froslear
did not change the disciplinary process or procedure” in those
meetings or threaten to do so. (GC Exh. 3; Tr. 102–103). Un-
like Froslear, Luehrmann’s hearing testimony regarding this
matter was consistent with his (Luehrmann’s) prior affidavit
testimony. Therefore, for purposes of this case, I credit Lueh-
rmann’s more consistent, testimony regarding statements made
by Froslear at those April employee safety meetings.
3. Discipline issued by Respondent
The General Counsel introduced evidence of disciplinary
statements issued to Respondent’s employees from 2011
through 2016, with various titles: verbal counseling, verbal
warning, written counseling, written warning, warning letter
and suspension.16 All of these statements, including verbal
counselings and warnings, were documented in writing. It was
undisputed that Froslear made no distinction between a “written
counseling,” “written warning” or “warning letter,” and consid-
ered them to be “equal.” (Tr. 82.)
A review of the history above shows that, more often than
not, Respondent handed out discipline a couple of days or more
after the incident in question. Therefore, it was not unusual that
Rottinghouse received his warning letter 3 days after the cylin-
der incident. In addition, it reflects that Respondent’s practice,
irrespective of the CBA, article 22 provision, was to issue doc-
umented and undocumented verbal counseling and warnings for
certain first time offenses. Respondent issued these types of
verbal discipline through September 21, 2015. (GC Exh. 4, pp.
6, 8–10, 13–16, 20.)
The only discipline of record for carrying an unsecured load
was a “written counseling” issued to employee Huff on March
10, 2011 for transporting unsecured cargo (on March 8) in the
form of a loose cylinder on the floor of the trailer, a pallet of
liquid containers secured with only one strap and another unse-
cured pallet. This was documented as a DOT violation, and he
was required to review DOT/Safecor driver requirements for
securing cylinders and to ride with the driver trainer. I note that
Rottinghouse received a written warning, but was not required
to take any remedial action other than to follow the rules. (GC
Exh. 4, pp. 1, 19; Jt. Exh. 1.)
Most verbal discipline was documented as a “verbal counsel-
ing” or “verbal warning.” In 2013, they were issued to: em-
ployee Hollander for leaving grease on the steering wheel of a
forklift; employee Carlo for not wearing proper leather gloves
when filling high pressure cylinders; and employee Jeffries for
a preventable backing accident. In 2014, they issued to em-
ployee Perkins for not wearing a seatbelt while using a forklift.
In 2015, to employees Huff and Kinkade for DOT violations of
clocking in 1-3 minutes early17, and to employee Oestreicher

16 See GC Exh. 4, pp. 1–21; GC Exh. 7. Respondent provided these
documents in response to the General Counsel’s subpoena duces tecum.
17 DOT regulations require that commercial truck drivers be off duty
for 10 consecutive hours prior to clocking in for their next shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
for talking on the cell phone while operating a tow mower.
(GC Exh. 4, pp. 6, 8–9, 13–15, 20; GC Exh. 7.) Another, dated
in 2013, and reduced to a verbal counseling from an unrecorded
greater discipline, issued to employee Reed for DOT violation
of driving while on the phone. This verbal counseling noted
that Reed’s conduct could have subjected him to a $2570 fine
and Airgas to an $11,000 fine. (GC Exh. 4, p. 10). Froslear
could not recall whether or not this discipline was reduced
through a grievance, but there is no doubt that it was reduced.
In addition, an untitled note, not written on the standard Airgas
form, reflected a discussion with an employee “Steve” in 2013
for a load verification mistake.18 (GC Exh. 4, p. 9.) There is
also evidence of two unwritten verbal discussions—one with
employee Baker on November 14, 2011 for a first offense of
not wearing safety glasses, and another with employee Haynes
in November 2013 for his first offense of improperly perform-
ing the pre-fill inspection process (costing the operation
$2500). (GC Exh. 4, pp. 3, 11).
“Written counseling” statements and “written warnings”
were issued as follows: in 2011, to employee Bowman for a
backing accident and employee Baker for a repeated incident
of not wearing safety glasses; in 2012, a second to Baker for
failing to complete and correct his trip load verification and
hazardous material manifest—actions that “cause incorrect
cylinder balances at our customer, incorrect stock level inter-
nally and violates DOT requirements;” in 2013, to employee
Hollander for not wearing a seat belt while operating a forklift,
noting that this followed a verbal warning for his first offense
of leaving grease on a steering wheel (see above); in 2014, to
employee Haynes for failing to fill cylinders and perform the
proper prefill inspection process “resulting in episodes uncov-
ered recently,” and which cost Airgas $4500; in 2016, to em-
ployee Huff for a preventable backing accident (ran into the
side of another company’s building). (GC Exh. 4, pp. 2–4, 7,
11–12, 21). The written warnings to employees Baker and
Hollander were the only instances of record where Respondent
issued written warnings after first giving some type of verbal
discipline for a violation of the same or another rule. (See
above; GC Exh. 4, pp. 3, 6–7.)
Of note, Baker received his second written warning within
about 6 months of his first, which did not mention the first one.
And, within about 5 months of the second warning, he received
a 3-day suspension for being caught on the road, during a DOT
inspection, without a valid medical certificate. The suspension
stated that “[t]his is not the first issue you have had following
DOT compliance as an Airgas driver.” (GC Exh. 4, pp. 3–5).
The only other suspension was the 3-day suspension given to
Rottinghouse on June 26, 2015. (GC Exh. 4, pp. 17–18.)
Froslear testified that Respondent considered more serious or
“major” Airgas or DOT violations to include incidents such as
backing or motor vehicle accidents, driving with unsecured
loads, “going down the road with incorrect paperwork” (failing

18 There was no evidence presented that this “Steve” was the Charg-
ing Party. Leurhmann testified that he signed this note, but was not
involved in the matter. However, the signature or initials on it appear
to be Froslear’s when compared to Froslear’s initials at the bottom of
Rottinghouse’s warning letter (Tr. 108; GC Exhs., pp. 4, 19.)
to provide complete and correct trip load verification and haz-
ardous material manifest), and driving a vehicle without a valid
medical certification.19 (Tr. 69–94.) He did not, however,
consider a first offense to be major when it resulted in Re-
spondent having to spend thousands of dollars in costs. (Tr.
94). I reiterate that he did not share these distinctions with
employees during the April employee safety meetings or in his
previously discussed Board affidavit.
There appears to have been at least two exceptions to
Froslear’s serious incident rule, wherein employees receive
warnings rather than verbal discipline for first time ma-
jor/serious violations. Regarding the first, employee Jeffries
only received verbal discipline for his preventable vehicle
backing accident on May 10, 2013. (GC Exh. 7.) This particu-
lar verbal warning, issued and signed by Luehrmann, was not
written on a standard Airgas discipline form. Luehrmann did
not recall whether or not he had received Froslear’s approval
prior to issuing the discipline, but did recall providing it to him
in connection with the General Counsel’s subpoena. Froslear
testified that he never knew about this incident prior to the
hearing. However, I discredit testimony that he was not famil-
iar with this verbal warning. Other evidence shows that he
approved discipline at the Cyn-Day plant. Nevertheless, both
he and Luehrmann considered a backing accident to be a seri-
ous offense. Next, I find it incredulous, that in employee
Reed’s case, Froslear did not consider a commercial truck driv-
er talking on the phone while driving on the road a serious
DOT infraction. He obviously believed it to have been at the
time, since it was reduced from some form of greater punish-
ment. Moreover, DOT apparently considered it to be a serious
or major violation since it levied substantial fines for such of-
fenses on both drivers ($2570) and their employers ($11,000)
(for Company). (GC Exh. 4, p. 10.)
According to Froslear, other examples of minor Airgas or
DOT violations included failing to wear gloves, leaving grease
on equipment, not wearing safety glasses, and clocking in a few
minutes too early. (Tr. 69–94.)
III. ANALYSIS
A. Preliminary Determinations
1. Evidentiary finding
Rottinghouse testified that during the August 6 meeting, he
asked Froslear to go check the 12-pack cradle that had been on
his truck to see if it rattled, but that Froslear refused to do so.
He claimed that the same cradle had been removed from his
truck, at an unspecified time by an unspecified person, between
August 3 and 6, and stored at the Cyn-Day plant until August 6.
He further testified that after the August 6 meeting, he (Rot-
tinghouse) he took a video recording, with audio, of him shak-
ing the same 12-pack. The General Counsel played this video
at the hearing; and, it indeed showed Rottinghouse moving a
12-pack cylinder bank back and forth, causing it to make noise.
The General Counsel offered this video to support Rotting-

19 Froslear also considered completing DOT paperwork off the clock
to be a severe violation. (See Rottinghouse’s suspension at Jt. Exh. 1 &
GC Exh. 4, pp. 17–18.)
AIRGAS USA, LLC 17
house’s claim that the noise that Froslear heard on August 12
came from the 12-pack of hydro cylinders, over which Rotting-
house had no control, versus the tilting cylinders. I admitted
this recording into the record; however, I give it little if any
evidentiary weight. The General Counsel failed to show that it
was the same 12-pack cradle, or that if it was, that it had re-
mained in the same condition (i.e., no chain of custody evi-
dence presented). Next, there is no evidence that Rotting-
house’s shaking demonstration constituted an accurate simula-
tion of motion and rattling that might have resulted from a sud-
den stop at the plant’s gate. (Tr. 152–161; Jt. Exhs. 1, 7, 9–10.)
2. 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 (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, supra at 622. Indeed, in
this case, I have believed witnesses on some points, but not on
others. If there is any evidence not recited herein that might
seem to impact the credited facts set forth, I have not ignored
such evidence, but considered it and determined it is not essen-
tial in deciding the issues, or I have rejected or discredited it as
not reliable or trustworthy.
Although I credited Rottinghouse’s testimony that he made a
sudden stop to avoid hitting the gate, I doubt his testimony that
the sudden stop caused the cylinders on his truck to tilt over.
During the August 6 disciplinary meeting, he never mentioned
that he believed that the cylinders on his truck tilted as a result
of his sudden braking at the gate. He did not offer this explana-
tion until the September 2 grievance meeting. (Jt. Exhs. 7, 9.)
(Jt. Exhs. 7, 9.) I find that if he really believed that his sudden
braking caused them to move, he would have told Froslear so at
the August 6 meeting. Therefore, I do not credit Rotting-
house’s testimony that he knew when or how the cylinders on
his truck must have moved. Rather, I find that he speculated
about what happened after he received the warning letter.
Next, I find that contrary to testimony by Perkins and Oes-
treicher (see below), the cylinders were not properly secured.
As stated, even Rottinghouse believed that they were not, and
accordingly, fixed them before resuming his route. He even
acknowledged that he should have been issued a verbal warning
rather than none at all.
There is no dispute that the cylinders on Rottinghouse’s
truck at some point tilted while they were being transported
back to the Cyn-Day plant, and that Rottinghouse was respon-
sible for loading and securing them. The dispute is whether or
not he properly secured before them leaving the GE site. He
believed that he did, and Froslear attributed the tilting cylinders
to his failure to do so. Although he did not see Rottinghouse
slam on brakes at the gate, Froslear testified that if such a stop
occurred, it would and should not have caused the cylinders to
lean over had they been properly fastened in the first place. (Jt.
Exh. 9.)
Testimony of Oestreicher and Perkins
Thus, there was a lot of back and forth among the parties’
witnesses about whether or not abrupt braking at the gate or
normal driving conditions would or could have caused properly
secured cylinders to become loose and lean over.20 The Gen-
eral Counsel’s witness, Oestreicher, testified that based on his
21 years of driver experience, it is quite possible and “in the
normal routine” for straps on cylinders to work their way down
during transport. However, he also stated that the cylinders as
depicted at Joint Exhibit 2 were in fact still secure because
“[t]hey’re not falling over. They’re not criss-crossed. They’re
not anything but standing upright and secure.” He also testified
that had he driven into the Cyn-Day plant parking lot with simi-
larly leaning cylinders, he probably would not have retied
them: “I mean, if it looks out of place, you would re-secure it.
But if the bottle is typically leaning a little bit, nothing.” (Tr.
174.) I discredit Oestreicher’s testimony. His testimony is not
reliable as the cylinders on Rottinghouse’s truck were clearly
not standing upright or properly tied.
Perkins, also an Airgas driver at the Cyn-Day plant, testified
cylinders such as those on Rottinghouse’s truck frequently
come loose under the following circumstances:
. . . if you don’t have those straps exactly right on those cyl-
inders the vibration, going down the road, or any kind of shift,
it holds—anything will drop those straps. Now, the straps are
still around and the cylinders are still secure. But there might
be sway in the cylinders . . . The cylinders look secure. The
straps go around. All I can tell you is that these pallets are not
designed to hold three or four cylinders. They are designed to
hold 14 cylinders, or 10 or eight. But when you start getting
three or four cylinders, and it’s hard to secure these cylinders.
(Tr. 186–188.) In his opinion, it was “[v]ery common” to have
to readjust the straps throughout the day due to normal driving
conditions. Like Oestreicher, he did not believe that the cylin-
ders in the photograph appeared to have been in danger of com-
ing completely loose or falling down. Unlike Oestreicher, he
admitted that if he had similarly tilted bottles on his truck, he
would have straightened and re-strapped them. (Id.) I find that
Perkins’ testimony was somewhat equivocal in that he admitted
that “if you don’t have those straps exactly right on those cylin-
ders the vibration, going down the road, or any kind of shift . . .
anything will drop those straps.” In addition, it is clear from
Respondent’s rules and regulations, that cylinders were to be
securely fastened no matter how many or how small they were.
Testimony of Froslear and MacBride
On the other hand, Froslear and MacBride testified that in
the normal course of driving an Airgas truck, it was almost
impossible for properly strapped cylinders to shift or tilt. Both
testified that the cylinders on Rottinghouse’s truck were not

20 There is no dispute, as stated above, that local drivers were re-
quired to check and make any readjustments necessary to their loads at
each stop.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
properly secured or nested, and at risk of falling. (Tr. 43–47,
195–200, 208–210.) Froslear went to great lengths describing
the appropriate nesting technique and how Rottinghouse had
not utilized it. (Tr. 43–47.) Froslear also testified that if the
cylinders on Rottinghouse’s truck were “tilted over in the first
place, they are loose,” and that going down the highway, it was
possible for them to break free of the straps. He explained that
the “small cylinder could have easily fell out. Notice at the top,
that strap is just at the cap level. That cylinder, that’s nothing
stopping it at the bottom from slipping down and coming out.”
(Tr. 36–37.) With some degree of hesitation, he finally admit-
ted that it was not common, but possible for properly secured
cylinders to come loose. (Tr. 43–45.)
MacBride testified that “[e]xcessive slamming on brakes
could cause moving of cylinders.” Initially, he defined exces-
sive braking as “[g]oing 40,50 miles an hour and slamming on
the brakes to the point you’re almost skidding . . .” He insisted
that even then, “[p]roperly strapped cylinders should not move
on your truck” under those circumstances. When asked if com-
ing to a sudden stop after accelerating through an open gate
from a stopped position would cause properly strapped cylin-
ders to shift, he answered “absolutely not.” When asked if
improperly strapped cylinders would shift, he said “yes.” (Tr.
195–200, 208–209.) He further stated that it would be consid-
ered a serious out-of-service DOT violation if caught on the
road, of which management and the driver would be fined. In
his opinion, “moving cylinders are moving cylinders,” no mat-
ter whether they are tilted over or freely falling and/or moving
inside of a pallet on a truck. The DOT employee would write it
up the same way. (Tr. 212.) However, he admitted that it is
appropriate to physically inspect cylinders. Moreover, he testi-
fied that if he saw a driver with leaning cylinders, he would go
find the driver and tell him to fix it. (Tr. 213–214.)
I discredit testimony of Rottinghouse, Perkins, and Oestrei-
cher that properly secured cylinders routinely become loose
under normal driving conditions. If this was the case, there
would likely have been some evidence of drivers receiving
DOT citations or more drivers receiving some type of disci-
pline. Further, I certainly do not believe that Airgas and DOT
requirements for drivers to check their loads at each stop only
exist because it is common place for appropriately secured
loads to become loose. Nor do I find it impossible for properly
secured cylinders to become loose under certain conditions.
However, I credit MacBride’s testimony that stopping suddenly
at the gate under the circumstances set forth by Rottinghouse
would not have caused properly secured cylinders to tilt. Rot-
tinghouse entered the gate, stopped to open it and began to
move through the gate before having to hit his brakes. Alt-
hough there was no evidence as to Rottinghouse’s speed after
he reopened the gate and entered the plant yard, I find it im-
plausible that it would have been fast enough such that hard
braking would have caused appropriately tied cylinders to loos-
en and lean over. Therefore, I find it more likely than not, that
the cylinders on Rottinghouse’s truck were not properly fas-
tened when he left the GE stop.
On the other hand, I discredit Froslear’s testimony that he ac-
tually saw the cylinders fall or even tilt when Rottinghouse
stopped in the yard. His testimony on this point was equivocal,
hesitant and largely inconsistent with other statements. He
initially testified that he saw the cylinders falling when Rot-
tinghouse pulled into the yard, but on further questioning, ad-
mitted that they did not fall, but rather tilted. Further, he failed
to mention in his emails to MacBride on August 5 that he saw
the cylinders on Rottinghouse’s truck move. Instead, he wrote
that “[t]his is the way it was when he pulled in after his run.”
(Jt. Exh. 3.) Moreover, the warning letter stated that Froslear
“was in the parking lot when he heard rattling and saw you
pulling into the yard. When he went to investigate the noise, he
saw that you had a pallet on your truck that was not properly
strapped, which was causing the noise.” When he gave Rot-
tinghouse the warning letter on August 6, he said that he “wit-
nessed SR pulling into the yard, I heard loose cylinders rattling
and when SR came to a stop saw them move, fall forward.” (Jt.
Exhs. 1, 7.) It is my opinion that more likely than not, as set
forth in the warning letter, Froslear did not see that the cylin-
ders were loose and tilted until after Rottinghouse parked in the
yard. Thus, I find that he fabricated this part of his story in
order to bolster his reasons for issuing the warning letter.
Further, I have discredited Froslear’s testimony that he did
not see Rottinghouse when they were both near Rottinghouse’s
truck. Froslear claimed that he did not know where Rotting-
house was, but he certainly knew that he was somewhere on the
premises. In addition, he knew to watch through a window to
see what Rottinghouse would do next after he (Froslear) fin-
ished taking the pictures. I do not believe that it was mere co-
incidence that he happened to be looking out the window when
Rottinghouse was re-securing his cylinders. Moreover, I find
that Froslear’s actions were incongruent with those of a manag-
er concerned about safety or even about his drivers or Company
receiving DOT citations and fines for driving with unsecured
loads.
Neither Froslear nor Rottinghouse were entirely honest re-
garding their versions of events on August 3. However, I find
that overall, Froslear was far less credible. I find that Froslear’s
inconsistent and unbelievable testimony about discipline, mis-
representation about falling cylinders, dishonesty about not
seeing Rottinghouse outside near the truck, failure to physically
examine the cylinders on the truck and failure to find Rotting-
house and correct the unsecured cylinders support my finding
below that he was not credible regarding his real reasons for
issuing Rottinghouse’s warning letter and not agreeing to re-
duce it to a verbal counseling or warning.
B. Legal Standards
Under Section 8(a)(4) of the Act, it is unlawful for an em-
ployer to discipline or otherwise discriminate against an em-
ployee because he/she has filed charges with the Board, has
testified in Board proceedings and/or has provided testimony in
Board investigations. NLRB v. Scrivener, 405 U.S. 117 (1972).
In cases in which motive is an issue, the Board analyzes
8(a)(4) and (1) violations under the Wright Line framework.21

21 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Corp., 462 U.S. 393 (1983). See also, Newcor Bay City
Division, 351 NLRB 1034 fn. 4 (2007); Verizon, 350 NLRB 542, 546–
AIRGAS USA, LLC 19
The burden is on the General Counsel to initially establish that
Respondent’s decision to take an adverse action against an
employee was motivated, at least in part, by protected Board
participation. In order to meet this burden, the General Counsel
must show that the employee engaged in activities protected by
the Act; the employer was aware of the activity; and the activity
was a motivating factor in the employer’s adverse decision.
Once the General Counsel has met its initial showing sufficient
to support an inference that protected conduct was a motivating
factor in the employer’s decision, the burden shifts to the em-
ployer to that it would have taken the same action even in the
absence of the protected conduct. (Id.)
The Board will consider circumstantial as well as direct evi-
dence to infer discriminatory motive or animus, such as: (1)
timing or proximity in time between the protected activity and
adverse action; (2) delay in implementation of the discipline;
(3) departure from established discipline procedures; (3) dis-
parate treatment in implementation of discipline; (4) inappro-
priate or excessive penalty; and (4) employer’s shifting or in-
consistent reasons for discipline. CNN American, Inc., 361
NLRB No. 47 (2014) (citing W. F. Bolin Co. v. NLRB, 70 F.3d
863, 871 (6th Cir. 1995); Camaco Lorain Mfg. Plant, 356
NLRB 1182, 1185 (2011); Praxair Distribution, Inc., 357
NLRB 1048, 1048 fn. 2 (2011).
C. The Initial Burden Was Met
Here, it is undisputed that Rottinghouse engaged in Board
activity protected by Section 8(a)(4) of the Act when he filed
prior charges with the Board on May 14 and on July 7. There is
also no genuine controversy that the Board processed and in-
vestigated these charges until they were resolved in September
(see above). Although Respondent indicates in its Brief that it
was not aware of Rottinghouse providing affidavits in these
cases, it is clear from the evidence that the Board conducted
investigations in each of them. In the first, both Froslear and
Luehrmann provided affidavits, and I seriously doubt that the
Board would have decided not to elicit testimony from the
Charging Party. As for the latter, it is clear that the Board con-
ducted a thorough investigation, and there is no evidence that
the Charging Party and Respondent’s management officials did
not participate in that investigation. (GC Exhs. 2–3; Jt. Exhs.
6–7.) Therefore, I find that Respondent not only knew that
Rottinghouse filed charges under the Act, but also should have
known that he participated in Board investigations of those
charges. I have also credited testimony that Froslear participat-
ed in an August 5 grievance meeting regarding the suspension
made the basis of Rottinghouse’s July 7 charge.
The only element left for me to determine is whether or not
the General Counsel has established a prima facie case of ani-
mus. First, I find that the timing of the warning in this case is
suspicious, in that it closely followed Rottinghouse’s second
charge in Case 09–CA–155497 by only 1 month. I dismiss
Respondent’s argument that timing here is not determinative
because Rottinghouse’s filed his first charge in Case 09–CA–
152301 almost three months prior to issuance of his warning

547 (2007); American Gardens Management Co., 338 NLRB 644, 645
(2002).
letter. (R. Br. at 10–11.) The investigation in that case was
ongoing as evidenced by the affidavits of Froslear and Lu-
erhmann, signed and sworn before the Board agent on July 13,
and as previously discussed, did not close until September.
Further, Respondent’s reliance on M&G Convoy, 287 NLRB
1140, 1144–1145 (1991), on this point is misplaced. In that
case, the Board affirmed the judge’s determination that there
was no “credible evidence” that Respondent took any adverse
action based on the charging party’s protected activity. That
decision was based on factual findings that although the decid-
ing official generally knew about the charging party’s protected
activity, he was not involved or implicated in any of the inci-
dents “which could fairly give rise to an inference of animus.”
Here, Froslear was involved, and the implicated official in both
of Rottinghouse’s charges, as well as the deciding official in
connection with his suspension. Further, although the Region
dismissed Rottinghouse’s most recent charge regarding his 3-
day suspension, this did not occur until almost two months after
issuance of his letter of warning. Finally, in M&G Convoy,
supra, the judge placed emphasis on the fact that timing was the
primary basis for showing motive. Such was not the case here.
In addition to timing, I find that Froslear’s actions on August
3 demonstrate a complete lack of concern for safety, which is in
direct contrast to his testimony about the main reason that he
issued Rottinghouse a warning letter. Most striking is his fail-
ure to locate Rottinghouse and address the conditions of the
cylinders on Rottinghouse’s truck immediately after he discov-
ered that they were not securely fastened. Froslear’s failure to
attempt to promptly correct what he described in testimony as
an extremely dangerous situation, along with his overall dis-
honesty discussed above, leads me to doubt his real motive in
disciplining Rottinghouse. He and MacBride gave pretty de-
tailed testimony about how improperly secured and/or nested
cylinders posed such great risk of danger to the public. They
claimed that the improperly loaded cylinders, as they appeared
in Joint Exhibit 2, were at risk of falling down and off of Rot-
tinghouse’s truck. In fact, MacBride admitted that had he dis-
covered the tilted cylinders, he would have tried to find the
driver to correct them. I do not disagree that unsecured cylin-
ders pose a potential risk of harm to the driver and others.
However, I take great issue with the fact that Froslear allowed
Rottinghouse to get out of his truck and go inside the facility
without looking for him, while he was “concentrating” on get-
ting his camera and taking a picture of the cylinders on the
truck. (Tr. 39–41.) Next, he took pictures, but did not attempt
to physically examine the cylinders to see if they were loose,
movable or making noise when moved. Nor did he physically
examine them to see how loose they or the straps around them
were. Then, he went back inside the plant, and stood idly by,
apparently watching to see what Rottinghouse would do next.
Froslear also testified that he would not have let a driver return
to the road with unsecured cylinders. However, his conduct
suggests otherwise. There is no evidence which leads me to
believe that, had Rottinghouse not straightened and re-secured
the cylinders on his truck, Froslear would have run out to make
him do so before he returned to the road.
Although counsel did not ask how Froslear could tell from a
window inside the plant that Rottinghouse had properly nested
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
and secured cylinders, it is implausible that he would have been
able to even make that assessment without going out to the
truck, and looking at and/or physically examining them. In
addition, given that Froslear described in such detail how Rot-
tinghouse had not nested the cylinders, it is surprising that he
never mentioned anything about nesting in his emails to Mac-
Bride, the warning letter or any of the subsequent meetings
with Rottinghouse and the union representatives. He did not
even require, in the warning letter, that Rottinghouse review
training on securing or loading cylinders.
I have also discredited Froslear’s testimony that he did not
see Rottinghouse when they were both near Rottinghouse’s
truck. Overall, in my opinion, Froslear demonstrated that he
was out to get Rottinghouse, and therefore more intent on
catching and punishing him for reasons other than ensuring
public safety or protecting Airgas from liability.
Regarding disparate treatment or departure from established
discipline procedures, and contrary to Froslear’s testimony,
there is evidence that at least two other employees received
verbal counselings for more serious DOT violations. I find that
this departure, his inconsistent testimony regarding established
discipline policy, as well as other factors leading to diminished
credibility, create an inference of animus. His testimony re-
garding what he told employees in the April safety meetings
was inconsistent with his Board affidavit testimony and with
that of Luehrmann. He testified that he was establishing new
discipline policy going forward, but the record shows that Re-
spondent issued verbal counseling to employee Edger Reed in
November 2013 for talking on the phone while driving—an
infraction for which Reed and Respondent could have been
subjected to large fines. I discredited Froslear’s testimony that
this was not a serious DOT violation, and found it alarming that
he would not have considered a commercial truck driver driv-
ing along the highways while talking on the phone a serious
DOT violation. It is certainly as potentially dangerous as a
truck driving with slightly leaning cylinders, and both are DOT
violations. Therefore, I find that Respondent departed from its
stated policy for issuing written and verbal warnings. In addi-
tion, employee Jeffries received a verbal warning for a major
preventable backing accident.
In that vein, Respondent denies disparate treatment on its
part since it treated Rottinghouse and Huff the same in issuance
of discipline. Huff received a written counseling and Rotting-
house a written warning, both deemed to be equal in magni-
tude. Froslear testified that the leaning cylinders on Rotting-
house’s truck were just as dangerous as those on employee
Huff’s truck in 2011, in that they were at risk of coming com-
pletely loose and falling. As stated, Huff’s cylinders included
one fallen on its side, another pallet of liquid filled bottles with
only one strap and another unsecured pallet. (GC Exh. 4, p. 1.)
It is clear to me that the cylinders on Huff’s truck posed a much
greater risk of danger than those on Rottinghouse’s truck. In
fact, Respondent must have believed that to be the case since it
mandated Huff to review DOT/Safecor and driver requirements
for securing cylinders with his supervisor and ride with the
driver trainer. In contrast, as mentioned earlier, Respondent
only directed Rottinghouse to “take personal responsibility for
creating and maintaining a safe environment,” to properly se-
cure cylinders and follow other DOT/safety procedures.
I do not believe Froslear’s testimony that he issued the warn-
ing letter as a form of progressive discipline. It was not a stated
reason in the warning letter nor was it mentioned during the
September 2 discipline meeting. In fact, Froslear’s suspension
was not noted at all. Instead, the first time that Froslear
brought up Rottinghouse’s first offense was during the second
grievance meeting on September 23, and then only in response
to Butts’ claim that Rottinghouse believed he should have re-
ceived a verbal warning since it was his first offense. If this
was a sincere basis for issuing the discipline, I find that it
would have been included in the warning letter and confirmed
during the August 6 discipline meeting. Moreover, during the
September 2 grievance meeting when Perkins told Froslear that
Rottinghouse’s warning should have been a verbal pursuant to
CBA Article 22, Froslear responded that the contract necessi-
tated a written warning notice for an employee’s violation. This
was not only inconsistent with other evidence that Respondent
did not follow article 22 to the letter, but it was also contrary to
Respondent’s reducing employee Reed’s discipline to a verbal
counseling and Respondent’s other reasons for issuing the
warning letter—progressive discipline and the severity of the
infraction. There is no doubt from the evidence presented, that
Respondent had an established practice of issuing both verbal
and written warnings, in writing and undocumented for various
types of rule violations.
Finally, Froslear’s out to get you attitude towards Rotting-
house is also supported by his email to MacBride, insistence
that MacBride find the “strongest language” about securing
cylinders and failure to conduct a meaningful investigation, as
well as his made up story about seeing falling cylinders.
I have considered all of the arguments and case law offered
by the General Counsel22 and Respondent, even that not specif-
ically mentioned in this decision. Regarding Respondent’s
arguments regarding the omission of settlement agreement and
pre-settlement conduct connected with his charge/Case 09–
CA–152301, I find they are misplaced here. (R. Br. at 11–15.)
The cases cited do not involve similar circumstances as in this
case, and there is no need to engage in a detailed discussion of
them. Moreover, the prior charge and pre-settlement conduct
was only used in this case as evidence in connection with pro-
tected activity and credibility.23 The Board has held that settle-
ment agreements do not preclude consideration of pre-
settlement statements or conduct as evidence shedding light on
a respondent’s subsequent discipline of a charging party. See
Kaumagraph Corp., 316 NLRB 793, 794 (1995) (evidence of
presettlement conduct admissible as background for respond-
ent’s motivation).
Therefore, based on the evidence as a whole, I conclude that
the General Counsel has met its initial burden of persuasion

22 I dismiss the General Counsel’s argument that the 3-day delay in
issuing Rottinghouse’s warning letter inferred animus, as I previously
found that it was not unusual for Respondent to issue discipline several
days after an offense occurred.
23 As evidenced in this decision, I have dismissed Respondent’s ar-
gument that Froslear’s hearing and Board affidavit testimony in Case
09–CA–152301 was consistent; rather, it was anything but and raised
suspicion about Fro sear’s motivation in this case. (R. Br. at 11–15.)
AIRGAS USA, LLC 21
under Wright Line of showing through sufficient circumstantial
evidence that Respondent’s motivation for the written warning
was motivated by his disdain for Rottinghouse’s repeated
charge filings with the Board.
D. Respondent Failed To Meet Its Burden of Showing That It
Would Have Disciplined Rottinghouse In The Absence of His
Protected Activity
First, I find that such shifting and inconsistent rationales,
and incredibility, as set forth above support a finding that
Froslear’s reasons for disciplining Rottinghouse are pretextual.
See Lucky Cab Co., 360 NLRB No. 43, slip op. at 4 (2014)
(shifting reasons for an employer’s adverse actions are not
only persuasive evidence of discriminatory motive, but also
serve as evidence of pretext); Approved Electric Corp., 356
NLRB 238 (2010) (citing City Stationery, Inc., 340 NLRB
523, 524 (2003); GATX Logistics, Inc., 323 NLRB 328,
335 (1997) (“Where . . . an employer provides inconsistent or
shifting reasons for its actions, a reasonable inference can be
drawn that the reasons proffered are mere pretexts designed
to mask an unlawful motive.”).
Moreover, my findings thus far regarding the factors leading
to animus also undermine the Respondent’s ability to rebut the
General Counsel’s prima facie case of unlawful discipline. Ac-
cordingly, I conclude that under a Wright Line analysis, the
Respondent violated Section 8(a)(4) and (1) by issuing Rot-
tinghouse a letter of warning.
CONCLUSIONS OF LAW
1. Respondent, Airgas USA, LLC, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By issuing Charging Party, Steven Wayne Rottinghouse,
Jr., a written warning on August 6, 2015, Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act and violated Section
8(a)(4) and (1) of the Act.
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. Specifically, Respondent shall make Rot-
tinghouse whole by expunging from its files any reference to
the unlawful letter of warning dated August 5, 2015, and issued
to him on August 6, 2015.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent, Airgas USA, LLC, Cincinnati, Ohio, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from

24 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.
(a) Issuing discipline to employees, or otherwise discriminat-
ing against them, for giving affidavits, filing charges or other-
wise participating in the National Labor Relations Board pro-
cess.
(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-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful letter of warn-
ing, and within 3 days thereafter notify him in writing that this
has been done and that the letter of warning will not be used
against him in any way.
(b) Within 14 days after service by the Region, post at its fa-
cility in Cincinnati, Ohio, copies of the attached notice marked
“Appendix.”25 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 its em-
ployees 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 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 5, 2015, the date of the letter of warning.
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 9 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated Washington, D.C. July 7, 2016
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

25 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 BOARD22
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 discipline employees or otherwise discriminate
against them because they have provided an affidavit, filed a
charge or otherwise participated in the National Labor Rela-
tions Board process.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your right under Section
7 of the Act, as set forth at the top of this notice.
WE WILL, within 14 days from the date of this Order, rescind
and remove from our files any and all references to the letter of
warning dated August 5, 2015 and issued on August 6, 2015, to
Steven Rottinghouse, Jr. and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the letter
of warning will not be used against him in any way.
AIRGAS USA, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-158662 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, DC 20570, or by calling
(202) 273–1940.